By William Fisher
Rush Limbaugh. Glenn Beck. Bill O’Reilly. Sean Hannity. Lou Dobbs: Five now-household names made rich and famous by those wonderful folks who brought us cable and talk radio.
All were gung-go for that grotesquely-misnamed government euphemism known as “enhanced interrogation techniques.” All were joined at Dubya’s hip as cheerleaders for “Democratizing” Iraq. All were megaphones for the CIA’s “black sites” and “extraordinary renditions.” And all were eager to tell us all about the superb cuisine and exquisite personal service accorded the guests at GITMO-by-the-Sea.
Until the lies and uselessness of these misadventures became so obvious that they lost their ratings value. Another headline-grabber had to be found!
And, Eureka, our five horsemen found their Holy Grail: A new cottage industry called:
Immigration.
Undocumented workers were every bit as evil as Al Qaeda. Terrorists were crossing our borders with “dirty bombs” concealed under their fruit-pickers’ farmhand garb and waiters’ uniforms. IEDs were being secreted among the tools they brought in to build our homes.
They pushed for 3,000-mile-long fences between us and Mexico. They attacked the Department of Homeland Security for failing to enforce our laws of entry. They proposed sending the National Guard to our Southern border. They opposed public education and health care for the undocumented, including their children – many of whom were American citizens, born in the U.S.A. They backed The Minutemen’s brand of vigilante justice. They cheered when the government raided workplaces and took fathers and mothers away from their families. They cried out for the arrest and “expedited removal” of some twelve million illegals, though they never quite got around to telling us how they were going to do that and what effect that might have on the U.S. economy.
They perpetuated the fear-mongering myths of the RNC and the Yahoos on the wingnut right.
Like this one:
Myth: Immigrants are driving up our health care costs and bankrupting our emergency rooms because they have no insurance.
Fact: Non-citizens are significantly less likely to use emergency room services than U.S. citizens. Insured immigrants have much lower medical expenses than insured U.S.-born citizens. Insured immigrants' per-person medical expenditures are 1/2 to 2/3 less than the U.S.-born with similar characteristics. Recent immigrants constitute 5% of the non-elderly adult population, but are responsible for 2% of adults' total health care costs, making their share disproportionately low. Four out of five people in America who have no insurance are U.S. citizens. U.S. citizens make up the majority of the uninsured (78%), while immigrants account for 22% of the non-elderly uninsured.
But predictably, in thousands of hours of bloviating on TV and radio, not a single one of these five horsemen has ever uttered the first word about what is arguably the most shameful aspect of the immigration issue. That word is:
Detention.
But then, why should we have expected to ever hear that word? Hell, if black sites were hunky-dory with these guys, why not for other Enemies of the State?
And what are those detention conditions they never mention?
ICE, the Immigration and Customs Enforcement agency – part of the sprawling and dysfunctional Department of Homeland Security -- owns and operates its own detention facilities, and also rents bed space from county and city prisons and jails. ICE locks up about 32,000 civil immigration detainees each day -- 400,000 a year.
Most of these are pursuing their immigration cases in the courts, if they can wangle access to a lawyer. This is a system that puts little children in prison scrubs, that regularly denies detainees basic needs, like contact with lawyers and loved ones, like soap and sanitary napkins. It is a system that incarcerates whole families. It is also a system that separates parents from children. It is a system where people who are not dangerous criminals – in case you don’t know, alleged immigration violations are civil, not criminal, offenses -- get injured, sick and die because of indifference or the lack of availability of timely medical care. It is a system that has produced more than 90 detainee deaths since 2003.
ICE’s city, county and private prisons and jails also house serious criminals. Yet immigration detainees -- including asylum seekers, legal immigrants, victims of human trafficking, and immigrants with no criminal records -- are mixed in with the general prison population. They are stashed away in penal-like facilities for months and sometimes years, with virtually no due process and often without the most basic safeguards -- like hearings to assess the need for continued detention.
Many illegal immigrants who will be deported cannot leave the U.S. due to the fact that their country of origin will not accept them, so they must stay in the immigration jails for years or even life until a country will agree to take them. Some immigrants cannot go back to their original country out of fear of persecution and death. So we keep them locked up.
At the T. Don Hutto detention center in Texas, 26 immigrant children between the ages of one and 17 were detained with their parents who, in almost all cases, were seeking asylum.
More than 60 detainees have recently been on hunger strikes to protest conditions at the immigration detention center in Basile, Louisiana. Authorities there retaliated by putting the hunger strikers in solitary confinement.
In California, detainees are held in a private facility in San Diego, a government-run center in El Centro and at 13 local jails throughout the state. There has been a ton of well-documented violations of normal standards for legal and family visits at both San Pedro and at a Lancaster facility run by the Los Angeles County Sheriff's Department.
Among the findings of one reliable study, there were that at least 41 facilities did not give detainees the minimum number of hours and days of recreation required by their own standards and that 19 centers did not offer any outdoor recreation time at all. The report also found deficiencies in access to phones and legal information. For example, at least 29 detention facilities had no law library, and 30 centers failed to provide reasonable privacy for legal calls. In addition, detainees were often placed in solitary confinement without justification.
We’re not talking about some bizarre fiction like “Death Panels.” You just can’t make this stuff up!
Think I’m kidding? Read on.
One 23-year-old was found not guilty of transporting explosives during a road trip with a friend who had packed model rocket propellants in the trunk of his car. But three days later, in a Wal-Mart parking lot in Tampa, he was arrested again by immigration authorities. The new charge was that he “is engaged in or is likely to engage in” terrorist activities, a violation of his legal residency in the U.S.
A 26-year-old Chinese woman told Amnesty researchers that she fled to the U.S. after she and her mother were beaten in China for handing out religious fliers. She arrived in America seeking asylum in 2008 and was detained at the airport, then transferred to a county jail. No one told her why she was being held. Without explanation, ICE ordered her to remain in detention unless she could pay a $50,000 bond, which neither neither her relatives in the U.S. nor her family in China was able to raise. After almost a year in detention, they were able to post the bond and win her release.
Wait. It gets worse.
One young man was deported and then caught when he tried to sneak back in over the Canadian border. He was convicted and spent five years in jail. As he was about to be released, a prison official looked at his file and discovered that he was a natural-born U.S. citizen!
