By William Fisher
The conviction of Jose Padilla - whose larger implications are being labeled by legal experts as one of today's most significant Constitutional issues - has been largely ignored by editorial writers at the nation's newspapers.
While hundreds of US dailies ran the story of the guilty verdict handed down against the Brooklyn-born "dirty bomber" last week, few front-paged the conviction, and the trial and its outcome drew editorial comment from only a relative handful of publications.
Among the exceptions was a small number of the naton's 1,400-plus newspapers that have consistently opposed the Bush Administration's approach to the "global war on terror" - and a few that have been staunch supporters of that approach.
Yet virtually all Constitutional scholars and civil liberties advocates remain outraged that a US citizen was held virtually incommunicado in a navy brig for years before getting his day in court.
While few express any support for Padilla, most view his case as raising critical issues that go far beyond his three-month Miami trial.
Their issues range from questioning the authority of the president to declare anyone, including a US citizen, an unlawful enemy combatant; the Constitution's guarantee of a speedy trial and the right to confront one's accusers; Padilla's capacity to participate in his own defense after allegedly being abused while being held in solitary confinement for more than three years; and the legality of the concept of prolonged "preventive detention."
Larry Cox, executive director of Amnesty USA, summed up the position of much of the civil liberties community. Padilla's trial, he said, "failed to address a key issue which poses a great threat to all Americans -- detention of a US citizen without charge, as well as alleged torture and ill-treatment during detention."
He added, the jury's verdict "cannot be seen as an endorsement of a regime of unreviewable executive detention. President Bush should not take today's ruling as permission to continue to hold Americans outside the law at his whim."
The Padilla story began in May 2002, when he stepped off a plane in Chicago and was met by federal agents armed with a material witness warrant, which enabled them to arrest him without a criminal charge.
Padilla spent a month in a jail in New York on that warrant, until President Bush declared him an enemy combatant, sparking a lengthy Legal battle over presidential powers to detain US citizens indefinitely.
During that period, then Attorney General John Ashcroft hastily called a news conference during a visit to Moscow to announce Padilla's arrest and his intention to detonate a radioactive "dirty bomb" in a major US city and to blow up apartment buildings.
Padilla was then transferred to a Navy brig in Charleston, S.C., where he was held incommunicado, refused access to a lawyer, and allegedly tortured. He was not charged with a crime or afforded basic constitutional rights until late 2005, when the Supreme Court was poised to consider his appeal.
His three-month trial opened in Broward County, where Padilla once lived. The 36-year-old and two co-defendants were quickly found guilty of conspiracy to murder, kidnap and maim people, as well as providing material support to terrorists. Between his arrest and his trial, the "dirty bomb" allegation disappeared. Unless his conviction is reversed on appeal, Padilla faces life imprisonment.
Padilla's conviction "is a significant victory in our efforts to fight the threat posed by terrorists and their supporters,'' Attorney General Alberto Gonzales said in a statement. "As this trial demonstrated, we will use our authority as prosecutors to dismantle terrorist networks and those who support them in the United States and abroad.''
During the period when Ashcroft and other Bush Administration officials were trumpeting the "dirty bomb" charges, some of the nation's editorial writers became cheerleaders for the Bush Administration's approach to counter-terrorism.
But most - with a few exceptions -- have been silent on the Padilla verdict. One of the exceptions is the Charleston S.C. Evening Post, which hailed the verdict as a "Double Victory" and a "resounding vindication of the Bush Administration's policy of preventing acts of terror."
Said its editorial page, "In May 2002, when Padilla was arrested, the major concern was to prevent another attack. Padilla wanted to carry out murder and mayhem on a similar scale of horror to 9/11. He was prevented from doing so and had his day in court. Score a victory for counter-terrorism and for American justice."
But most of the few newspapers that editorialized on the verdict took another view. Typical was the Sarasota (Fla.) Herald Tribune, which wrote, "Military courts have their place, and foreigners are not entitled to all the protections of US citizens. But Padilla was born in America and arrested on US soil. His case belonged in the US courts, where prosecutors finally demonstrated that they did, in fact, have a case against him."
Other Florida newspapers also weighed in editorially. The South Florida Sun-Sentinel opined, "There shouldn't be any displeasure that Jose Padilla was found guilty in a Miami courtroom of supporting terrorism. The speed in which the verdict was returned indicates the jury was convinced of his guilt. But there should be plenty of concern about how the entire case was mishandled by the federal government, and the Bush administration, which has its own definition of citizen rights and protections. It is hard for anyone to feel good about the way this case went forward.
"Some critics of Bush's strategy say the nation should rely less on military might to fight terrorism and focus more on tracking down al-Qaida and other groups through criminal investigations. The Padilla case indicated that charges against American citizens, at least, can be successfully prosecuted in civilian courts without resorting to secret military tribunals."
And the Daytona Beach News-Journal, an aggressively anti-Bush daily, said in an editorial entitled "Jose Padilla verdict masks a gross travesty", "A jury in Miami took less than two days to find Jose Padilla guilty of conspiracy to fund and support Islamic terrorism abroad. It's not quite the end of the story, if rights and due process are to matter at all in America.
"The Padilla verdict ...coming as it did at the end of a five-year odyssey of exaggerated accusations and stunning abuses of power against an American citizen, speaks more of the Bush administration's manipulation of fears, facts and prejudices to deceptive ends than of justice done. Why should this case matter to you? Because the abuses it entailed along the way have yet to be rectified either by Congress or the Supreme Court. Until then, what happened to Padilla can happen to anyone."
Nearby, the Palm Beach Post's editorial -- "Arbitrary Justice" -- oncluded: "Guilty, the right way." Meaning, in a civilian court.
Elsewhere, editorial coverage was arguably more predictable.
Said The New York Times, "It is hard to disagree with the jury's guilty verdict against Jose Padilla, the accused, but never formally charged, dirty bomber. But it would be a mistake to see it as a vindication for the Bush administration's serial abuse of the American legal system in the name of fighting terrorism. On the way to this verdict, the government repeatedly trampled on the Constitution, and its prosecution of Mr. Padilla was so cynical and inept that the crime he was convicted of - conspiracy to commit terrorism overseas - bears no relation to the ambitious plot to wreak mass destruction inside the United States, which the Justice Department first loudly proclaimed. Even with the guilty verdict, this conviction remains a shining example of how not to prosecute terrorism cases."
A similar note was struck by The Washington Post, which wrote, "Every person held by the government -- US citizen or not -- must have due process to challenge that detention. The presumption must be that US citizens can rely on the federal courts to oversee their prosecutions. And Mr. Padilla's abhorrent disappearance into limbo should come to be remembered as an aberration never to be repeated."
A somewhat different theme appeared in the Los Angeles Times. "Padilla's importance is in what it sanctions but did not decide: the government's confinement of US citizens without charges. Padilla's military detention and his treatment while detained may in fact have been unlawful. The Bush administration's real victory, then, was in preventing the courts from saying so."
Said The Baltimore Sun, "Jose Padilla was a petty criminal who found Islam in an American prison and thought that in jihad he could amount to something. He didn't: One government intelligence report suggests that the idea of a dirty bomb was a ruse to allow him to get away from the al-Qaida camp where he was staying. He's pathetic, actually. Yet because of someone like this, the Bush administration was willing to junk the Constitution and redefine the legal system as it saw fit. That's the real crime."
And the widely respected Christian Science Monitor wrote, "America can't win a global war to defend its values by stepping on them...One protection from Islamic terrorists lies in clinging to the civic virtues that terrorists seek to end. Such values are a source of safety and should not be eroded in trying to kill, capture - or prosecute - suspected terrorists. One of America's strengths in this war lies in being able to rally other nations to its side by upholding universal principles. That same strength also weakens terrorists."
Editorial writers will doubtless have another chance to weigh in on the issues raised by the Padilla prosecution - as he appeals his conviction.
According to Marjorie Cohn, president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, there are numerous avenues for appeal. She told Truthout, "The appeals court erred in upholding the government's authority to imprison a US citizen for several years without charges. The government violated Padilla's due process rights by failing to bring timely charges against him. Finally, Padilla's lawyers' motion to declare him incompetent to stand trial because of the torture and abuse to which the government subjected him during his pretrial detention was wrongly denied. Any of these errors, or all of them cumulatively, could result in reversal of Padilla's convictions on appeal."
But the consensus among civil libertarians is perhaps best summed up by one of the nation's leading Constitutional law experts. According to David Cole, Professor at Georgetown University Law Center, "The conviction shows that the government did not need to assert the extraordinary power to detain Padilla without charges for several years. But at the same time, because of how they treated Padilla in detention and others in CIA black sites, the government was never able to bring him to trial on the much more serious charges of plotting a 'dirty bomb' and blowing up apartments in the United States. In essence, the administration gambled that it could get Padilla on something, even if it couldn't hold him responsible for what they say he was planning to do. In this instance, they prevailed. But do we really want the government gambling with our national security?"
Whether editorial writers will opt to try to address that question next time around remains to be seen.
Saturday, August 18, 2007
Sunday, August 12, 2007
RELIGIOUS GROUPS MOBILIZE TO DEFEAT BUSH PRISONER POLICIES
By William Fisher
The Bush Administration's policies for treatment of prisoners in the
so-called "global war on terror" are being challenged by a consistently under-reported segment of America's "faith communities" - long dominated by right-wing televangelists such as James Dobson, Jerry Falwell and Pat Robertson.
A coalition of more than 125 Christian, Jewish, Muslim, Sikh and other religious organizations - collectively known as NRCAT, the National Religious Campaign Against Torture - is conducting an increasingly robust and sophisticated lobbying and grassroots action campaign to override an executive order by President Bush that permits the Central Intelligence Agency to use undefined "alternative interrogation techniques" in questioning alleged terror suspects.
According to NRCAT's organizer, Rev. George Hunsinger, a professor at the Princeton Theological Seminary, "More than 20,000 people of faith have endorsed NRCAT's Statement of Conscience", entitled, "Torture is a Moral Issue."
Heading the coalition is Linda Gustitus, former Chief of Staff to Senator Carl Levin (D-Michigan). Gustitus, a Washington attorney with 24 years of Capitol Hill experience, is a Unitarian and is also co-chair of the Washington Region Religious Campaign Against Torture (WRRCAT).
Coalition members include such prominent religious groups as Adventist Peace Fellowship, the American Baptist Churches USA, the Evangelical Lutheran Church in America, the Fellowship of Reconciliation, the General Board of Global Ministries of the United Methodist Church, the Islamic Society of North America, the Jewish Council for Public Affairs, the National Council of Churches, the Presbyterian Church (USA), the Union for Reform Judaism, and the World Sikh Council - American Region.
The focus of the Coalition's campaign is passage of legislation known as the "Restoring the Constitution Act of 2007," introduced in mid-February of this year by Sen. Chris Dodd (D-Ct.). It would repeal portions of the Military Commissions Act of 2006 (MCA). Similar legislation was introduced in the House of Representatives by Rep. Jerrold Nadler (D-NY) in March.
Ms. Gustitus called the Bush Executive Order "another shameful step in the US treatment of detainees in the 'war on terror'." She said, "As people of faith -- who value our common humanity and our religious responsibility to treat all people with decency and the due process protections of civilized law -- we urge the President immediately to stop the use of interrogation techniques that are cruel and inhuman, to disclose what the "alternative interrogation techniques" are, to close all secret prisons, to stop rendition to countries that torture and to give the International Red Cross access to detainees held in U.S. custody. We call on Congress to prohibit the use of any CIA funds for programs or activities that fail to treat all persons detained with decency and the protections of due process."
The Military Commissions Act, passed by Congress in late 2006, defined and established enemy combatant status, laid out procedures for Military Commissions trying those charged by the US with criminal violations in association with the administration's "global war on terror," authorized the president to define what acts constitute torture, and eliminated the protection of habeas corpus for non-citizen detainees.
The NRCAT coalition is also supporting pending legislation that would restore habeas corpus authority to the federal courts to hear habeas petitions from US-held detainees, and a bill that would stop the practice of 'extraordinary rendition' in which detainees are secretly sent to countries that have a known history of prisoner torture and other human rights abuses.
While Congress departed for its August recess without acting on the Dodd and similar legislation, Rev. Hunsinger told Truthout that NRCAT "will push for action in the fall." However, he predicted that "it is most likely the Dodd bill will be addressed piecemeal, in specific items, as opposed to the whole bill."
The reason, according to Hunsinger, is that "the coalition's strategy of trying to attach the habeas restoration legislation to the Defense Department authorization bill did not work" because Senate Republicans "threatened to filibuster."
The DOD authorization bill is scheduled to come up again in September.
The Dodd legislation reasserts US adherence to the Geneva Conventions, assuring humane treatment for all prisoners, military and civilian; prohibits evidence obtained through torture to be used in court; returns the US to outlawing hearsay testimony and testimony obtained through coercion; holds accountable those who have authorized or committed acts of torture; removes the power of the President to decide who is an "enemy combatant"; and restores detainees' right of habeas corpus to challenge the reason for their imprisonment.
The Bush executive order, issued last month following a series of court defeats of Administration detention policies, prohibits the use of torture but allows the CIA to continue to use undefined and undisclosed "alternative interrogation techniques."
NRCAT chair Gustitus says this caveat "calls into question whether the prohibition is real." In addition, she says, the executive order "does not close secret prisons nor prohibit sending detainees to countries which have been known to use torture in interrogation (rendition to torture), nor assure that every detainee has access to the International Red Cross."
Among NRCAT's more remarkable members are a number of heavy-hitters who are members of the Christian evangelical community, which has often remained silent on issues such as detainee torture and rendition while focusing on its more customary hot-button "values" issues like abortion and gay marriage.
One of NRCAT's more prominent evangelicals is Dr. David P. Gushee, Professor of Moral Philosophy at Union University, a leading Baptist institution located in Jackson, Tennessee. Gushee is also co-chair of Evangelicals for Human Rights (EHR).
Gushee was among a group of 17 prominent evangelical leaders and scholars who issued "An Evangelical Declaration Against Torture: Protecting Human Rights in an Age of Terror" last month.
Writing "as Christians and US citizens," the Declaration's authors declared:
"We renounce the resort to torture and cruel, inhuman and degrading treatment of detainees, call for the extension of procedural protections and human rights to all detainees, seek clear government-wide embrace of the Geneva Conventions, including those articles banning torture and cruel treatment of prisoners, and urge the reversal of any US government law, policy or practice that violates the moral standards outlined in this Declaration."
The Declaration was endorsed by board of the National Association of Evangelicals, a body claiming to represent 45,000 evangelical Protestant churches with 30 million members.
But it also drew sharp criticism from religious conservatives. Daniel R. Heimbach, a Southern Baptist professor of ethics at Southwestern Baptist Theological Seminary, called the evangelical Declaration a "diatribe" that was "confused and dangerous," mainly because it failed to pinpoint exactly where coercive interrogation crossed into torture.
And Mark D. Tooley, a leader of the neoconservative Institute on Religion and Democracy, charged that the Declaration was the work of "pseudo-pacifist academics and antiwar activists" who were contributing to "a barely disguised crusade against the US war against terror."
But for the 17 drafters, the Declaration's foundation was "the sanctity of human life, a moral status irrevocably bestowed by the Creator upon each person."
The Declaration strongly commended the recent changes in the Army Field Manual specifying forbidden practices. But it criticized the Bush administration's successful effort, through the Military Commissions Act, to exempt the CIA from such prohibitions and from rigorous judicial and Congressional oversight, to limit habeas corpus, and to loosen rules on the use of evidence and to allow indefinite detention of those the Administration designates unlawful enemy combatants.
These provisions, the Declaration says, "violate basic principles of due process" and "create the conditions in which further prisoner abuse is made more likely."
Polling on torture and terrorism conducted by the Pew Research Center in 2004, 2005 and 2006 found that a small majority of the public held that torture of "suspected terrorists in order to gain important information" could "never" or "rarely" be justified.
The survey found that in every religious group, those who said they worshiped weekly appeared only slightly more restrictive toward torture than less observant believers. The poll data also showed that white evangelicals were somewhat more permissive toward torture than other religious groups.
But Gushee says growing endorsement of EHR's Declaration "may mark the beginning of the triumph of 'Christ' over 'culture' on this issue in politically and theologically conservative America. Torture (or euphemisms for torture) cannot stand up to the scrutiny of the Scriptures."
Whether NRCAT can translate its theological position into successful political action remains to be determined after the August Congressional recess. If Capital Hill know-how was the key, the coalition might be home free. But influential politicians and powerful political forces promise a difficult uphill climb for NRCAT and its allies.
The obstacles include: Democrats do not have the super-majorities required to pass the Dodd bill and similar legislation in either the House or the Senate. The fall agendas in both House and Senate are already larger than the available time. Influential conservative Republican legislators such as Lindsay Graham of South Carolina, a former military lawyer and judge, have vowed to block any attempt to amend the Military Commissions Act. Democrats, looking toward the 2008 election, are unlikely to want to risk a Bush veto and charges that they are "soft on terrorism" and other national security concerns.
Given those conditions, many are doubtful that the 110th Congress will
make any meaningful progress on issues related to prisoner detention and interrogation.
The Bush Administration's policies for treatment of prisoners in the
so-called "global war on terror" are being challenged by a consistently under-reported segment of America's "faith communities" - long dominated by right-wing televangelists such as James Dobson, Jerry Falwell and Pat Robertson.
A coalition of more than 125 Christian, Jewish, Muslim, Sikh and other religious organizations - collectively known as NRCAT, the National Religious Campaign Against Torture - is conducting an increasingly robust and sophisticated lobbying and grassroots action campaign to override an executive order by President Bush that permits the Central Intelligence Agency to use undefined "alternative interrogation techniques" in questioning alleged terror suspects.
According to NRCAT's organizer, Rev. George Hunsinger, a professor at the Princeton Theological Seminary, "More than 20,000 people of faith have endorsed NRCAT's Statement of Conscience", entitled, "Torture is a Moral Issue."
Heading the coalition is Linda Gustitus, former Chief of Staff to Senator Carl Levin (D-Michigan). Gustitus, a Washington attorney with 24 years of Capitol Hill experience, is a Unitarian and is also co-chair of the Washington Region Religious Campaign Against Torture (WRRCAT).
Coalition members include such prominent religious groups as Adventist Peace Fellowship, the American Baptist Churches USA, the Evangelical Lutheran Church in America, the Fellowship of Reconciliation, the General Board of Global Ministries of the United Methodist Church, the Islamic Society of North America, the Jewish Council for Public Affairs, the National Council of Churches, the Presbyterian Church (USA), the Union for Reform Judaism, and the World Sikh Council - American Region.
The focus of the Coalition's campaign is passage of legislation known as the "Restoring the Constitution Act of 2007," introduced in mid-February of this year by Sen. Chris Dodd (D-Ct.). It would repeal portions of the Military Commissions Act of 2006 (MCA). Similar legislation was introduced in the House of Representatives by Rep. Jerrold Nadler (D-NY) in March.
Ms. Gustitus called the Bush Executive Order "another shameful step in the US treatment of detainees in the 'war on terror'." She said, "As people of faith -- who value our common humanity and our religious responsibility to treat all people with decency and the due process protections of civilized law -- we urge the President immediately to stop the use of interrogation techniques that are cruel and inhuman, to disclose what the "alternative interrogation techniques" are, to close all secret prisons, to stop rendition to countries that torture and to give the International Red Cross access to detainees held in U.S. custody. We call on Congress to prohibit the use of any CIA funds for programs or activities that fail to treat all persons detained with decency and the protections of due process."
The Military Commissions Act, passed by Congress in late 2006, defined and established enemy combatant status, laid out procedures for Military Commissions trying those charged by the US with criminal violations in association with the administration's "global war on terror," authorized the president to define what acts constitute torture, and eliminated the protection of habeas corpus for non-citizen detainees.
The NRCAT coalition is also supporting pending legislation that would restore habeas corpus authority to the federal courts to hear habeas petitions from US-held detainees, and a bill that would stop the practice of 'extraordinary rendition' in which detainees are secretly sent to countries that have a known history of prisoner torture and other human rights abuses.
While Congress departed for its August recess without acting on the Dodd and similar legislation, Rev. Hunsinger told Truthout that NRCAT "will push for action in the fall." However, he predicted that "it is most likely the Dodd bill will be addressed piecemeal, in specific items, as opposed to the whole bill."
The reason, according to Hunsinger, is that "the coalition's strategy of trying to attach the habeas restoration legislation to the Defense Department authorization bill did not work" because Senate Republicans "threatened to filibuster."
The DOD authorization bill is scheduled to come up again in September.
The Dodd legislation reasserts US adherence to the Geneva Conventions, assuring humane treatment for all prisoners, military and civilian; prohibits evidence obtained through torture to be used in court; returns the US to outlawing hearsay testimony and testimony obtained through coercion; holds accountable those who have authorized or committed acts of torture; removes the power of the President to decide who is an "enemy combatant"; and restores detainees' right of habeas corpus to challenge the reason for their imprisonment.
The Bush executive order, issued last month following a series of court defeats of Administration detention policies, prohibits the use of torture but allows the CIA to continue to use undefined and undisclosed "alternative interrogation techniques."
NRCAT chair Gustitus says this caveat "calls into question whether the prohibition is real." In addition, she says, the executive order "does not close secret prisons nor prohibit sending detainees to countries which have been known to use torture in interrogation (rendition to torture), nor assure that every detainee has access to the International Red Cross."
Among NRCAT's more remarkable members are a number of heavy-hitters who are members of the Christian evangelical community, which has often remained silent on issues such as detainee torture and rendition while focusing on its more customary hot-button "values" issues like abortion and gay marriage.
One of NRCAT's more prominent evangelicals is Dr. David P. Gushee, Professor of Moral Philosophy at Union University, a leading Baptist institution located in Jackson, Tennessee. Gushee is also co-chair of Evangelicals for Human Rights (EHR).
Gushee was among a group of 17 prominent evangelical leaders and scholars who issued "An Evangelical Declaration Against Torture: Protecting Human Rights in an Age of Terror" last month.
Writing "as Christians and US citizens," the Declaration's authors declared:
"We renounce the resort to torture and cruel, inhuman and degrading treatment of detainees, call for the extension of procedural protections and human rights to all detainees, seek clear government-wide embrace of the Geneva Conventions, including those articles banning torture and cruel treatment of prisoners, and urge the reversal of any US government law, policy or practice that violates the moral standards outlined in this Declaration."
The Declaration was endorsed by board of the National Association of Evangelicals, a body claiming to represent 45,000 evangelical Protestant churches with 30 million members.
But it also drew sharp criticism from religious conservatives. Daniel R. Heimbach, a Southern Baptist professor of ethics at Southwestern Baptist Theological Seminary, called the evangelical Declaration a "diatribe" that was "confused and dangerous," mainly because it failed to pinpoint exactly where coercive interrogation crossed into torture.
And Mark D. Tooley, a leader of the neoconservative Institute on Religion and Democracy, charged that the Declaration was the work of "pseudo-pacifist academics and antiwar activists" who were contributing to "a barely disguised crusade against the US war against terror."
But for the 17 drafters, the Declaration's foundation was "the sanctity of human life, a moral status irrevocably bestowed by the Creator upon each person."
The Declaration strongly commended the recent changes in the Army Field Manual specifying forbidden practices. But it criticized the Bush administration's successful effort, through the Military Commissions Act, to exempt the CIA from such prohibitions and from rigorous judicial and Congressional oversight, to limit habeas corpus, and to loosen rules on the use of evidence and to allow indefinite detention of those the Administration designates unlawful enemy combatants.
These provisions, the Declaration says, "violate basic principles of due process" and "create the conditions in which further prisoner abuse is made more likely."
Polling on torture and terrorism conducted by the Pew Research Center in 2004, 2005 and 2006 found that a small majority of the public held that torture of "suspected terrorists in order to gain important information" could "never" or "rarely" be justified.
The survey found that in every religious group, those who said they worshiped weekly appeared only slightly more restrictive toward torture than less observant believers. The poll data also showed that white evangelicals were somewhat more permissive toward torture than other religious groups.
But Gushee says growing endorsement of EHR's Declaration "may mark the beginning of the triumph of 'Christ' over 'culture' on this issue in politically and theologically conservative America. Torture (or euphemisms for torture) cannot stand up to the scrutiny of the Scriptures."