How did this happen? Well, it’s been happening for many years. Since back when ICE was the INS – the Immigration and Naturalization Service. But, after 9/11, Bush officials ramped it all up, cobbling together a network of federal centers, state and county lockups and private, for-profit prisons. They needed lots of beds to warehouse the tens of thousands of people its raiders and local police were flushing out of the shadows. Thanks to reports on the secretive system, particularly those by Nina Bernstein in The New York Times, folks who were paying attention learned that detainees were being locked up and forgotten and denied access to lawyers and their families. They languished, sickened and died without medical attention.
And speaking of the New York Times, please note that it’s one of the few MSM newspapers that have published anything on this issue. Others include the Los Angeles Times, the Washington Post, and the New Orleans Times-Picayune.
What is the Obama Administration doing about this outrage? Is our President is still committed to his campaign promises to "secure our borders, fix our dysfunctional immigration bureaucracy, increase the number of legal immigrants in order to keep families together, and bring undocumented immigrants out of the shadows.”
Well, the President has told us comprehensive immigration reform will have to wait until next year. But, meanwhile, the Obama administration has refused to promulgate regulations that would require immigration detention facilities to adhere to basic standards of care. It rejected a petition by former detainees and civil rights organizations requesting a rule-making procedure in the wake of public reports detailing the humanitarian crisis in the facilities.
The new overseer of ICE, John Morton, said he wanted to turn immigration detention into a “truly civil detention system,” one focused on safely and humanely holding people accused of civil immigration violations until they are deported or released. The announced reforms include creating offices and advisory boards to focus on medical care and the management of centers, reviewing contracts with private prisons and local jails, and installing managers at the 23 largest centers to make sure complaints are heard and problems fixed.
He said Centers would face random inspections. Community groups and immigrant advocates would be invited to offer advice and comment. And the government would stop sending parents with children to a notorious prison near Austin, Texas, as it seeks alternatives to the Bush-era tactic of putting whole families behind bars.
DHS Secretary Janet Napolitano told the Christian Science Monitor that the administration is not waiting for Congress to revamp immigration detention programs. "These major changes in detention ... will result in a system that deals with detainees in an efficient, transparent, and humane manner," she said.
Doubtless we should find some encouragement in these proposed changes. At least, our government has acknowledged that we have a problem. But don’t break out the champagne just yet. These kinds of promises have been made before, and nothing’s changed. My online friend, Mark Dow, wrote a book on the subject – American Gulag: Inside U.S. Immigration Prisons. That was in 2004, but what he described could have happened this morning.
And even if the DHS is now serious, the changes they’re proposing will take many years to achieve.
Maybe it will help that Congress is also getting into the act: Legislation has been introduced in both the House and the Senate that would change the laws governing immigration detention and increase oversight and enforceability of detention standards. But given the lawmakers’ cluttered calendar, don’t hold your breath waiting.
Meanwhile, the Five Horsemen of the Apocalypse are using the current debate on health care reform to whip up more of their toxic brew. Daphne Eviatar of The Washington Independent reports that, “As the heat gets turned up on the health care reform debate, anti-immigrant activists are using the issue to whip up fear and anger toward immigrants, portraying them as a costly and burdensome drain on any taxpayer-supported U.S. health care system. Angry questions about illegal immigrants getting health care at town hall meetings across the country have put many lawmakers on the defensive.”
Why are we not surprised?
And why don’t the American people know more about what’s being done in our name?
There are a number of explanations, but they all come down to power, money, politics, and fear. Immigration has become one of the third rails of American politics. With their principles totally eclipsed by the 2010 mid-term elections, politicians are terrified by the tsunami of jingoistic populism currently sweeping our country. (Witness, the “death panels” town halls.) At the same time, their political skins are vulnerable because they know that Hispanics are the country’s fastest-growing voter demographic – and Hispanics happen to be the largest slice of those in ICE custody. Maybe they can console themselves in the knowledge that illegal immigrants and resident aliens can’t vote.
Also, detention is but a sub-set of Immigration, writ large. Most lawmakers think it’s too far down in the weeds for the American public to grasp.
Then too, the playing field ain’t exactly level. Advocates for changes in our detention system have limited clout and little money. And they’re being opposed by interests that have lots of clout and virtually unlimited money. Included is the well-organized lobbying apparatus opposed to any version of immigration reform. Also included are the companies that have reaped a post-9/11 profits bonanza by operating private for-profit prisons.
Finally, the detention issue has been marked by a series of head-scratching decisions by the Obama Administration. While the DHS’s Napolitano was announcing sweeping future reforms in ICE’s detention practices, she was also committing to an expansion of a little-known statutory provision that allows DHS to deputize local law enforcement authorities to arrest and detain alleged immigration violators. These “partnerships” now exist all over the country.
That has resulted in a highly complex legal specialty being administered by cops who have no knowledge or experience in this discipline – and siphoning off people-power and resources needed to do the important work cops are trained to do. That program happens to be opposed by most law enforcement authorities in the U.S.
But not all. Some think it’s just dandy. That’s how we end up with people like Joe Arpaio, the self-proclaimed “Toughest Sheriff in America,” who is one of the DHS’s “partners” in this program. Arpaio and his merry men are busily rounding up anything that moves in Maricopa County (Pheonix, etc.), Arizona – while at the same time being investigated by the Justice Department for violating his victims’ civil rights.
But, lest I leave you in a state of clinical depression, let me sign off here on a slightly more encouraging note.
Lou Dobbs, one of the “Five Horsemen,” has recently experienced some kind of epiphany (or else he finally got the memo from his bosses at CNN). After his endless tirades against immigration and immigrants – spiced more recently by the large megaphone he’s handed the “birthers” and the “deathers” – Dobbs has begun what is being billed as a year-long series of reports on the health care systems of other countries in the world.
I watched the first of these last week – and, lo and behold, here was Lou Dobbs, actually sounding like a journalist. And he wasn’t just playing a journalist on TV; his report was mostly solid and factual. He even had a few positive things to report about the single-payer system. For a change, he spoke as though he respected the intelligence of the American people.
Well, if Lou Dobbs can get born again, maybe there’s still a sliver of hope for Hannity, O’Reilly, Limbaugh and Beck.
Let us pray!
Jason Leopold, Editor-in-Chief of The Public Record, contributed research for this article.