Whether NRCAT can translate its theological position into successful political action remains to be determined after the August Congressional recess. If Capital Hill know-how was the key, the coalition might be home free. But influential politicians and powerful political forces promise a difficult uphill climb for NRCAT and its allies.
The obstacles include: Democrats do not have the super-majorities required to pass the Dodd bill and similar legislation in either the House or the Senate. The fall agendas in both House and Senate are already larger than the available time. Influential conservative Republican legislators such as Lindsay Graham of South Carolina, a former military lawyer and judge, have vowed to block any attempt to amend the Military Commissions Act. Democrats, looking toward the 2008 election, are unlikely to want to risk a Bush veto and charges that they are "soft on terrorism" and other national security concerns.
Given those conditions, many are doubtful that the 110th Congress will
make any meaningful progress on issues related to prisoner detention and interrogation.
Monday, August 06, 2007
Partisan Loyalties Hamper Reform of Immigration Asylum System
By William Fisher
More fuel may soon get thrown on the current fire over the credibility and competence of Attorney General Alberto Gonzales.
The reason is the recent disclosures that many DOJ-appointed judges charged with deciding whether to grant immigrants' requests for asylum in the United States, or deport them to countries where they could face harsh and inhumane persecution, are frequently chosen on the basis of party political affiliation, have little or no experience in immigration law, and lack nationally-uniform rules for decision-making.
Some of the results of what some critics are calling "cowboy justice" are jaw-dropping disparities in outcomes. For example, one judge is 1820% more likely to grant an asylum than another judge in the same courthouse, one US Court of Appeals is 1148% more likely to rule in favor of an asylum-seeker than another US Court of Appeals, and the fate of asylum-seekers is often decided not by the facts of the case but rather by a clerk's random assignment of an applicant to one asylum officer rather than another, or one immigration judge rather than another.
Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of US Courts of Appeals render about 77,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country.
The nation's 215 Immigration Judges are required to cope with filings of over 300,000 cases a year. With only 215 Judges, a single Judge has to dispose of 1,400 cases a year or nearly twenty-seven cases a week, or more than five each business day, simply to stay abreast of his docket.
A recent study published in the Stanford University Law Review concludes that "in the world of asylum adjudication, there is remarkable variation in decision-making from one official to the next, from one office to the next, from one region to the next, from one judicial circuit to the next, and from one year to the next, even during periods when there has been no intervening change in the law."
The study adds, "When an asylum seeker stands before an official or court who will decide whether she will be deported or can remain in the United States, the result may be determined as much or more by who that official is, or where the court is located, as it is by the facts and law of the case. The arguably arbitrary factors of place and time are particularly discomfiting in asylum cases, because the result of an erroneous decision that is unfavorable to the bona fide applicant is an order of deportation to a nation where she is in grave danger."
The study is entitled "Refugee Roulette:Disparities in Asylum Adjudication." Its authors are Jaya Ramji-Nogales of Temple Univeristy Law School, and Andrew I. Schoenholtz and Philip G. Scgrag, both of Georgetown Univeristy Law Center.
The study's authors found troubling trends at each stage of the asylum-seeking process. For example, when a negative decision of an immigration judge or the Board of Immigration Appeals (BIA) is taken to its last practical stop -- a Federal Court of Appeals -- factors unrelated to the merits of cases "significantly affect an appellant's chance of obtaining a remand."
These factors, the study found, include, at the Board of Immigration Appeals, a Republican Attorney General's 2002 decision to purge the Board of many members selected by his Democratic predecessor, and to require cursory opinions, at best, rather than careful analyses of appellants' contentions. At the Court of Appeals level, the most obvious extraneous factor affecting the outcomes of cases is the region of the country in which the asylum applicant happened to settle before filing his or her application."
The researchers found that "officers who adjudicate asylum applications in some of the eight regional offices of the Department of Homeland Security's Asylum Office appear to have grant rates that reflect personal outlooks rather than an office consensus. Over the course of a seven-year period, more than 20% of the asylum officers in three of these regional offices had grant rates for applicants from asylee-producing countries that deviated from the regional norm by more than 50%. In only three offices did fewer than 10% of the asylum officers have grant rates that deviated from the regional norm by more than 50%. In one office, there was so little consensus that most of the officers deviated from the office norm by more than 50%."
A large majority of asylum-seekers is not represented by lawyers. Unrepresented asylum applicants in immigration court win at a rate of 16% while represented applicants win at a rate of 46%. Many applicants have difficulty understanding English, and translators are either non-existent or of poor quality. If a case reaches a US Court of Appeals, the judge on that court is forced to make a decision on the basis of ordinarily cursory and incomplete notes rather than verbatim transcripts of lower court proceedings. The DOJ does not require transcripts and does not provide resources for their preparation.
The study also found that female asylum-seekers are more likely to win their appeal than males.
The study confirms many of the findings of an analysis carried out by The Washington Post, which found that politicization of the asylum-seeking process is as rampant among DOJ-appointed immigration officials as it has been shown to be among US Attorneys.
The Post found that "At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law...."
The newspaper added, "These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney."
The Post analysis -- the first systematic examination of appointees to immigration courts, the relationships that led to their selection, and the experience they brought to their position - offered a number of examples to support its conclusion that party partisanship is playing an increasing role in determining who is allowed to remain in the US.
For example, the Post says, "Two newly appointed immigration judges were failed candidates for the US Tax Court nominated by President Bush; one fudged his taxes and the other was deemed unqualified to be a tax judge by the nation's largest association of lawyers. Both were Republican loyalists. Justice officials also gave immigration judgeships to a New Jersey election law specialist who represented GOP candidates, a former treasurer of the Louisiana Republican Party, a White House domestic policy adviser and a conservative crusader against pornography."
The Post review was based on DOJ records and research into the backgrounds of the 37 current judges approved by Attorney General Gonzales or his predecessor, John D. Ashcroft, starting in 2004.
That year, The Post adds, "is when the Justice Department began to jettison the civil service process that traditionally guided the selections in favor of political considerations, according to sworn congressional testimony by one senior department official and a statement by the lawyer for another official."
Since the terrorist attacks of 9/11, the Bush administration has used the nation's immigration courts and its judges to deport hundreds of non-citizens who were detained as terrorism suspects but were never charged with crimes.
Since then, the DOJ has created stiffer guidelines and new rules that make it even more difficult for people the government doesn't want to remain in the country.
The DOJ's introduction of politics into judges' selection of judges was revealed in the Congressional testimonies of former Gonzales Chief of Staff Kyle Sampson and DOJ White House Liaison Monica Goodling. While these two witnesses did specify which immigration judges had been chosen because of their political orientations, The Post study reveals the Republican ties of many.
Sampson and Goodling testified that they were told the practice was legal. But Justice spokesman Dean Boyd said that immigration judges are considered civil service employees who may not be chosen based on political factors, unlike judges in federal criminal courts. Goodling admitted in her testimony that she "may have crossed the line."
Politics is not the only issue involved in hiring immigration judges. In 2005, the government's chief immigration lawyer in El Paso for 22 years filed a lawsuit claiming she was denied a judgeship twice in favor of less-qualified white men who were hired without an open application process.
Her suit alleged that, between 2001 and late 2005, only two Latinos were appointed nationwide as immigration judges. The immigration bench is overwhelmingly male and white, even though Spanish-speaking people from Latin America make up at least 70 percent of the caseload.
The US District Court for the District of Columbia ruled against the DOJ. It found that Ms. Gonzales "had identified a particular policy that has a discriminatory effect on a particular group."
The Court ruled that of the two other applicants for the position, one lacked Ms. Gonzales' experience and another failed to meet the minimum qualifications for the job.
In 2003, the Law Review study says, it was discovered that the "reforms" mandated by Attorney General Ashcroft -- firing five Clinton appointees and encouraging others to leave, requiring most decisions to be decided by summary affirmances or very short opinions, and replacing three-member panel decision-making with single-member affirmances for most asylum cases - "resulted in a sudden and drastic reduction in the rate at which the Board rendered decisions favorable to asylum applicants."
The study concludes with a wide-ranging series of recommendations. These include:
* Within each regional asylum office and within each immigration court, the adjudicators with particularly high and particularly low grant rates should confer with each other and try to ascertain the cause of this phenomenon...If the differences are based on ideologies or preconceptions of the adjudicators, these should be discussed with the regional or national director (in the case of an asylum office) or chief immigration judge (in the case of immigration court.)
* More training should be offered to promote greater consistency. Training for immigration judges should include units on judicial temperament. For example, immigration lawyers have sometimes complained that after an immigration judge is lied to several times by nationals of a particular country, the judge tends to suspect that all nationals of that country are liars. The training could include counseling on impartiality, avoiding stereotyping, and not taking personally the misconduct that the judges sometimes encounter from people who are desperate to remain in the United States.
* The government should implement more rigorous hiring standards. To be selected as an immigration judge, a candidate should have to demonstrate that he or she is sensitive to cultural differences and likely to treat all parties respectfully; capable of managing a large docket without becoming impatient; predisposed to be very careful in judging the credibility of people who claim to be victims of trauma or torture; and able to produce well-reasoned decisions that take into account all of the evidence and arguments presented by the parties.
* Congress and the Department of Justice should provide immigration courts with resources to enable the judges to work at the standards expected of bodies that adjudicate important cases. At present, the immigration courts are severely understaffed.
* Every immigration judge should be assigned at least one law clerk, and the quality of recording and interpretation should be improved. An increase in the number of judges is only a start on improving resources.
* The government should provide appointed counsel for any indigent asylum applicant who must defend himself in a removal proceeding in immigration court. People who are trying to prove that they are refugees within the meaning of federal law should not be required to compile supporting affidavits and make highly technical legal arguments without professional advocates, when the consequence of losing may be deportation to countries in which they face imprisonment, torture, and death.
* The Board of Immigration Appeals (BIA) should keep and publish statistics on the decisions of individual members, at least in asylum cases. If one member is granting asylum or remanding asylum cases at ten times the rate of another member, the Board itself, and the public, should at least be aware of this fact.
* The DOJ should amend the BIA's operating regulations to prohibit the Board from assigning asylum cases to a single member for decision. Given the apparently huge differences of opinion among adjudicators about who deserves asylum, more than one member should review each case, and the reviewers should discuss the reasons for any differences of opinion.
* Immigration Courts should have statutory independence from the DOJ, and Immigration Judges should be confirmed by the Senate as part of a new independent agency.
* Congress should amend the judicial review provision of the Immigration and Nationality Act to restore a more normal role for the federal courts in their review of asylum decisions. Currently, the federal courts defer excessively, especially in the southern circuits, to decisions of immigration courts and the Board of Immigration Appeals, even though those decisions appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or not the asylum applicant had representation or dependents in the United States.
More fuel may soon get thrown on the current fire over the credibility and competence of Attorney General Alberto Gonzales.
The reason is the recent disclosures that many DOJ-appointed judges charged with deciding whether to grant immigrants' requests for asylum in the United States, or deport them to countries where they could face harsh and inhumane persecution, are frequently chosen on the basis of party political affiliation, have little or no experience in immigration law, and lack nationally-uniform rules for decision-making.
Some of the results of what some critics are calling "cowboy justice" are jaw-dropping disparities in outcomes. For example, one judge is 1820% more likely to grant an asylum than another judge in the same courthouse, one US Court of Appeals is 1148% more likely to rule in favor of an asylum-seeker than another US Court of Appeals, and the fate of asylum-seekers is often decided not by the facts of the case but rather by a clerk's random assignment of an applicant to one asylum officer rather than another, or one immigration judge rather than another.
Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of US Courts of Appeals render about 77,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country.
The nation's 215 Immigration Judges are required to cope with filings of over 300,000 cases a year. With only 215 Judges, a single Judge has to dispose of 1,400 cases a year or nearly twenty-seven cases a week, or more than five each business day, simply to stay abreast of his docket.
A recent study published in the Stanford University Law Review concludes that "in the world of asylum adjudication, there is remarkable variation in decision-making from one official to the next, from one office to the next, from one region to the next, from one judicial circuit to the next, and from one year to the next, even during periods when there has been no intervening change in the law."
The study adds, "When an asylum seeker stands before an official or court who will decide whether she will be deported or can remain in the United States, the result may be determined as much or more by who that official is, or where the court is located, as it is by the facts and law of the case. The arguably arbitrary factors of place and time are particularly discomfiting in asylum cases, because the result of an erroneous decision that is unfavorable to the bona fide applicant is an order of deportation to a nation where she is in grave danger."
The study is entitled "Refugee Roulette:Disparities in Asylum Adjudication." Its authors are Jaya Ramji-Nogales of Temple Univeristy Law School, and Andrew I. Schoenholtz and Philip G. Scgrag, both of Georgetown Univeristy Law Center.
The study's authors found troubling trends at each stage of the asylum-seeking process. For example, when a negative decision of an immigration judge or the Board of Immigration Appeals (BIA) is taken to its last practical stop -- a Federal Court of Appeals -- factors unrelated to the merits of cases "significantly affect an appellant's chance of obtaining a remand."
These factors, the study found, include, at the Board of Immigration Appeals, a Republican Attorney General's 2002 decision to purge the Board of many members selected by his Democratic predecessor, and to require cursory opinions, at best, rather than careful analyses of appellants' contentions. At the Court of Appeals level, the most obvious extraneous factor affecting the outcomes of cases is the region of the country in which the asylum applicant happened to settle before filing his or her application."
The researchers found that "officers who adjudicate asylum applications in some of the eight regional offices of the Department of Homeland Security's Asylum Office appear to have grant rates that reflect personal outlooks rather than an office consensus. Over the course of a seven-year period, more than 20% of the asylum officers in three of these regional offices had grant rates for applicants from asylee-producing countries that deviated from the regional norm by more than 50%. In only three offices did fewer than 10% of the asylum officers have grant rates that deviated from the regional norm by more than 50%. In one office, there was so little consensus that most of the officers deviated from the office norm by more than 50%."
A large majority of asylum-seekers is not represented by lawyers. Unrepresented asylum applicants in immigration court win at a rate of 16% while represented applicants win at a rate of 46%. Many applicants have difficulty understanding English, and translators are either non-existent or of poor quality. If a case reaches a US Court of Appeals, the judge on that court is forced to make a decision on the basis of ordinarily cursory and incomplete notes rather than verbatim transcripts of lower court proceedings. The DOJ does not require transcripts and does not provide resources for their preparation.
The study also found that female asylum-seekers are more likely to win their appeal than males.
The study confirms many of the findings of an analysis carried out by The Washington Post, which found that politicization of the asylum-seeking process is as rampant among DOJ-appointed immigration officials as it has been shown to be among US Attorneys.
The Post found that "At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law...."
The newspaper added, "These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney."
The Post analysis -- the first systematic examination of appointees to immigration courts, the relationships that led to their selection, and the experience they brought to their position - offered a number of examples to support its conclusion that party partisanship is playing an increasing role in determining who is allowed to remain in the US.
For example, the Post says, "Two newly appointed immigration judges were failed candidates for the US Tax Court nominated by President Bush; one fudged his taxes and the other was deemed unqualified to be a tax judge by the nation's largest association of lawyers. Both were Republican loyalists. Justice officials also gave immigration judgeships to a New Jersey election law specialist who represented GOP candidates, a former treasurer of the Louisiana Republican Party, a White House domestic policy adviser and a conservative crusader against pornography."
The Post review was based on DOJ records and research into the backgrounds of the 37 current judges approved by Attorney General Gonzales or his predecessor, John D. Ashcroft, starting in 2004.
That year, The Post adds, "is when the Justice Department began to jettison the civil service process that traditionally guided the selections in favor of political considerations, according to sworn congressional testimony by one senior department official and a statement by the lawyer for another official."
Since the terrorist attacks of 9/11, the Bush administration has used the nation's immigration courts and its judges to deport hundreds of non-citizens who were detained as terrorism suspects but were never charged with crimes.
Since then, the DOJ has created stiffer guidelines and new rules that make it even more difficult for people the government doesn't want to remain in the country.
The DOJ's introduction of politics into judges' selection of judges was revealed in the Congressional testimonies of former Gonzales Chief of Staff Kyle Sampson and DOJ White House Liaison Monica Goodling. While these two witnesses did specify which immigration judges had been chosen because of their political orientations, The Post study reveals the Republican ties of many.
Sampson and Goodling testified that they were told the practice was legal. But Justice spokesman Dean Boyd said that immigration judges are considered civil service employees who may not be chosen based on political factors, unlike judges in federal criminal courts. Goodling admitted in her testimony that she "may have crossed the line."
Politics is not the only issue involved in hiring immigration judges. In 2005, the government's chief immigration lawyer in El Paso for 22 years filed a lawsuit claiming she was denied a judgeship twice in favor of less-qualified white men who were hired without an open application process.
Her suit alleged that, between 2001 and late 2005, only two Latinos were appointed nationwide as immigration judges. The immigration bench is overwhelmingly male and white, even though Spanish-speaking people from Latin America make up at least 70 percent of the caseload.
The US District Court for the District of Columbia ruled against the DOJ. It found that Ms. Gonzales "had identified a particular policy that has a discriminatory effect on a particular group."
The Court ruled that of the two other applicants for the position, one lacked Ms. Gonzales' experience and another failed to meet the minimum qualifications for the job.
In 2003, the Law Review study says, it was discovered that the "reforms" mandated by Attorney General Ashcroft -- firing five Clinton appointees and encouraging others to leave, requiring most decisions to be decided by summary affirmances or very short opinions, and replacing three-member panel decision-making with single-member affirmances for most asylum cases - "resulted in a sudden and drastic reduction in the rate at which the Board rendered decisions favorable to asylum applicants."
The study concludes with a wide-ranging series of recommendations. These include:
* Within each regional asylum office and within each immigration court, the adjudicators with particularly high and particularly low grant rates should confer with each other and try to ascertain the cause of this phenomenon...If the differences are based on ideologies or preconceptions of the adjudicators, these should be discussed with the regional or national director (in the case of an asylum office) or chief immigration judge (in the case of immigration court.)
* More training should be offered to promote greater consistency. Training for immigration judges should include units on judicial temperament. For example, immigration lawyers have sometimes complained that after an immigration judge is lied to several times by nationals of a particular country, the judge tends to suspect that all nationals of that country are liars. The training could include counseling on impartiality, avoiding stereotyping, and not taking personally the misconduct that the judges sometimes encounter from people who are desperate to remain in the United States.
* The government should implement more rigorous hiring standards. To be selected as an immigration judge, a candidate should have to demonstrate that he or she is sensitive to cultural differences and likely to treat all parties respectfully; capable of managing a large docket without becoming impatient; predisposed to be very careful in judging the credibility of people who claim to be victims of trauma or torture; and able to produce well-reasoned decisions that take into account all of the evidence and arguments presented by the parties.
* Congress and the Department of Justice should provide immigration courts with resources to enable the judges to work at the standards expected of bodies that adjudicate important cases. At present, the immigration courts are severely understaffed.
* Every immigration judge should be assigned at least one law clerk, and the quality of recording and interpretation should be improved. An increase in the number of judges is only a start on improving resources.
* The government should provide appointed counsel for any indigent asylum applicant who must defend himself in a removal proceeding in immigration court. People who are trying to prove that they are refugees within the meaning of federal law should not be required to compile supporting affidavits and make highly technical legal arguments without professional advocates, when the consequence of losing may be deportation to countries in which they face imprisonment, torture, and death.
* The Board of Immigration Appeals (BIA) should keep and publish statistics on the decisions of individual members, at least in asylum cases. If one member is granting asylum or remanding asylum cases at ten times the rate of another member, the Board itself, and the public, should at least be aware of this fact.
* The DOJ should amend the BIA's operating regulations to prohibit the Board from assigning asylum cases to a single member for decision. Given the apparently huge differences of opinion among adjudicators about who deserves asylum, more than one member should review each case, and the reviewers should discuss the reasons for any differences of opinion.
* Immigration Courts should have statutory independence from the DOJ, and Immigration Judges should be confirmed by the Senate as part of a new independent agency.
* Congress should amend the judicial review provision of the Immigration and Nationality Act to restore a more normal role for the federal courts in their review of asylum decisions. Currently, the federal courts defer excessively, especially in the southern circuits, to decisions of immigration courts and the Board of Immigration Appeals, even though those decisions appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or not the asylum applicant had representation or dependents in the United States.
Friday, July 27, 2007
GOVERNMENT SEGREGATES MUSLIM PRISONERS, RESTRICTS PHONE CALLS AND VISITS
By William Fisher
Legal authorities are charging that racial profiling is responsible for low-risk Muslim prisoners convicted for crimes the Justice Department intimates are terror-related being held in a segregated unit where their communications are more severely restricted than high-profile inmates such as al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.
The facility is known as the Communications Management Unit (CMU), and is located in the medium security Federal prison at Terre Haute, Indiana. Its occupants are almost entirely Muslims.
Under the CMU program, telephone communications must be conducted using monitored phone lines, be live-monitored by staff, are subject to recording, and must be in English only. All letters must be reviewed by staff prior to delivery or sending. Visits must be non-contact only, also live-monitored, and subject to recording in English. Telephone calls and mail are monitored, the number of phone calls limited and visits are restricted to a total of four hours per month, according to special rules enforced by the Justice Department's Bureau of Prisons.
Most Federal inmates are granted 300 minutes of telephone time per month. At the CMU, the policy is one 15 minute call per week, and this can be reduced in the Warden's discretion to three minutes once a month.
Federal inmates are also ordinarily granted all-day visiting every week or every other week. CMU grants only two hours at a time, twice a month, with no physical contact, with inmate and visitor situated on opposite sides of a plexiglass window.
While critics of the CMU acknowledge that prison officials have the right to monitor inmates’ communications with the outside world, they charge that there are important problems with the CMU, including a lack of public notice about its formation and a lack of clarity about how inmates are chosen to be sent there. They also complain that the unit's communication restrictions are unduly harsh for inmates not considered high security risks.
The unit currently houses 18 convicts, and will be able to accommodate more than five times that many. Moussaoui, Kaczynski, and Atlanta Olympics bomber Eric Rudolph are held at the Government’s “supermax” prison in Florence, Colorado.
Washington lawyer Carmen Hernandez, who represents one of two non-Muslim prisoners and is president-elect of the National Association of Criminal Defense Lawyers, told Truthout that the Justice Department (DOJ) claims it does not consider sending inmates to the unit as a punitive measure. They contend that, as a result, they do not have to provide hearings and other procedures that are required when punishments are to be administered. They claim it's not a punitive measure, but when you start restricting access, it certainly would appear to be punitive. If you're going to restrict people's liberties beyond what they already are, it ought to be for a good, particularized reason, and there does not appear to be one here Hernandez said. "
Hernandez adds, “The primary problem with the opening of (the CMU) is that no one knows the criteria used to send the person imprisoned to that Unit. There was no notice of the move and no opportunity to challenge the basis of the move. Due process ordinarily requires notice and an opportunity to be heard. I do not believe that anyone who was transferred to the CMU received notice of the transfer nor the basis for the transfer.”
Howard Kieffer, a Santa Ana, California, defense lawyer who is head of Federal Defense Associates and an expert on Federal prison rules, has told lawyer/journalist Jennifer Van Bergen that the unit "screams racial profiling."
"It's highly suspect that basically all of the people in this program are of
Middle Eastern descent," Kieffer said.
Civil liberties groups tend to agree. A spokesman for the American Civil Liberties Union says, "If they really believed these people are serious terrorists, they
wouldn't be in this unit. They'd be in Colorado with the Unabomber and the rest of the people that the Bureau of Prisons thinks are serious threats."
Religious discrimination is prohibited by Prison Bureau regulations. The regulation states that Bureau "staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs."
According to prison records cited by The Washington Post, current residents at Terre Haute include five members of the so-called Lackawanna Six, a group of Yemeni natives from Upstate New York who attended an al-Qaeda training camp; Randall Royer, a defendant prosecuted as part of the "Virginia jihad" case in Alexandria, Virginia; Enaam M. Arnaout, an Islamic charity director who pleaded guilty to diverting money to Islamic military groups in Bosnia and Chechnya; and Dr. Rafil Dhafir, a Syracuse N.Y. oncologist who was convicted of breaking the US sanctions against Iraq and various white-collar crimes.
The Post reports that the only non-Muslim inmates are an unidentified Colombian militant and Zvonko Busic, 61, former leader of a Croatian extremist group that hijacked a jetliner and set off a bomb that killed a police officer in 1976, according to prison records and defense lawyers. Busic is a client of Attorney Carmen Fernandez.