Sunday, August 16, 2009
Sunday, August 09, 2009
Sotomayor: Umpires Strike Out
By William Fisher
With Sonia Sotomayor’s swearing in over the weekend as an Associate Justice of the U.S. Supreme Court, legal experts are aggressively debating what was learned from her four days of grueling testimony before the Senate Judiciary Committee – and whether these hearings are instructive or merely Capital Hill’s version of Kabuki Theater.
The nomination of the court’s first Latina member – and only the third woman to serve on the nation’s highest court -- was confirmed by the U.S. Senate last Friday by a vote of 68-31, with all Democrats voting “aye and nine Republicans bucking their Party’s line to do likewise. The 55-year-old nominee was sworn in by Chief Justice John Roberts on Saturday.
The widely accepted morning-after view among legal scholars is that Sotomayor’s confirmation hearings were more about politics, campaign endorsements, and financial contributions than about the business of judging.
Amidst a torrent of thinly veiled Republican accusations that her off-the-bench speeches suggested she would be a “judicial activist” on the high court – tempered only by their fear of offending Hispanic voters -- she was questioned about only two or three actual cases.
From the Democrats, there were largely softball questions, punctuated by lavish praise for Sotomayor's personal story and her "mainstream" legal philosophy.
Evidently chagrined at being unable to hit a home run with cases alone, Republican Senators turned to the nation's passtime. The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”
But a number of legal scholars contacted by IPS expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?
Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court’s decisions, wrote that the Senators used the phrase “balls and strikes” at least 11 times, and “umpire” or “umpires” 16 times.
For example, Senator Jeff Sessions, the highest ranking Republican on the Judiciary Committee, said that if a judge had a personal or political agenda, “Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.”
But Senator Sheldon Whitehouse of Rhode Island countered with, “I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes’. If judging were that mechanical, we would not need nine Supreme Court Justices”
His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed.
The civil rights category alone – and there are dozens of categories -- provides more than ample illustrations.
For example, in a civil rights case called Dred Scott v. Sandford in 1857, the Court ruled that people of African descent imported into the United States and held as slaves were not protected by the Constitution and could never be citizens of the United States. But later the Court ruled that at least one part of the Dred Scott decision had already been reversed in 1868 by the Fourteenth Amendment, which gave equal protection of the law to.
But perhaps the most telling example in the civil rights sphere is the Court’s ruling in Plessy v. Ferguson in 1886. In a vote of 8 to 1, the justices ruled that states could force railroad companies to exclude African-Americans from first-class, or "ladies," cars. The case deprived African Americans of equal protection under the 14th Amendment and gave judicial sanction to the doctrine of “separate but equal.”
Legal experts ask, “If they were all umpires, why did one of them – the only Southerner and a slave-owner himself – dissent?
It would not be until the mid-20th Century that such decisions would begin to be reversed, the most sweeping being a unanimous 1954 landmark ruling in a case called Brown v. Board of Education of Topeka. Striking down the Plessy ruling, the Court held that "separate but equal has no place " in the field of public education.” They said separate educational facilities are “inherently unequal." The opinion spurred a social revolution.
A number of prominent legal experts have weighed in with us on the “balls and strikes” analogy.
Chip Pitts, a Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, “Notwithstanding the current public triumph of the ‘umpire’ metaphor, judging usually isn’t a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change -- especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts -- cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice.”
Marjorie Cohn, president of the National Lawyers Guild, told us, “Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best - quite effectively - to shape the Court into a reliable tool to further the right-wing agenda.”
And Prof. Peter M. Shane of the Ohio State University law school said, “The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous.”
He told us, “The right-wing has so successfully animated the public fear of ‘judicial activism’ that any candid admission that the act of judging involves actual judgment is regarded as politically fraught. This is especially regrettable because the GOP's only definition of ‘judicial activism’ seems to be judicial decision- making at odds with the Republican Party platform."
But criticism of the baseball analogy is not limited to progressives. Bruce Fein, a Conservative who served in the Department of Justice under President Ronald Reagan, told us: “The umpire metaphor of the task of a Supreme Court Justice is juvenile. There is no moral or philosophical element in calling balls or strikes -- no more so than in calculating the circumference of a circle… It is ridiculous, but once one acknowledges that, what role remains for the Senate?”
Others are also questioning the future role of the Senate. Shayana Kadidal of the Center for Constitutional Rights is among them. He told us, “In many other countries, the top judges are civil service appointees who’ve worked their way up the ladder since their graduation from law school, and thus all have very long judicial records to examine. But beyond looking at their track records, the review process doesn’t involve any questioning about judicial philosophy and beliefs.”
For decades, Supreme Court nominees didn’t appear for Senate grillings. But that was before television. Today most agree that it is unrealistic to expect politicians to give up a golden opportunity to go before the cameras for headline-making political theater.
With Sonia Sotomayor’s swearing in over the weekend as an Associate Justice of the U.S. Supreme Court, legal experts are aggressively debating what was learned from her four days of grueling testimony before the Senate Judiciary Committee – and whether these hearings are instructive or merely Capital Hill’s version of Kabuki Theater.
The nomination of the court’s first Latina member – and only the third woman to serve on the nation’s highest court -- was confirmed by the U.S. Senate last Friday by a vote of 68-31, with all Democrats voting “aye and nine Republicans bucking their Party’s line to do likewise. The 55-year-old nominee was sworn in by Chief Justice John Roberts on Saturday.
The widely accepted morning-after view among legal scholars is that Sotomayor’s confirmation hearings were more about politics, campaign endorsements, and financial contributions than about the business of judging.
Amidst a torrent of thinly veiled Republican accusations that her off-the-bench speeches suggested she would be a “judicial activist” on the high court – tempered only by their fear of offending Hispanic voters -- she was questioned about only two or three actual cases.
From the Democrats, there were largely softball questions, punctuated by lavish praise for Sotomayor's personal story and her "mainstream" legal philosophy.
Evidently chagrined at being unable to hit a home run with cases alone, Republican Senators turned to the nation's passtime. The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”
But a number of legal scholars contacted by IPS expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?
Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court’s decisions, wrote that the Senators used the phrase “balls and strikes” at least 11 times, and “umpire” or “umpires” 16 times.
For example, Senator Jeff Sessions, the highest ranking Republican on the Judiciary Committee, said that if a judge had a personal or political agenda, “Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.”
But Senator Sheldon Whitehouse of Rhode Island countered with, “I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes’. If judging were that mechanical, we would not need nine Supreme Court Justices”
His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed.
The civil rights category alone – and there are dozens of categories -- provides more than ample illustrations.