Dr. Dhafir, 58, an Iraqi-born US citizen from Syracuse, N.Y., was sentenced to 22 years for defrauding charity donors and conspiring to violate US economic sanctions against Saddam Hussein's government. Prior to his trial, politicians including former N.Y. Governor George Pataki trumpeted Dhafir’s arrest as a major victory in the war on terror. But no mention of terror was ever made in the courtroom in which a jury found him guilty of white-collar crimes.
In a recent letter to supporters, Dhafir recounted his abrupt, heavily guarded
transfer to Terre Haute in December and described it as part of "a nationwide
operation to put Muslims/Arabs in one place so that we can be closely monitored
regarding our communications."
"We are all concerned about the close intrusion on our communications," Dhafir
wrote. "We knew all along that our calls, mail and visits were monitored, but
with the new system we will have absolutely no privacy including our visits.
This is causing a great deal of anxiety and resentment especially among those
whose families speak no English."
Dhafir has come to be something of a poster-boy for what his supporters consider over-zealous prosecutions by US Attorneys. One of the most outspoken of the government’s critics is Katherine Hughes of Syracuse, who sat through every day of Dhafir’s 17-week trial.
She reports: “A founding member of the mosque in Syracuse, New York, Dhafir is a leader among the local Muslim community. An Iraqi-born oncologist, he has been a U.S. citizen for almost 30 years. Before his arrest, he and his wife, Priscilla, were very active in Syracuse civic affairs, and Dhafir often spoke at events and on local TV and radio about health and cancer care. In the early 1990s, in direct response to the humanitarian catastrophe caused by the brutal embargo on Iraq, he founded Help the Needy. For 13 years it sent food and aid to civilians suffering under U.N. sanctions imposed on Iraq at the insistence of the U.S. and Britain. Dhafir devoted much of his life to prayer and charity, and government records showed that he donated half his income to charity every year. In his oncology practice he treated those without medical insurance for free, paying for their chemotherapy out of his own pocket.
“Confident in his innocence and the American system of justice, Dhafir refused to accept a plea bargain, and the government piled on charges. When his case finally came to trial 19 months after his arrest, he faced a 60-count indictment of white-collar crime.
“The government employed many tools to inhibit Dhafir’s ability to mount a defense. Despite the facts that Syracuse’s Muslim community put up $2.3 million in bond money and that Dhafir offered to wear an electronic tag, he never was granted bail; his assets were frozen, making it more difficult to hire defense counsel; and he was denied access to both his records and his counsel. The government’s unlimited resources, moreover, allowed it to present its case in minutiae—seven government agencies had investigated Dr. Dhafir for five years before the case came to trial. The limited resources of the defense counsel, on the other hand, enabled it to call but a single witness, who testified for a mere 15 minutes.
“Although state and national officials smeared Dhafir in the press and New York Gov. George Pataki described Dhafir’s case as ‘money laundering…to help terrorist organizations’, local prosecutors successfully petitioned Judge Norman Mordue, the presiding judge who had denied Dhafir bail on four occasions, to prevent the charge of terrorism from being part of the trial. This ruling made his defense a nightmare: throughout the trial the prosecution hinted at more serious charges, but the defense was prohibited from addressing these inflammatory innuendos.” Dhafir is currently attempting to raise funds to obtain his trial transcript to prepare an appeal of his conviction.
Attorney Van Bergen writes that the CMU program was “not implemented through the process required by federal law, which stipulates the public be notified of any new changes to prison programs and be given the opportunity to voice objections. Instead, the program appears to have been ordered and implemented by a senior official at the Department of Justice.”
She elaborates: “In April of last year, the US Federal Bureau of Prisons -- part of the Department of Justice -- proposed a set of strict new regulations and, as required, there was a period of public comment. Human rights and civil liberties groups voiced strong concerns about the constitutionality of the proposed program.
“The program originally proposed was said to be applicable only to terrorists and terrorist-related criminals. The American Civil Liberties Union (ACLU), however, along with a coalition of other civil liberties groups, objected to the language of the regulation as too broad, and potentially applicable to non-terrorists and even to those not convicted of a crime but merely being held as "witnesses, detainees, or otherwise.
“After pushback from civil rights groups, the program appeared to have been dropped by the Prisons Bureau, with coalition groups believing that they had made their case regarding Constitutional rights.” However, she adds, “A similar program, the CMU, was surreptitiously implemented in December 2006.”
According to attorney Howard Kieffer, only three government offices have the authority to issue such changes in federal prison operations, and they all fall within the senior management of the Justice Department: the office of Harley Lappin, the Director of Prisons Bureau, the Office of Legal Counsel, or directly from the office of the US Attorney General, Alberto Gonzales.
Kieffer says, “It is just like the detentions after 9/11," he adds. "It's profiling."
Kieffer believes that the program not only violates federal law but the Constitution as well, saying it abridges the prisoners' right to freedom of expression and association. These inmates are "not able to communicate like other inmates," he said.
Legal authorities are charging that racial profiling is responsible for low-risk Muslim prisoners convicted for crimes the Justice Department intimates are terror-related being held in a segregated unit where their communications are more severely restricted than high-profile inmates such as al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.
The facility is known as the Communications Management Unit (CMU), and is located in the medium security Federal prison at Terre Haute, Indiana. Its occupants are almost entirely Muslims.
Under the CMU program, telephone communications must be conducted using monitored phone lines, be live-monitored by staff, are subject to recording, and must be in English only. All letters must be reviewed by staff prior to delivery or sending. Visits must be non-contact only, also live-monitored, and subject to recording in English. Telephone calls and mail are monitored, the number of phone calls limited and visits are restricted to a total of four hours per month, according to special rules enforced by the Justice Department's Bureau of Prisons.
Most Federal inmates are granted 300 minutes of telephone time per month. At the CMU, the policy is one 15 minute call per week, and this can be reduced in the Warden's discretion to three minutes once a month.
Federal inmates are also ordinarily granted all-day visiting every week or every other week. CMU grants only two hours at a time, twice a month, with no physical contact, with inmate and visitor situated on opposite sides of a plexiglass window.
While critics of the CMU acknowledge that prison officials have the right to monitor inmates’ communications with the outside world, they charge that there are important problems with the CMU, including a lack of public notice about its formation and a lack of clarity about how inmates are chosen to be sent there. They also complain that the unit's communication restrictions are unduly harsh for inmates not considered high security risks.
The unit currently houses 18 convicts, and will be able to accommodate more than five times that many. Moussaoui, Kaczynski, and Atlanta Olympics bomber Eric Rudolph are held at the Government’s “supermax” prison in Florence, Colorado.
Washington lawyer Carmen Hernandez, who represents one of two non-Muslim prisoners and is president-elect of the National Association of Criminal Defense Lawyers, told Truthout that the Justice Department (DOJ) claims it does not consider sending inmates to the unit as a punitive measure. They contend that, as a result, they do not have to provide hearings and other procedures that are required when punishments are to be administered. They claim it's not a punitive measure, but when you start restricting access, it certainly would appear to be punitive. If you're going to restrict people's liberties beyond what they already are, it ought to be for a good, particularized reason, and there does not appear to be one here Hernandez said. "
Hernandez adds, “The primary problem with the opening of (the CMU) is that no one knows the criteria used to send the person imprisoned to that Unit. There was no notice of the move and no opportunity to challenge the basis of the move. Due process ordinarily requires notice and an opportunity to be heard. I do not believe that anyone who was transferred to the CMU received notice of the transfer nor the basis for the transfer.”
Howard Kieffer, a Santa Ana, California, defense lawyer who is head of Federal Defense Associates and an expert on Federal prison rules, has told lawyer/journalist Jennifer Van Bergen that the unit "screams racial profiling."
"It's highly suspect that basically all of the people in this program are of
Middle Eastern descent," Kieffer said.
Civil liberties groups tend to agree. A spokesman for the American Civil Liberties Union says, "If they really believed these people are serious terrorists, they
wouldn't be in this unit. They'd be in Colorado with the Unabomber and the rest of the people that the Bureau of Prisons thinks are serious threats."
Religious discrimination is prohibited by Prison Bureau regulations. The regulation states that Bureau "staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs."
According to prison records cited by The Washington Post, current residents at Terre Haute include five members of the so-called Lackawanna Six, a group of Yemeni natives from Upstate New York who attended an al-Qaeda training camp; Randall Royer, a defendant prosecuted as part of the "Virginia jihad" case in Alexandria, Virginia; Enaam M. Arnaout, an Islamic charity director who pleaded guilty to diverting money to Islamic military groups in Bosnia and Chechnya; and Dr. Rafil Dhafir, a Syracuse N.Y. oncologist who was convicted of breaking the US sanctions against Iraq and various white-collar crimes.
The Post reports that the only non-Muslim inmates are an unidentified Colombian militant and Zvonko Busic, 61, former leader of a Croatian extremist group that hijacked a jetliner and set off a bomb that killed a police officer in 1976, according to prison records and defense lawyers. Busic is a client of Attorney Carmen Fernandez.
Dr. Dhafir, 58, an Iraqi-born US citizen from Syracuse, N.Y., was sentenced to 22 years for defrauding charity donors and conspiring to violate US economic sanctions against Saddam Hussein's government. Prior to his trial, politicians including former N.Y. Governor George Pataki trumpeted Dhafir’s arrest as a major victory in the war on terror. But no mention of terror was ever made in the courtroom in which a jury found him guilty of white-collar crimes.
In a recent letter to supporters, Dhafir recounted his abrupt, heavily guarded
transfer to Terre Haute in December and described it as part of "a nationwide
operation to put Muslims/Arabs in one place so that we can be closely monitored
regarding our communications."
"We are all concerned about the close intrusion on our communications," Dhafir
wrote. "We knew all along that our calls, mail and visits were monitored, but
with the new system we will have absolutely no privacy including our visits.
This is causing a great deal of anxiety and resentment especially among those
whose families speak no English."
Dhafir has come to be something of a poster-boy for what his supporters consider over-zealous prosecutions by US Attorneys. One of the most outspoken of the government’s critics is Katherine Hughes of Syracuse, who sat through every day of Dhafir’s 17-week trial.
She reports: “A founding member of the mosque in Syracuse, New York, Dhafir is a leader among the local Muslim community. An Iraqi-born oncologist, he has been a U.S. citizen for almost 30 years. Before his arrest, he and his wife, Priscilla, were very active in Syracuse civic affairs, and Dhafir often spoke at events and on local TV and radio about health and cancer care. In the early 1990s, in direct response to the humanitarian catastrophe caused by the brutal embargo on Iraq, he founded Help the Needy. For 13 years it sent food and aid to civilians suffering under U.N. sanctions imposed on Iraq at the insistence of the U.S. and Britain. Dhafir devoted much of his life to prayer and charity, and government records showed that he donated half his income to charity every year. In his oncology practice he treated those without medical insurance for free, paying for their chemotherapy out of his own pocket.
“Confident in his innocence and the American system of justice, Dhafir refused to accept a plea bargain, and the government piled on charges. When his case finally came to trial 19 months after his arrest, he faced a 60-count indictment of white-collar crime.
“The government employed many tools to inhibit Dhafir’s ability to mount a defense. Despite the facts that Syracuse’s Muslim community put up $2.3 million in bond money and that Dhafir offered to wear an electronic tag, he never was granted bail; his assets were frozen, making it more difficult to hire defense counsel; and he was denied access to both his records and his counsel. The government’s unlimited resources, moreover, allowed it to present its case in minutiae—seven government agencies had investigated Dr. Dhafir for five years before the case came to trial. The limited resources of the defense counsel, on the other hand, enabled it to call but a single witness, who testified for a mere 15 minutes.
“Although state and national officials smeared Dhafir in the press and New York Gov. George Pataki described Dhafir’s case as ‘money laundering…to help terrorist organizations’, local prosecutors successfully petitioned Judge Norman Mordue, the presiding judge who had denied Dhafir bail on four occasions, to prevent the charge of terrorism from being part of the trial. This ruling made his defense a nightmare: throughout the trial the prosecution hinted at more serious charges, but the defense was prohibited from addressing these inflammatory innuendos.” Dhafir is currently attempting to raise funds to obtain his trial transcript to prepare an appeal of his conviction.