For example, in a civil rights case called Dred Scott v. Sandford in 1857, the Court ruled that people of African descent imported into the United States and held as slaves were not protected by the Constitution and could never be citizens of the United States. But later the Court ruled that at least one part of the Dred Scott decision had already been reversed in 1868 by the Fourteenth Amendment, which gave equal protection of the law to.
But perhaps the most telling example in the civil rights sphere is the Court’s ruling in Plessy v. Ferguson in 1886. In a vote of 8 to 1, the justices ruled that states could force railroad companies to exclude African-Americans from first-class, or "ladies," cars. The case deprived African Americans of equal protection under the 14th Amendment and gave judicial sanction to the doctrine of “separate but equal.”
Legal experts ask, “If they were all umpires, why did one of them – the only Southerner and a slave-owner himself – dissent?
It would not be until the mid-20th Century that such decisions would begin to be reversed, the most sweeping being a unanimous 1954 landmark ruling in a case called Brown v. Board of Education of Topeka. Striking down the Plessy ruling, the Court held that "separate but equal has no place " in the field of public education.” They said separate educational facilities are “inherently unequal." The opinion spurred a social revolution.
A number of prominent legal experts have weighed in with us on the “balls and strikes” analogy.
Chip Pitts, a Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, “Notwithstanding the current public triumph of the ‘umpire’ metaphor, judging usually isn’t a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change -- especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts -- cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice.”
Marjorie Cohn, president of the National Lawyers Guild, told us, “Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best - quite effectively - to shape the Court into a reliable tool to further the right-wing agenda.”
And Prof. Peter M. Shane of the Ohio State University law school said, “The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous.”
He told us, “The right-wing has so successfully animated the public fear of ‘judicial activism’ that any candid admission that the act of judging involves actual judgment is regarded as politically fraught. This is especially regrettable because the GOP's only definition of ‘judicial activism’ seems to be judicial decision- making at odds with the Republican Party platform."
But criticism of the baseball analogy is not limited to progressives. Bruce Fein, a Conservative who served in the Department of Justice under President Ronald Reagan, told us: “The umpire metaphor of the task of a Supreme Court Justice is juvenile. There is no moral or philosophical element in calling balls or strikes -- no more so than in calculating the circumference of a circle… It is ridiculous, but once one acknowledges that, what role remains for the Senate?”
Others are also questioning the future role of the Senate. Shayana Kadidal of the Center for Constitutional Rights is among them. He told us, “In many other countries, the top judges are civil service appointees who’ve worked their way up the ladder since their graduation from law school, and thus all have very long judicial records to examine. But beyond looking at their track records, the review process doesn’t involve any questioning about judicial philosophy and beliefs.”
For decades, Supreme Court nominees didn’t appear for Senate grillings. But that was before television. Today most agree that it is unrealistic to expect politicians to give up a golden opportunity to go before the cameras for headline-making political theater.
Thursday, August 06, 2009
Wife of “Disappeared” Appeals to U.N.
By William Fisher
Charging that the U.S. government was complicit in the forced disappearance of an influential Muslim scholar four years ago, human rights groups in the U.S., the U.K., and Switzerland have asked the U.N. to investigate.
In a letter to the U.N., the organizations say Mustafa Setmariam Nassar, a Spanish citizen, was arrested by Pakistani officials and handed over to U.S. officials in October 2005 and has not been heard from since.
The letter was sent to the U.N. Special Rapporteur on Torture, Manfred Nowak, the U.N. Special Rapporteur on the Promotion of Human Rights While Countering Terrorism, Martin Scheinin, and the U.N. Working Group on Enforced or Involuntary Disappearances. It was signed by the American Civil Liberties Union (ACLU), the London-based legal charity Reprieve, and Alkarama in Geneva.
In June 2009, in response to an ACLU request for information about Nassar's whereabouts, the U.S. Central Intelligence Agency (CIA) said it could "neither confirm nor deny the existence or nonexistence of records" concerning Nassar.
Steven M. Watt, staff attorney with the ACLU Human Rights Program, told us, “Mr. Nassar's wife and children just want to know if he is still alive and where he is." He said that "Requests for information about his forced disappearance, nearly four years ago, have been ignored by the U.S. government, and his family now has no other choice but to turn to the international community for assistance in their quest.”
He added, “The CIA should be held accountable. It should allow his family to know what happened to him and where he is. Or deny that it had any involvement in his disappearance."
The letter asks the U.N. to raise Nassar's case with the U.S. government and other governments that may have assisted the U.S. in Nassar's disappearance or may have information that could assist in locating him.
The organizations acknowledge that information about Nassar's disappearance is scarce. But they say “the known details suggest he was a victim of the unlawful extraordinary rendition" program, which enabled the U.S., with the assistance of other governments, to kidnap and transport foreign nationals suspected of terrorism to secret overseas detention facilities for interrogation and torture.
Official U.S. documents and media reports indicate that the U.S. had long been interested in capturing Nassar, suspecting him of involvement in certain terrorist acts but never charging him with a crime. In January 2005, months before his reported capture in Pakistan, the U.S. Embassy in Pakistan announced a $5 million reward for information leading to Nassar's capture, which was withdrawn around the time of his reported capture.
The U.S. National Counterterrorism Center confirms Nassar's capture in November 2005, and media reports indicate that Nassar was later held for a time at a U.S. military base on the British-owned island of Diego Garcia in the Indian Ocean.
The Reprieve group also demanded the British government reveal details of the secret illegal detention of what it called the ‘ghost’ prisoner on Diego Garcia.
Reprieve says Nassar was sent to Syria, where he was “held incommunicado in shocking conditions and almost certainly tortured.”
The group added, “The U.K. shares responsibility for Nasser’s disappearance because of its complicity in his ‘ghost’ detention on the Diego Garcia and elsewhere.
It has written to the U.K. government on behalf of Nasser’s wife to “demand the U.K. fulfils its legal obligation to investigate his disappearance.”
Reprieve’s Director, Clive Stafford Smith, said: “Enforced disappearance is a crime most associated with ruthless South American dictatorships, yet here we have the U.S. and British governments embroiled in the same dirty deeds. Kidnapping is a crime in anyone’s language, and it is about time that powerful governments are held to account for their crime against Mustafa Nasser.”