Attorney Van Bergen writes that the CMU program was “not implemented through the process required by federal law, which stipulates the public be notified of any new changes to prison programs and be given the opportunity to voice objections. Instead, the program appears to have been ordered and implemented by a senior official at the Department of Justice.”
She elaborates: “In April of last year, the US Federal Bureau of Prisons -- part of the Department of Justice -- proposed a set of strict new regulations and, as required, there was a period of public comment. Human rights and civil liberties groups voiced strong concerns about the constitutionality of the proposed program.
“The program originally proposed was said to be applicable only to terrorists and terrorist-related criminals. The American Civil Liberties Union (ACLU), however, along with a coalition of other civil liberties groups, objected to the language of the regulation as too broad, and potentially applicable to non-terrorists and even to those not convicted of a crime but merely being held as "witnesses, detainees, or otherwise.
“After pushback from civil rights groups, the program appeared to have been dropped by the Prisons Bureau, with coalition groups believing that they had made their case regarding Constitutional rights.” However, she adds, “A similar program, the CMU, was surreptitiously implemented in December 2006.”
According to attorney Howard Kieffer, only three government offices have the authority to issue such changes in federal prison operations, and they all fall within the senior management of the Justice Department: the office of Harley Lappin, the Director of Prisons Bureau, the Office of Legal Counsel, or directly from the office of the US Attorney General, Alberto Gonzales.
Kieffer says, “It is just like the detentions after 9/11," he adds. "It's profiling."
Kieffer believes that the program not only violates federal law but the Constitution as well, saying it abridges the prisoners' right to freedom of expression and association. These inmates are "not able to communicate like other inmates," he said.
EXECUTIVE PRIVELEGE CLAIMS SEEN AS PART OF GOVERNMENT SECRECY PATTERN
By William Fisher
Amid claims of Executive Privilege by President Bush in the firing of US Attorneys, a bipartisan coalition of civil liberties groups has published a new report charging that the Administration’s stonewalling is simply part of a six-year pattern of unprecedented government secrecy.
The report – “Government Secrecy: Decisions Without Democracy 2007” – was prepared by advocacy groups, OpenTheGovernment.org and People For the American Way Foundation. It documents how executive power has dramatically expanded while executive accountability has diminished.
The report charges that “Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.”
According to Patrice McDermott, director of OpenTheGovernment.org., "As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem. It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."
"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas.
He added: "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."
The report includes a preface written by former conservative Republican Congressman Bob Barr and former Clinton White House Chief of Staff John Podesta.
Barr and Podesta charge that “In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power,
sometimes with congressional approval, as with the Patriot Act, and sometimes
through legally dubious assertions, as with the National Security Agency’s
domestic surveillance program. At the same time, the administration has
routinely withheld information that should be made public, thereby insulating
itself from democratic accountability.”
Secrecy, they write, “has been advanced in a myriad of ways, including excessive classification, brazen assertions of ‘executive privilege’ and ‘state secrets’, new control markings to restrict ‘sensitive but unclassified’ information, and new limits on Freedom of Information Act requests.”
The report acknowledges that the government should keep certain kinds of
information secret. “Our laws recognize the need to protect national security
information, such as intelligence sources and military plans, for example, as
well as personally identifiable data, such as information provided on tax
returns,” Barr and Podesta write.
But they add that the secrecy claims asserted by the administration “go far beyond what is contemplated by the law — and far beyond what is healthy for democracy, which depends on an informed citizenry.”
“Citizens deprived of relevant information cannot participate in their government’s decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities…The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government openness,” they say.
The Internet and other new information technologies, the report explains, “make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example, citizens can now access the Congressional Record, track environmental pollution in their neighborhoods, and comment on regulatory proposals.”
But they conclude that, “Instead of building on this foundation…the executive branch is retrenching — in a host of cases, government information previously available through the Internet has been removed.”
A foreword to the new report charges that “Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the latest evidence of a systematic campaign to keep information about government activities out of the hands of the American public. Freedom of Information laws are grounded in the recognition that knowledge about the government’s actions is the necessary first step in oversight and accountability.”
It says that governments have “discovered that secrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime. When governments claim that a broad secrecy mandate is essential to protect national security, they mostly mean that it is essential to protect the political interests of the administration. The harm to national security through breaches of secrecy is always exaggerated.”
The new report was written by David Banisar. Banisar is Director of the Freedom of Information Project of Privacy International in London and a Visiting Research Fellow at the UK’s Leeds University law school. Previously he was a Research Fellow at the Kennedy School of Government at Harvard University and co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC.
The report comes at a time of intense debate about what many believe is the Bush Administration’s obsession with secrecy, placing the Constitutionally enshrined doctrine of separation of powers under extraordinary challenge. While Congress struggles to exercise its oversight responsibilities as one of the country’s three co-equal branches of government, another branch, the Executive, seeks to deny legislators the people and documents lawmakers require to meet those responsibilities.
The current controversy was generated by the firings of nine US Attorneys, but has moved into a number of other areas. One of these is the admission by the former White House Liaison at the DOJ, Monica Goodling, that she “crossed the line” in questioning applicants for career positions about their political beliefs.
Another is the alleged arm-twisting of then-Attorney General John Ashcroft, in his intensive care hospital room following surgery. Then-White House Counsel Alberto Gonzales and then Bush Chief of Staff Andrew Card reportedly went to the attorney general’s hospital room to persuade him to approve the extension of a secret intelligence program that Ashcroft’s deputy had declined to authorize.
Both houses of Congress have been investigating the reasons for the Bush Administration’s firing of the US Attorneys, alleged perjury by Attorney General Gonzales in testimony before the Senate Judiciary Committee, and the role of the White House in engineering the firings.
The White House has claimed executive privilege in refusing to allow former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten to respond to subpoenas from the Senate Judiciary Committee.
The House Judiciary Committee voted Wednesday to recommend contempt citations against Miers and Bolten.
The “battle of the branches” continued to escalate during the week. On Thursday,
four Democratic members of the Senate Judiciary Committee asked the Solicitor General of the US, Paul Clement, to appoint a special counsel to investigate possible perjury charges against Gonzales in connection with his testimony about the hospital visit to Ashcroft.
The chairman of the committee, Democratic Senator Patrick Leahy of Maine, did not join with his committee colleagues, instead choosing to offer Gonzales an opportunity to amend his testimony.
The action came after the White House vowed it would instruct the US Attorney in the District of Columbia not to seek a grand jury indictment.
The Solicitor General is part of the Department of Justice, but is meant to be independent of the Attorney General. However, because he is part of the Executive Branch, most observers believe he is unlikely to act on the Senators’ request.
In a further blow in what can only be described as a bad week for the Administration, FBI Director Robert Mueller testified to the House Judiciary Committee on Thursday that the intelligence program Gonzales and Card attempted to have approved by the ailing John Ashcroft was in fact the NSA’s Domestic Surveillance Program, also known as the warrantless wiretaps program.
In testimony before the Senate earlier in the week, Attorney General Gonzales claimed it was another program for which they sought Ashcroft’s approval.
Finally, Sen. Leahy issued subpoenas to White House political adviser Karl Rove and one of his deputies, demanding their testimony by Aug. 2 in the panel's long-running investigation into the firings of the US attorneys and the alleged politicization of the Justice Department.
Knowledgeable sources said it was unlikely the White House would allow Rove’s testimony, thus opening the possibility of additional contempt citations or involvement by the courts.
The issue of excessive secrecy in the Bush Administration also surfaced elsewhere during the past few weeks. Last week, in a report to the president that found serious shortcomings in the process, the government’s Information Security Oversight Office (ISOO) said there were 20.5 million decisions to classify government secrets last year.
More than one in ten documents the ISOO reviewed lacked a basis for classification, and called into question the propriety of the decisions to remove them from public disclosure, the ISOO report said.
The ISOO’s annual review highlighted what it termed "the high error rate," and said it could be addressed only by a process of continuous oversight.
The report came as the office of Vice President Dick Cheney continued to refuse to cooperate with the office of the National Archives. Executive branch agencies give the ISOO data on how much material they classify and declassify. Cheney's office provided the information in 2001 and 2002, but has provided no further information since then.
"The reviews of actual decision making are striking, given the vice president's refusal to report" to the ISOO, said Meredith Fuchs, general counsel at the National Security Archive, a private advocacy group concerned with public disclosure of government secrets.
The White House claimed that an executive order from the president was never intended to define the vice president's office as “an agency.”
In another development shrouded in the issue of government secrecy, a federal appeals court ruled that the government must make available whatever information it has on Guantánamo detainees who are challenging their detention. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from defense attorneys.
The ruling rejected an effort by the Justice Department to limit disclosures to detainees’ lawyers, but opened the way for new legal battles over the government’s reasons for holding the men indefinitely.
The court said it would be impossible to review the military tribunals “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the
denominator.”
At the same time, the Court also issued a new order that substantially curtails the ability of attorneys to work with clients at Guantánamo. Civil rights groups charged that this ruling compromises attorney-client privilege.
“If we don’t have access to key information, how can we trust the government process?” asked attorney Wells Dixon of the Center for Constitutional Rights (CCR), an advocacy group that represents many of the GITMO detainees.
Dixon said the decision “will make it even more difficult for us to represent our clients. We’re extremely disappointed that the Court of Appeals has given its imprimatur to the notion that attorney-client privilege can be abolished with the stroke of a pen.”
The Detainee Treatment Act of 2005 (DTA) allows detainees to challenge their designation as “enemy combatants.” But the CCR and other human rights and legal groups have long maintained that the DTA review process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law.
The CCR says the CSRT process that is reviewed by the DTA hearings is itself flawed because CSRTs allow the use of secret evidence, torture evidence, and hearsay. They also exclude lawyers from the process, and deny detainees the right to see much of the evidence against them.
Detainees’ lawyers have argued that the military officials running the hearings
may have failed to collect information that might support the detainees’ cases.
The cases were filed shortly before the Supreme Court declined to hear two of the CCR’s habeas petitions. The Court took the position that detainees should first exhaust the review process set up by the DTA. But last month, in an unusual turnaround, the Court reversed itself and decided to hear the two cases during its next session, which begins in October 2007.
The Court’s surprising self-reversal potentially opened the door to scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants. As these cases proceed, their centerpiece is likely to be the confluence of government secrecy, national security, separation of powers, and the preservation of constitutional rights.
Whether related to national security or to a host of domestic issues, concern about excessive government secrecy is unlikely to go away any time soon. For some observers, the current controversy is reminiscent of the final months of the administration of President Richard M. Nixon, when the executive branch battled unsuccessfully to block judicial oversight.
In the wide range of current controversies, virtually all observers doubt that the Executive and Legislative branches of government will ever be able to resolve their differences and that executive privilege and other secrecy-related issues will once again have to be decided by the third branch of government, the Courts.
Amid claims of Executive Privilege by President Bush in the firing of US Attorneys, a bipartisan coalition of civil liberties groups has published a new report charging that the Administration’s stonewalling is simply part of a six-year pattern of unprecedented government secrecy.
The report – “Government Secrecy: Decisions Without Democracy 2007” – was prepared by advocacy groups, OpenTheGovernment.org and People For the American Way Foundation. It documents how executive power has dramatically expanded while executive accountability has diminished.
The report charges that “Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.”
According to Patrice McDermott, director of OpenTheGovernment.org., "As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem. It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."
"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas.
He added: "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."
The report includes a preface written by former conservative Republican Congressman Bob Barr and former Clinton White House Chief of Staff John Podesta.
Barr and Podesta charge that “In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power,
sometimes with congressional approval, as with the Patriot Act, and sometimes
through legally dubious assertions, as with the National Security Agency’s
domestic surveillance program. At the same time, the administration has
routinely withheld information that should be made public, thereby insulating
itself from democratic accountability.”
Secrecy, they write, “has been advanced in a myriad of ways, including excessive classification, brazen assertions of ‘executive privilege’ and ‘state secrets’, new control markings to restrict ‘sensitive but unclassified’ information, and new limits on Freedom of Information Act requests.”
The report acknowledges that the government should keep certain kinds of
information secret. “Our laws recognize the need to protect national security
information, such as intelligence sources and military plans, for example, as
well as personally identifiable data, such as information provided on tax
returns,” Barr and Podesta write.