Diego Garcia has featured prominently in at least two other current cases. In one, Reprieve is suing the U.K. government on behalf of British resident Binyam Mohamed, a recently released Guantanamo detainee, for allowing the island’s airbase to be used to facilitate Mohammed’s “rendition,” by landing to refuel.
Mohammed was first rendered from Pakistan to prison in Morocco, and finally to Guantanamo. The group claims he was tortured in all three locations.
David Miliband, the British Foreign Secretary, has argued before the U.K. High Court that it must suppress evidence of torture because the U.S. has threatened to discontinue sharing intelligence with the British if it discloses such evidence. The specific evidence in this case is a seven-paragraph document that Reprieve says has no intelligence or national security value but includes American admissions that they tortured Mohammed.
The High Court Justices said that such a threat was not based in law. "I mean, it is an exercise of naked political power," Lord Justice Thomas said, adding, "That is not constitutional, it is the use of naked political power." Under British law, it is a criminal offence to suppress evidence of torture.
In the second case, Mohammed and four other now-released Guantanamo detainees are suing a Boeing Company subsidiary, Jeppesen Dataplan, for knowingly assisting in Mohammed’s rendition by providing the CIA with logistical support for the flight that landed on Diego Garcia for refueling.
In the Nassar case, responding to a June 2009 request from a Spanish judge for information on Nassar's whereabouts, the U.S. Federal Bureau of Investigation (FBI) said it was not holding him in the United States but did not address whether he was being held in U.S. custody elsewhere. Asserting that the information is classified, the U.S. government has also refused to answer direct requests for information about Nassar's whereabouts made by his wife, Spanish citizen Helena Moreno Cruz.
"I have been bringing up four children without their father for nearly four years now. They keep asking about dad and I have no idea what to tell them anymore – I don't even know if their father is still alive, she said.”
"If my husband is suspected of doing anything wrong, he should get his day in court. If he isn't, he should be let go. No one deserves to be treated like this,” she added.
Nassar, a 42 year-old Spanish citizen of Syrian origin, is considered an influential Islamic theorist and intellectual. He has written a number of books and articles on Islam and jihad.
Law enforcement authorities in the U.K., Spain, and the U.S. have long suspected Nassar of having been involved in a number of terrorist acts, including the September 11 2001 attacks against the U.S., though he has never been charged with a crime.
In the early 1980s, Nassar fled Syria following his involvement in a failed attempt by the Muslim Brotherhood to overthrow the government then in power.
The letter to the U.N. says the former U.S. administration of George W. Bush pursued Nassar at least since November 2004, when it offered a $5 million reward for information relating to his capture as part of its “Rewards for Justice” program. But it says that around the time of his reported capture, the government removed Nassar’s name from the “Rewards for Justice” list, and withdrew the $5 million reward for information leading to his arrest.
Charging that the U.S. government was complicit in the forced disappearance of an influential Muslim scholar four years ago, human rights groups in the U.S., the U.K., and Switzerland have asked the U.N. to investigate.
In a letter to the U.N., the organizations say Mustafa Setmariam Nassar, a Spanish citizen, was arrested by Pakistani officials and handed over to U.S. officials in October 2005 and has not been heard from since.
The letter was sent to the U.N. Special Rapporteur on Torture, Manfred Nowak, the U.N. Special Rapporteur on the Promotion of Human Rights While Countering Terrorism, Martin Scheinin, and the U.N. Working Group on Enforced or Involuntary Disappearances. It was signed by the American Civil Liberties Union (ACLU), the London-based legal charity Reprieve, and Alkarama in Geneva.
In June 2009, in response to an ACLU request for information about Nassar's whereabouts, the U.S. Central Intelligence Agency (CIA) said it could "neither confirm nor deny the existence or nonexistence of records" concerning Nassar.
Steven M. Watt, staff attorney with the ACLU Human Rights Program, told us, “Mr. Nassar's wife and children just want to know if he is still alive and where he is." He said that "Requests for information about his forced disappearance, nearly four years ago, have been ignored by the U.S. government, and his family now has no other choice but to turn to the international community for assistance in their quest.”
He added, “The CIA should be held accountable. It should allow his family to know what happened to him and where he is. Or deny that it had any involvement in his disappearance."
The letter asks the U.N. to raise Nassar's case with the U.S. government and other governments that may have assisted the U.S. in Nassar's disappearance or may have information that could assist in locating him.
The organizations acknowledge that information about Nassar's disappearance is scarce. But they say “the known details suggest he was a victim of the unlawful extraordinary rendition" program, which enabled the U.S., with the assistance of other governments, to kidnap and transport foreign nationals suspected of terrorism to secret overseas detention facilities for interrogation and torture.
Official U.S. documents and media reports indicate that the U.S. had long been interested in capturing Nassar, suspecting him of involvement in certain terrorist acts but never charging him with a crime. In January 2005, months before his reported capture in Pakistan, the U.S. Embassy in Pakistan announced a $5 million reward for information leading to Nassar's capture, which was withdrawn around the time of his reported capture.
The U.S. National Counterterrorism Center confirms Nassar's capture in November 2005, and media reports indicate that Nassar was later held for a time at a U.S. military base on the British-owned island of Diego Garcia in the Indian Ocean.
The Reprieve group also demanded the British government reveal details of the secret illegal detention of what it called the ‘ghost’ prisoner on Diego Garcia.
Reprieve says Nassar was sent to Syria, where he was “held incommunicado in shocking conditions and almost certainly tortured.”
The group added, “The U.K. shares responsibility for Nasser’s disappearance because of its complicity in his ‘ghost’ detention on the Diego Garcia and elsewhere.
It has written to the U.K. government on behalf of Nasser’s wife to “demand the U.K. fulfils its legal obligation to investigate his disappearance.”
Reprieve’s Director, Clive Stafford Smith, said: “Enforced disappearance is a crime most associated with ruthless South American dictatorships, yet here we have the U.S. and British governments embroiled in the same dirty deeds. Kidnapping is a crime in anyone’s language, and it is about time that powerful governments are held to account for their crime against Mustafa Nasser.”
Diego Garcia has featured prominently in at least two other current cases. In one, Reprieve is suing the U.K. government on behalf of British resident Binyam Mohamed, a recently released Guantanamo detainee, for allowing the island’s airbase to be used to facilitate Mohammed’s “rendition,” by landing to refuel.
Mohammed was first rendered from Pakistan to prison in Morocco, and finally to Guantanamo. The group claims he was tortured in all three locations.