But they add that the secrecy claims asserted by the administration “go far beyond what is contemplated by the law — and far beyond what is healthy for democracy, which depends on an informed citizenry.”
“Citizens deprived of relevant information cannot participate in their government’s decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities…The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government openness,” they say.
The Internet and other new information technologies, the report explains, “make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example, citizens can now access the Congressional Record, track environmental pollution in their neighborhoods, and comment on regulatory proposals.”
But they conclude that, “Instead of building on this foundation…the executive branch is retrenching — in a host of cases, government information previously available through the Internet has been removed.”
A foreword to the new report charges that “Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the latest evidence of a systematic campaign to keep information about government activities out of the hands of the American public. Freedom of Information laws are grounded in the recognition that knowledge about the government’s actions is the necessary first step in oversight and accountability.”
It says that governments have “discovered that secrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime. When governments claim that a broad secrecy mandate is essential to protect national security, they mostly mean that it is essential to protect the political interests of the administration. The harm to national security through breaches of secrecy is always exaggerated.”
The new report was written by David Banisar. Banisar is Director of the Freedom of Information Project of Privacy International in London and a Visiting Research Fellow at the UK’s Leeds University law school. Previously he was a Research Fellow at the Kennedy School of Government at Harvard University and co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC.
The report comes at a time of intense debate about what many believe is the Bush Administration’s obsession with secrecy, placing the Constitutionally enshrined doctrine of separation of powers under extraordinary challenge. While Congress struggles to exercise its oversight responsibilities as one of the country’s three co-equal branches of government, another branch, the Executive, seeks to deny legislators the people and documents lawmakers require to meet those responsibilities.
The current controversy was generated by the firings of nine US Attorneys, but has moved into a number of other areas. One of these is the admission by the former White House Liaison at the DOJ, Monica Goodling, that she “crossed the line” in questioning applicants for career positions about their political beliefs.
Another is the alleged arm-twisting of then-Attorney General John Ashcroft, in his intensive care hospital room following surgery. Then-White House Counsel Alberto Gonzales and then Bush Chief of Staff Andrew Card reportedly went to the attorney general’s hospital room to persuade him to approve the extension of a secret intelligence program that Ashcroft’s deputy had declined to authorize.
Both houses of Congress have been investigating the reasons for the Bush Administration’s firing of the US Attorneys, alleged perjury by Attorney General Gonzales in testimony before the Senate Judiciary Committee, and the role of the White House in engineering the firings.
The White House has claimed executive privilege in refusing to allow former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten to respond to subpoenas from the Senate Judiciary Committee.
The House Judiciary Committee voted Wednesday to recommend contempt citations against Miers and Bolten.
The “battle of the branches” continued to escalate during the week. On Thursday,
four Democratic members of the Senate Judiciary Committee asked the Solicitor General of the US, Paul Clement, to appoint a special counsel to investigate possible perjury charges against Gonzales in connection with his testimony about the hospital visit to Ashcroft.
The chairman of the committee, Democratic Senator Patrick Leahy of Maine, did not join with his committee colleagues, instead choosing to offer Gonzales an opportunity to amend his testimony.
The action came after the White House vowed it would instruct the US Attorney in the District of Columbia not to seek a grand jury indictment.
The Solicitor General is part of the Department of Justice, but is meant to be independent of the Attorney General. However, because he is part of the Executive Branch, most observers believe he is unlikely to act on the Senators’ request.
In a further blow in what can only be described as a bad week for the Administration, FBI Director Robert Mueller testified to the House Judiciary Committee on Thursday that the intelligence program Gonzales and Card attempted to have approved by the ailing John Ashcroft was in fact the NSA’s Domestic Surveillance Program, also known as the warrantless wiretaps program.
In testimony before the Senate earlier in the week, Attorney General Gonzales claimed it was another program for which they sought Ashcroft’s approval.
Finally, Sen. Leahy issued subpoenas to White House political adviser Karl Rove and one of his deputies, demanding their testimony by Aug. 2 in the panel's long-running investigation into the firings of the US attorneys and the alleged politicization of the Justice Department.
Knowledgeable sources said it was unlikely the White House would allow Rove’s testimony, thus opening the possibility of additional contempt citations or involvement by the courts.
The issue of excessive secrecy in the Bush Administration also surfaced elsewhere during the past few weeks. Last week, in a report to the president that found serious shortcomings in the process, the government’s Information Security Oversight Office (ISOO) said there were 20.5 million decisions to classify government secrets last year.
More than one in ten documents the ISOO reviewed lacked a basis for classification, and called into question the propriety of the decisions to remove them from public disclosure, the ISOO report said.
The ISOO’s annual review highlighted what it termed "the high error rate," and said it could be addressed only by a process of continuous oversight.
The report came as the office of Vice President Dick Cheney continued to refuse to cooperate with the office of the National Archives. Executive branch agencies give the ISOO data on how much material they classify and declassify. Cheney's office provided the information in 2001 and 2002, but has provided no further information since then.
"The reviews of actual decision making are striking, given the vice president's refusal to report" to the ISOO, said Meredith Fuchs, general counsel at the National Security Archive, a private advocacy group concerned with public disclosure of government secrets.
The White House claimed that an executive order from the president was never intended to define the vice president's office as “an agency.”
In another development shrouded in the issue of government secrecy, a federal appeals court ruled that the government must make available whatever information it has on Guantánamo detainees who are challenging their detention. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from defense attorneys.
The ruling rejected an effort by the Justice Department to limit disclosures to detainees’ lawyers, but opened the way for new legal battles over the government’s reasons for holding the men indefinitely.
The court said it would be impossible to review the military tribunals “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the
denominator.”
At the same time, the Court also issued a new order that substantially curtails the ability of attorneys to work with clients at Guantánamo. Civil rights groups charged that this ruling compromises attorney-client privilege.
“If we don’t have access to key information, how can we trust the government process?” asked attorney Wells Dixon of the Center for Constitutional Rights (CCR), an advocacy group that represents many of the GITMO detainees.
Dixon said the decision “will make it even more difficult for us to represent our clients. We’re extremely disappointed that the Court of Appeals has given its imprimatur to the notion that attorney-client privilege can be abolished with the stroke of a pen.”
The Detainee Treatment Act of 2005 (DTA) allows detainees to challenge their designation as “enemy combatants.” But the CCR and other human rights and legal groups have long maintained that the DTA review process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law.
The CCR says the CSRT process that is reviewed by the DTA hearings is itself flawed because CSRTs allow the use of secret evidence, torture evidence, and hearsay. They also exclude lawyers from the process, and deny detainees the right to see much of the evidence against them.
Detainees’ lawyers have argued that the military officials running the hearings
may have failed to collect information that might support the detainees’ cases.
The cases were filed shortly before the Supreme Court declined to hear two of the CCR’s habeas petitions. The Court took the position that detainees should first exhaust the review process set up by the DTA. But last month, in an unusual turnaround, the Court reversed itself and decided to hear the two cases during its next session, which begins in October 2007.
The Court’s surprising self-reversal potentially opened the door to scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants. As these cases proceed, their centerpiece is likely to be the confluence of government secrecy, national security, separation of powers, and the preservation of constitutional rights.
Whether related to national security or to a host of domestic issues, concern about excessive government secrecy is unlikely to go away any time soon. For some observers, the current controversy is reminiscent of the final months of the administration of President Richard M. Nixon, when the executive branch battled unsuccessfully to block judicial oversight.
In the wide range of current controversies, virtually all observers doubt that the Executive and Legislative branches of government will ever be able to resolve their differences and that executive privilege and other secrecy-related issues will once again have to be decided by the third branch of government, the Courts.
Tuesday, July 17, 2007
PATH TO CITIZENSHIP BLOCKED FOR LEGAL IMMIGRANTS
By William Fisher
Critics of the Bush Administration are charging that the recent collapse of immigration legislation in the current session of Congress was rooted in fear of “people not like me” – and that it is not only impacting undocumented immigrants but also legal US residents who have been waiting to up to seven years to take their citizenship oaths.
And one advocacy group, the Council on American-Islamic Relations (CAIR), is claiming that the delays are disproportionately disadvantaging Muslims.
The organization’s Maryland and Virginia chapter says there is a perception in the Muslim community that the citizenship delays are based on religion and national origin.
The group’s civil rights manager, Morris Days, points out that the Immigration and Naturalization Act requires that the Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) administer the oath of citizenship no later than 120 days after completion of the naturalization process. But he claims the USCIS “has delayed the oaths for many Muslims based on an unlegislated rule that requires rechecking applicant's files.”
CAIR is calling on the DHS to expedite the cases of local Muslims who have been waiting for up to seven years to take their citizenship oaths.
The group says the individuals experiencing the delays are legal residents who have fulfilled all requirements necessary to become American citizens. “In some cases, the delays are causing personal hardships for those separated from family members or who are in careers that require citizenship for advancement,” it adds.
Days says, "Every citizen and permanent resident has a right to expect fundamental fairness in a process that determines important societal benefits such as citizenship. The problem is that there has been no time frame for applicants to be given citizenship oaths, which results in their lives and futures being in limbo."
CAIR's 2006 annual report on the status of American Muslim civil rights that shows citizenship delays as the top concern.
CAIR, America's largest Islamic civil liberties group, has 33 offices and chapters nationwide and in Canada. According to its website, the organization’s mission is “to promote justice, enhance the understanding of Islam, and empower American Muslims.”
While the organization says it has worked closely with the DHS and other government agencies to identify radical Islamists but at the same time to combat “Islamophobia,” CAIR has not escaped controversy. It has been named an unindicted co-conspirator in the government’s prosecution of a Muslim-oriented charity, The Holy Land Foundation, for providing material support for terrorists. Holy Land’s leaders are currently on trial in Richardson, Texas, charged with collecting funds in the US that were illegally funneled to Palestinian militant groups such as Hamas. The government charges are that the Foundation raised funds for Hamas, which used the money freed up by their donations to conduct terrorism, with the knowledge of Foundation officials.
Hamas, which won a large majority of seats in the Palestinian parliament following elections in January 2006, is on the State Department’s list of terrorist organizations. The election gave Hamas the right to form the next cabinet under the Palestinian Authority's president, Mahmoud Abbas, the leader of the opposition political party, Fatah.
But the two Palestinian factions have been deeply divided since the election, and amid recent armed conflict in Gaza, Abbas dismissed the Hamas Prime Minister and his government, and appointed a new government.
The US shut down the Holy Land Foundation three months after 9/11, saying it sent millions of dollars to the Middle East to help “indoctrinate children to grow up into suicide bombers.” While a number of other charities dedicated to Muslim causes have also been shut down, the Holy Land case is the nation’s biggest terror-financing case yet: The government says that seven foundation organizers illegally sent at least $12 million overseas to Hamas.
CAIR has denied any involvement in support for Hamas or any other group labeled as a terrorist organization.
The Holy Land and related cases present Muslim-Americans with a particularly sensitive issue, since charitable giving is one of the basic tenets of Islam.
In a related development, in June the State Department issued a bulletin encouraging thousands of highly skilled workers to apply for green cards by July 2. The New York Times reported that the bulletin “prompted untold numbers of doctors, medical technicians and other professionals, many of whom have lived here with their families for years, to assemble little mountains of paper. They got certified records and sponsorship documents, paid for medical exams and lawyers and sent their applications in. Many canceled vacations to be in the United States when their applications arrived, as the law requires.”
But it was later revealed that the State Department had issued the bulletin only to prod CIS to expedite green card processing. Since 2000, 182,694 green cards
have gone un-issued because CIS did not process them in time. The annual supply of green cards is capped by law, and demand consistently outstrips supply.
CIS worked through a weekend to process tens of thousands of applications. But after that weekend, the State Department announced that all 140,000 employment-based green cards had been used and that no additional applications would be accepted.
CIS says the law forbids it to accept the applications, but the American Immigration Lawyers Association disagrees with this interpretation. It is preparing a class-action lawsuit to compel the bureaucracy to accept the application surge for which it was responsible.
On July 30, a new fee schedule for immigrants takes effect, substantially increasing the application cost.
Critics of the Bush Administration are charging that the recent collapse of immigration legislation in the current session of Congress was rooted in fear of “people not like me” – and that it is not only impacting undocumented immigrants but also legal US residents who have been waiting to up to seven years to take their citizenship oaths.