David Miliband, the British Foreign Secretary, has argued before the U.K. High Court that it must suppress evidence of torture because the U.S. has threatened to discontinue sharing intelligence with the British if it discloses such evidence. The specific evidence in this case is a seven-paragraph document that Reprieve says has no intelligence or national security value but includes American admissions that they tortured Mohammed.
The High Court Justices said that such a threat was not based in law. "I mean, it is an exercise of naked political power," Lord Justice Thomas said, adding, "That is not constitutional, it is the use of naked political power." Under British law, it is a criminal offence to suppress evidence of torture.
In the second case, Mohammed and four other now-released Guantanamo detainees are suing a Boeing Company subsidiary, Jeppesen Dataplan, for knowingly assisting in Mohammed’s rendition by providing the CIA with logistical support for the flight that landed on Diego Garcia for refueling.
In the Nassar case, responding to a June 2009 request from a Spanish judge for information on Nassar's whereabouts, the U.S. Federal Bureau of Investigation (FBI) said it was not holding him in the United States but did not address whether he was being held in U.S. custody elsewhere. Asserting that the information is classified, the U.S. government has also refused to answer direct requests for information about Nassar's whereabouts made by his wife, Spanish citizen Helena Moreno Cruz.
"I have been bringing up four children without their father for nearly four years now. They keep asking about dad and I have no idea what to tell them anymore – I don't even know if their father is still alive, she said.”
"If my husband is suspected of doing anything wrong, he should get his day in court. If he isn't, he should be let go. No one deserves to be treated like this,” she added.
Nassar, a 42 year-old Spanish citizen of Syrian origin, is considered an influential Islamic theorist and intellectual. He has written a number of books and articles on Islam and jihad.
Law enforcement authorities in the U.K., Spain, and the U.S. have long suspected Nassar of having been involved in a number of terrorist acts, including the September 11 2001 attacks against the U.S., though he has never been charged with a crime.
In the early 1980s, Nassar fled Syria following his involvement in a failed attempt by the Muslim Brotherhood to overthrow the government then in power.
The letter to the U.N. says the former U.S. administration of George W. Bush pursued Nassar at least since November 2004, when it offered a $5 million reward for information relating to his capture as part of its “Rewards for Justice” program. But it says that around the time of his reported capture, the government removed Nassar’s name from the “Rewards for Justice” list, and withdrew the $5 million reward for information leading to his arrest.
Friday, July 31, 2009
Federal Judge Rules "Enough!"
By William Fisher
One of Guantanamo’s youngest prisoners, ordered by a federal judge to be released after almost seven years in detention because his “confession” was obtained through torture, may face further hurdles before being set free.
A federal judge yesterday ordered the government to release Mohammed Jawad, who was reportedly 12-14 years old when he was captured in Afghanistan in 2001. But the Department of Justice (DOJ) said it had new eyewitness testimony of his guilt and was considering filing civilian criminal charges against him.
If they move forward with this prosecution, Jawad would probably be transferred to the U.S. for trial. If not, he would be repatriated to Afghanistan, as requested by the Afghan government, which has indicated that it is prepared to receive him immediately and unconditionally.
Declaring that “Enough has been imposed on this young man to date,” U.S. District Judge Ellen Segal Huvelle ordered the Justice Department to inform Congress of its plans for returning Jawad to Afghanistan by August 6, and to produce a report on the status of his repatriation by August 24. That order is intended to comply with new notification rules recently enacted by Congress, which is fearful of bringing Guantanamo prisoners into the continental U.S.
But criminal prosecution “is a very real possibility,” a Justice Department official told The New York Times, adding, “Whether we can compile enough evidence to support a case is a question we don’t yet know the answer to.”
Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court challenges to any effort by the administration to move his client to the United States to face charges.
And one of Jawad’s civilian lawyers, Jonathan Hafetz, a staff attorney with the American Civil Liberties Union (ACLU) told us, "Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him. We are pleased that the Justice Department has expressed a commitment to getting him home so that this injustice can finally come to an end."
He added, “We have every reason to believe that his nightmare of abuse is over and that Mr. Jawad will soon be back home with his family in Afghanistan. We have been working with the Afghan government and are confident he will not be mistreated when he is sent home.”
Judge Huvelle criticized both the Bush and Obama administrations for their “continuing pattern” of delay. She also said a criminal prosecution would be difficult because Jawad was denied his right to a speedy trial and because his treatment at Guantánamo was more severe than juvenile defendants would face in the U.S.
Huvelle said that while she had no authority to prevent a criminal indictment, she suggested that prosecutors approach this move with caution because of the many problems with the case, including Jawad's mental competency to stand trial and the fact that he has already been incarcerated for 6-plus years.
"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."
Jawad was arrested by Afghan police in December 2002 for allegedly throwing a grenade into a vehicle, wounding two American soldiers and their Afghan interpreter.
While Jawad confessed that he had committed the crime, he told U.S. officials that he did so only because his captors had tortured him. Under President Obama’s new rules for detainees, that would make the evidence against him unusable.
The U.S. Supreme Court ruled 13 months ago that Guantanamo prisoners could bring habeas corpus actions before federal judges to challenge their confinements. Since then, almost all the 241 prisoners still confined there have filed such motions and, of the cases heard to date, 28 have been successful. But of these, 19 men are still being detained, largely because the U.S. cannot find countries willing to receive them.
While the DOJ says it has "newly available evidence" of Jawad's guilt, it says it is not seeking more time to investigate. It says the effort to make a criminal case against Jawad is proceeding separate and apart from his habeas case.
Following his arrest, Jawad was imprisoned at Bagram Airbase in Afghanistan, and then shipped to Guantanamo. During his detention there, he says he was subjected to sleep deprivation.
His military attorney cites records indicating that Jawad was one of GITMO’s “frequent flyers” – prisoners abused by being repeatedly moved from cell to cell. According to the legal advocacy group Human Rights First, Jawad was transferred "from cell to cell 112 times over a two-week period, shackling, moving and unshackling him on average every two hours and fifty minutes. The group also noted that Jawad had attempted suicide several months earlier.
The ACLU says that Jawad is one of two Guantanamo prisoners the U.S. "has charged with war crimes for acts allegedly committed as juveniles.” Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld – who resigned in protest to the military commissions set up to try Guantanamo detainees -- has said that there is “no credible evidence or legal basis to justify Jawad's detention and prosecution, and that his release presents no risk."
Jawad has recently been moved to GITMO’s Camp Iguana, now home to many detainees cleared by the U.S. for release. There, officials say, he has "relative freedom of movement and opportunities for not only education, but also social interaction, physical exercise and recreational activities.”
They describe Camp Iguana as “a communal camp with wooden, hut-like living structures, which provide freedom to move about from different buildings designated for housing, prayer, library, laundry facilities, shower/bathroom, outdoor recreation, and lounge areas. Detainees also have free access to satellite television, books, newspapers, magazines, handheld games, puzzles, and art supplies."
In another habeas corpus action, a second federal judge ordered a detainee released because of the government’s lack of evidence against him. Judge Colleen Kollar-Kotelly said that Kuwaiti citizen Khalid al Mutairi should be released as soon as arrangements can be made with a country willing to accept him and the government meets the new congressional notification requirements. A spokeswoman told media that the DOJ is reviewing the ruling.
Kuwait has been seeking Mutairi's release for some years. He was arrested in Pakistan in 2001. His lawyers say he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. But the U.S. military describes him as a "hard-core extremist," who had been associated with al Qaida and the al Wafa fund, which the U.S. has designated as a terrorist organization.
Habeas corpus, often referred to as "The Great Writ", has been seen as the citizen's principal protection against the power of the state since the time of the Magna Carta. In Latin, it means, "You (shall) have the body."
One of Guantanamo’s youngest prisoners, ordered by a federal judge to be released after almost seven years in detention because his “confession” was obtained through torture, may face further hurdles before being set free.
A federal judge yesterday ordered the government to release Mohammed Jawad, who was reportedly 12-14 years old when he was captured in Afghanistan in 2001. But the Department of Justice (DOJ) said it had new eyewitness testimony of his guilt and was considering filing civilian criminal charges against him.
If they move forward with this prosecution, Jawad would probably be transferred to the U.S. for trial. If not, he would be repatriated to Afghanistan, as requested by the Afghan government, which has indicated that it is prepared to receive him immediately and unconditionally.
Declaring that “Enough has been imposed on this young man to date,” U.S. District Judge Ellen Segal Huvelle ordered the Justice Department to inform Congress of its plans for returning Jawad to Afghanistan by August 6, and to produce a report on the status of his repatriation by August 24. That order is intended to comply with new notification rules recently enacted by Congress, which is fearful of bringing Guantanamo prisoners into the continental U.S.
But criminal prosecution “is a very real possibility,” a Justice Department official told The New York Times, adding, “Whether we can compile enough evidence to support a case is a question we don’t yet know the answer to.”
Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court challenges to any effort by the administration to move his client to the United States to face charges.
And one of Jawad’s civilian lawyers, Jonathan Hafetz, a staff attorney with the American Civil Liberties Union (ACLU) told us, "Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him. We are pleased that the Justice Department has expressed a commitment to getting him home so that this injustice can finally come to an end."
He added, “We have every reason to believe that his nightmare of abuse is over and that Mr. Jawad will soon be back home with his family in Afghanistan. We have been working with the Afghan government and are confident he will not be mistreated when he is sent home.”
Judge Huvelle criticized both the Bush and Obama administrations for their “continuing pattern” of delay. She also said a criminal prosecution would be difficult because Jawad was denied his right to a speedy trial and because his treatment at Guantánamo was more severe than juvenile defendants would face in the U.S.
Huvelle said that while she had no authority to prevent a criminal indictment, she suggested that prosecutors approach this move with caution because of the many problems with the case, including Jawad's mental competency to stand trial and the fact that he has already been incarcerated for 6-plus years.
"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."
Jawad was arrested by Afghan police in December 2002 for allegedly throwing a grenade into a vehicle, wounding two American soldiers and their Afghan interpreter.
While Jawad confessed that he had committed the crime, he told U.S. officials that he did so only because his captors had tortured him. Under President Obama’s new rules for detainees, that would make the evidence against him unusable.
The U.S. Supreme Court ruled 13 months ago that Guantanamo prisoners could bring habeas corpus actions before federal judges to challenge their confinements. Since then, almost all the 241 prisoners still confined there have filed such motions and, of the cases heard to date, 28 have been successful. But of these, 19 men are still being detained, largely because the U.S. cannot find countries willing to receive them.
While the DOJ says it has "newly available evidence" of Jawad's guilt, it says it is not seeking more time to investigate. It says the effort to make a criminal case against Jawad is proceeding separate and apart from his habeas case.
Following his arrest, Jawad was imprisoned at Bagram Airbase in Afghanistan, and then shipped to Guantanamo. During his detention there, he says he was subjected to sleep deprivation.
His military attorney cites records indicating that Jawad was one of GITMO’s “frequent flyers” – prisoners abused by being repeatedly moved from cell to cell. According to the legal advocacy group Human Rights First, Jawad was transferred "from cell to cell 112 times over a two-week period, shackling, moving and unshackling him on average every two hours and fifty minutes. The group also noted that Jawad had attempted suicide several months earlier.
The ACLU says that Jawad is one of two Guantanamo prisoners the U.S. "has charged with war crimes for acts allegedly committed as juveniles.” Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld – who resigned in protest to the military commissions set up to try Guantanamo detainees -- has said that there is “no credible evidence or legal basis to justify Jawad's detention and prosecution, and that his release presents no risk."
Jawad has recently been moved to GITMO’s Camp Iguana, now home to many detainees cleared by the U.S. for release. There, officials say, he has "relative freedom of movement and opportunities for not only education, but also social interaction, physical exercise and recreational activities.”
They describe Camp Iguana as “a communal camp with wooden, hut-like living structures, which provide freedom to move about from different buildings designated for housing, prayer, library, laundry facilities, shower/bathroom, outdoor recreation, and lounge areas. Detainees also have free access to satellite television, books, newspapers, magazines, handheld games, puzzles, and art supplies."
In another habeas corpus action, a second federal judge ordered a detainee released because of the government’s lack of evidence against him. Judge Colleen Kollar-Kotelly said that Kuwaiti citizen Khalid al Mutairi should be released as soon as arrangements can be made with a country willing to accept him and the government meets the new congressional notification requirements. A spokeswoman told media that the DOJ is reviewing the ruling.