And one advocacy group, the Council on American-Islamic Relations (CAIR), is claiming that the delays are disproportionately disadvantaging Muslims.
The organization’s Maryland and Virginia chapter says there is a perception in the Muslim community that the citizenship delays are based on religion and national origin.
The group’s civil rights manager, Morris Days, points out that the Immigration and Naturalization Act requires that the Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) administer the oath of citizenship no later than 120 days after completion of the naturalization process. But he claims the USCIS “has delayed the oaths for many Muslims based on an unlegislated rule that requires rechecking applicant's files.”
CAIR is calling on the DHS to expedite the cases of local Muslims who have been waiting for up to seven years to take their citizenship oaths.
The group says the individuals experiencing the delays are legal residents who have fulfilled all requirements necessary to become American citizens. “In some cases, the delays are causing personal hardships for those separated from family members or who are in careers that require citizenship for advancement,” it adds.
Days says, "Every citizen and permanent resident has a right to expect fundamental fairness in a process that determines important societal benefits such as citizenship. The problem is that there has been no time frame for applicants to be given citizenship oaths, which results in their lives and futures being in limbo."
CAIR's 2006 annual report on the status of American Muslim civil rights that shows citizenship delays as the top concern.
CAIR, America's largest Islamic civil liberties group, has 33 offices and chapters nationwide and in Canada. According to its website, the organization’s mission is “to promote justice, enhance the understanding of Islam, and empower American Muslims.”
While the organization says it has worked closely with the DHS and other government agencies to identify radical Islamists but at the same time to combat “Islamophobia,” CAIR has not escaped controversy. It has been named an unindicted co-conspirator in the government’s prosecution of a Muslim-oriented charity, The Holy Land Foundation, for providing material support for terrorists. Holy Land’s leaders are currently on trial in Richardson, Texas, charged with collecting funds in the US that were illegally funneled to Palestinian militant groups such as Hamas. The government charges are that the Foundation raised funds for Hamas, which used the money freed up by their donations to conduct terrorism, with the knowledge of Foundation officials.
Hamas, which won a large majority of seats in the Palestinian parliament following elections in January 2006, is on the State Department’s list of terrorist organizations. The election gave Hamas the right to form the next cabinet under the Palestinian Authority's president, Mahmoud Abbas, the leader of the opposition political party, Fatah.
But the two Palestinian factions have been deeply divided since the election, and amid recent armed conflict in Gaza, Abbas dismissed the Hamas Prime Minister and his government, and appointed a new government.
The US shut down the Holy Land Foundation three months after 9/11, saying it sent millions of dollars to the Middle East to help “indoctrinate children to grow up into suicide bombers.” While a number of other charities dedicated to Muslim causes have also been shut down, the Holy Land case is the nation’s biggest terror-financing case yet: The government says that seven foundation organizers illegally sent at least $12 million overseas to Hamas.
CAIR has denied any involvement in support for Hamas or any other group labeled as a terrorist organization.
The Holy Land and related cases present Muslim-Americans with a particularly sensitive issue, since charitable giving is one of the basic tenets of Islam.
In a related development, in June the State Department issued a bulletin encouraging thousands of highly skilled workers to apply for green cards by July 2. The New York Times reported that the bulletin “prompted untold numbers of doctors, medical technicians and other professionals, many of whom have lived here with their families for years, to assemble little mountains of paper. They got certified records and sponsorship documents, paid for medical exams and lawyers and sent their applications in. Many canceled vacations to be in the United States when their applications arrived, as the law requires.”
But it was later revealed that the State Department had issued the bulletin only to prod CIS to expedite green card processing. Since 2000, 182,694 green cards
have gone un-issued because CIS did not process them in time. The annual supply of green cards is capped by law, and demand consistently outstrips supply.
CIS worked through a weekend to process tens of thousands of applications. But after that weekend, the State Department announced that all 140,000 employment-based green cards had been used and that no additional applications would be accepted.
CIS says the law forbids it to accept the applications, but the American Immigration Lawyers Association disagrees with this interpretation. It is preparing a class-action lawsuit to compel the bureaucracy to accept the application surge for which it was responsible.
On July 30, a new fee schedule for immigrants takes effect, substantially increasing the application cost.
Thursday, July 05, 2007
EXACTLY WHAT ARE CONSERVATIVE JUDGES CONSERVING?
By William Fisher
If you listen to their rhetoric, the mission of the Conservative movement is to get big government off the people’s backs and out of their lives, live by what the framers of the Constitution intended, and help the least of us to enjoy the same liberties as the most of us.
That’s what they say they expect from our lawmakers and from our courts. And they’ll tell you it’s the reason they get apoplectic about what they call “activist judges.”
If we needed any more proof of their hypocrisy after the disgrace of the Terry Schiavo affair, it would be easy to find in the decisions of the Supreme Court session just ended.
The Supreme Court is supposed to be the last resort for the least of us, the one door always open to ordinary citizens seeking justice.
So consider how the Court ruled this term:
It struck down the modest and voluntarily adopted plans of Seattle and Louisville to re-integrate their public schools. By a 5-4 vote, the Justices decided, as The New York Times put it, that the equal protection clause of the14th Amendment was really intended to protect white students from integration.
It ruled against an prison inmate who filed an appeal based on a deadline set by a federal judge because the judge gave him a wrong date.
It overturned a jury’s award of $79.5 million in punitive damages against cigarette manufacturer Philip Morris.
It ruled that it was OK for manufacturers to impose minimum prices on retailers.
It upheld the federal ban on so-called “partial-birth” abortions.
It ruled that taxpayers lacked the ‘standing’ to challenge the Bush administration’s faith-based initiatives.
And it rewarded the most powerful of us by striking down parts of the campaign finance law that limited the funding of so-called “issue ads” by wealthy contributors.
Most of these decisions will make life tougher, not easier, for the least of us. And some thumbed their noses at the stare decisis riff that Chief Justice John Roberts sang so sonorously during his confirmation hearings.
The Philip Morris decision overturned a ruling by the Oregon Supreme Court based on the manufacturer’s 40 years of lying about the connection between smoking and cancer. The campaign finance ruling was a gift to big money interests and the K Street mob. The retail price case, another gift to the rich and powerful, overturned a 96-year-old precedent. The missed deadline case overturned two previous decisions. The faith-based case sidestepped the Constitution’s separation of church and state mandate, but ignored the role of the Court itself as the last safe harbor for ordinary citizens who are hurt when government policies damage the society they live in. In the so-called abortion case, the Court overturned its own 2000 decision, which mandated protection for the health of the mother. And in the racial integration cases, the justices stood Brown v. Board on its head.
The ideology of the current court has been cemented by the addition of President Bush’s two nominees – Chief Justice Roberts and Justice Samuel Alito. During their confirmation hearings, these two men went to great pains to paint themselves as “incrementalists” who regarded stare decisis – previous decisions – as near-sacred. They testified ad nauseam to their “modest” approach to legal change.
Having used these platitudes to snooker enough members of the Senate Judiciary Committee to win their lifetime seats on the nation’s highest Court, they are now to free to join their two ideological brothers – Justices Antonin Scalia and Clarence Thomas – to form the solid four in five-to-four decisions. The fifth brother is Justice Anthony Kennedy, who was expected by some to stand in the “middle ground” so often occupied by now retired Justice Sandra Day O’Connor.
But the folly of that expectation should have been clear when Justice Kennedy, in his partial birth abortion opinion, paternalistically cautioned that upholding this surgical procedure might cause women to do things they might later regret. Someone needs to tell Justice Kennedy the 19th Century is over!
So what exactly are these so-called Conservatives conserving? The interests of the richest and most powerful among us? The idea that women need daddies to help them reach rational decisions? The integrity of the Constitution and the decisions of lower courts? The Constitutional glue of precedent?
There are indeed times when precedent impedes progress and obstructs justice. That was true when the Supreme Court of Chief Justice Warren Burger overturned a half-century of Plessy v. Ferguson “separate but equal” racial doctrine to rule that separate could never be equal.
Then, and at most times in our country’s history, overturning precedent has been in the service of increasing freedom for the least of us. This Court term has seen a 180-degree turn away from that proud tradition. It has resulted in less, not more, freedom.
Conserving the freedoms of the least of us seems to be what Conservatives have forgotten.
Today’s Supreme Court makes you wonder how Conservatives define “judicial activism.”
If you listen to their rhetoric, the mission of the Conservative movement is to get big government off the people’s backs and out of their lives, live by what the framers of the Constitution intended, and help the least of us to enjoy the same liberties as the most of us.
That’s what they say they expect from our lawmakers and from our courts. And they’ll tell you it’s the reason they get apoplectic about what they call “activist judges.”
If we needed any more proof of their hypocrisy after the disgrace of the Terry Schiavo affair, it would be easy to find in the decisions of the Supreme Court session just ended.
The Supreme Court is supposed to be the last resort for the least of us, the one door always open to ordinary citizens seeking justice.
So consider how the Court ruled this term:
It struck down the modest and voluntarily adopted plans of Seattle and Louisville to re-integrate their public schools. By a 5-4 vote, the Justices decided, as The New York Times put it, that the equal protection clause of the14th Amendment was really intended to protect white students from integration.
It ruled against an prison inmate who filed an appeal based on a deadline set by a federal judge because the judge gave him a wrong date.
It overturned a jury’s award of $79.5 million in punitive damages against cigarette manufacturer Philip Morris.
It ruled that it was OK for manufacturers to impose minimum prices on retailers.
It upheld the federal ban on so-called “partial-birth” abortions.
It ruled that taxpayers lacked the ‘standing’ to challenge the Bush administration’s faith-based initiatives.
And it rewarded the most powerful of us by striking down parts of the campaign finance law that limited the funding of so-called “issue ads” by wealthy contributors.
Most of these decisions will make life tougher, not easier, for the least of us. And some thumbed their noses at the stare decisis riff that Chief Justice John Roberts sang so sonorously during his confirmation hearings.
The Philip Morris decision overturned a ruling by the Oregon Supreme Court based on the manufacturer’s 40 years of lying about the connection between smoking and cancer. The campaign finance ruling was a gift to big money interests and the K Street mob. The retail price case, another gift to the rich and powerful, overturned a 96-year-old precedent. The missed deadline case overturned two previous decisions. The faith-based case sidestepped the Constitution’s separation of church and state mandate, but ignored the role of the Court itself as the last safe harbor for ordinary citizens who are hurt when government policies damage the society they live in. In the so-called abortion case, the Court overturned its own 2000 decision, which mandated protection for the health of the mother. And in the racial integration cases, the justices stood Brown v. Board on its head.
The ideology of the current court has been cemented by the addition of President Bush’s two nominees – Chief Justice Roberts and Justice Samuel Alito. During their confirmation hearings, these two men went to great pains to paint themselves as “incrementalists” who regarded stare decisis – previous decisions – as near-sacred. They testified ad nauseam to their “modest” approach to legal change.
Having used these platitudes to snooker enough members of the Senate Judiciary Committee to win their lifetime seats on the nation’s highest Court, they are now to free to join their two ideological brothers – Justices Antonin Scalia and Clarence Thomas – to form the solid four in five-to-four decisions. The fifth brother is Justice Anthony Kennedy, who was expected by some to stand in the “middle ground” so often occupied by now retired Justice Sandra Day O’Connor.
But the folly of that expectation should have been clear when Justice Kennedy, in his partial birth abortion opinion, paternalistically cautioned that upholding this surgical procedure might cause women to do things they might later regret. Someone needs to tell Justice Kennedy the 19th Century is over!
So what exactly are these so-called Conservatives conserving? The interests of the richest and most powerful among us? The idea that women need daddies to help them reach rational decisions? The integrity of the Constitution and the decisions of lower courts? The Constitutional glue of precedent?
There are indeed times when precedent impedes progress and obstructs justice. That was true when the Supreme Court of Chief Justice Warren Burger overturned a half-century of Plessy v. Ferguson “separate but equal” racial doctrine to rule that separate could never be equal.
Then, and at most times in our country’s history, overturning precedent has been in the service of increasing freedom for the least of us. This Court term has seen a 180-degree turn away from that proud tradition. It has resulted in less, not more, freedom.
Conserving the freedoms of the least of us seems to be what Conservatives have forgotten.
Today’s Supreme Court makes you wonder how Conservatives define “judicial activism.”
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