Kuwait has been seeking Mutairi's release for some years. He was arrested in Pakistan in 2001. His lawyers say he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. But the U.S. military describes him as a "hard-core extremist," who had been associated with al Qaida and the al Wafa fund, which the U.S. has designated as a terrorist organization.
Habeas corpus, often referred to as "The Great Writ", has been seen as the citizen's principal protection against the power of the state since the time of the Magna Carta. In Latin, it means, "You (shall) have the body."
Saturday, July 25, 2009
JAWAD CASE “AN OUTRAGE,” JUDGE CHARGES
By William Fisher
A federal judge last week excoriated government lawyers for advocating the continued detention of a detainee at Guantanamo Bay after his “confession” was ruled inadmissible because it was extracted through torture.
Calling the case “an outrage,” U.S. District Judge Ellen Segal Huvelle urged the lawyers to “let him out. Send him back to Afghanistan.”
She also questioned the Justice Department’s (DOJ) ability to produce any evidence to justify a trial to determine whether the detainee, Mohammed Jawad, could be held as an enemy combatant.
Jawad was arrested in Afghanistan in 2002 for allegedly throwing a grenade at two U.S. soldiers and their interpreter. He was first imprisoned at Bagram Air Force base, and then illegally rendered to Guantanamo (GITMO).
According to his lawyers, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. Eventually, he tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The Afghan government recently asked the U.S. government to return Jawed and suggested he was as young as 12 when he was captured.
The judge was particularly harsh in her criticism of the U.S. government’s case.
Among her comments: “Seven years and this case is riddled with holes…This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there…Your case has been gutted…The case is in shambles…This case is riddled with holes...The United States Government knows it is lousy…This is a case that's been screaming to everybody for years…This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?”
She concluded: “The time has come to face the music...for seven years the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…It is not fair to keep dragging this out for no good reason...We're not going to wait and wait until you come up with another piece of evidence…This case is an outrage to me…There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win.”
The judge denied the government’s request for a delay in Jawad’s habeas corpus hearing, but gave the lawyers until later in August to produce new evidence.
DOJ lawyers have indicated they may decide to bring Jawad to the U.S. for a criminal trial. They asked Judge Huvelle not to release Jawad until criminal investigators can review the allegations against him. Attorney General Eric Holder has ordered that investigation to be put on an “expedited” basis.
Jonathan Hafetz of the American Civil Liberties Union, one of Jawad’s lawyers, said he did not believe the government could come up with new evidence to support Jawad’s trial in a federal court.
He told us, “It is troubling that after admitting it tortured Jawad and illegally imprisoned him for nearly seven years, the government is not sending him home to Afghanistan right away, as law and justice demand, but is considering prolonging is unlawful imprisonment. We expect that, upon review, the Justice Department will conclude, as it must, that there is no credible or reliable evidence against Jawad, and end this travesty.”
We also discussed the case via email with Jawad’s military defense counsel, Major David Frakt. He said it was “disappointing that the Justice Department has not yet been able to conclude the review that President Obama ordered his first week in office.” However, he added, “As the government has now conceded, there is no legal basis to detain Mr. Jawad under the law of war, so he must be repatriated immediately to Afghanistan. The Afghan government has requested Mr. Jawad to be returned, and he is eager to be reunited with his family. Eighty months in illegal detention is enough.”
On July 1, the ACLU filed a motion to suppress Jawad’s statements, and the Justice Department said it would not oppose that motion. The judge in Jawad’s military commission trial had previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture.
According to Jawad’s lawyers, following his arrest, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. At Guantanamo, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The lead military prosecutor in Jawad’s Military Commission case, Lt. Col. Darrel Vandeveld, resigned in 2008, charging that “There is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”
Vandeveld said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including material that might be helpful to the defense.
He said the absence of such evidence would likely lead to their being wrongly convicted. Testifying that he went from being a "true believer to someone who felt truly deceived" by the tribunals, he said the system in place at the U.S. military facility in Cuba was dysfunctional and deprived the accused of “basic due process.”
Three other military commission prosecutors have resigned under protest, raising questions about the fairness of the system.
During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention center within a year. He also set up task forces to review the case of each detainee still being held there and to make recommendations regarding their future disposition.
There are currently 241 prisoners at the Cuban base. More than 800 have been detained at the base since 2001. More than 500 have been released. While a few have been released recently, the Obama administration – like its predecessor – has had difficulty finding countries willing to accept prisoners classified by U.S. officials as safe to release.
That process has been made more difficult by the unwillingness of Congress to accept any detainees for resettlement in the U.S. Lawmakers have even opposed bringing GITMO prisoners to the U.S. for trials in federal courts.
Currently the administration’s task forces are working on plans to modify the military commissions to afford defendants more due process, and also considering what to with detainees it says cannot be tried but who are too dangerous to release. Human rights advocates have objected to both solutions.
A federal judge last week excoriated government lawyers for advocating the continued detention of a detainee at Guantanamo Bay after his “confession” was ruled inadmissible because it was extracted through torture.
Calling the case “an outrage,” U.S. District Judge Ellen Segal Huvelle urged the lawyers to “let him out. Send him back to Afghanistan.”
She also questioned the Justice Department’s (DOJ) ability to produce any evidence to justify a trial to determine whether the detainee, Mohammed Jawad, could be held as an enemy combatant.
Jawad was arrested in Afghanistan in 2002 for allegedly throwing a grenade at two U.S. soldiers and their interpreter. He was first imprisoned at Bagram Air Force base, and then illegally rendered to Guantanamo (GITMO).
According to his lawyers, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. Eventually, he tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The Afghan government recently asked the U.S. government to return Jawed and suggested he was as young as 12 when he was captured.
The judge was particularly harsh in her criticism of the U.S. government’s case.
Among her comments: “Seven years and this case is riddled with holes…This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there…Your case has been gutted…The case is in shambles…This case is riddled with holes...The United States Government knows it is lousy…This is a case that's been screaming to everybody for years…This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?”
She concluded: “The time has come to face the music...for seven years the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…It is not fair to keep dragging this out for no good reason...We're not going to wait and wait until you come up with another piece of evidence…This case is an outrage to me…There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win.”
The judge denied the government’s request for a delay in Jawad’s habeas corpus hearing, but gave the lawyers until later in August to produce new evidence.
DOJ lawyers have indicated they may decide to bring Jawad to the U.S. for a criminal trial. They asked Judge Huvelle not to release Jawad until criminal investigators can review the allegations against him. Attorney General Eric Holder has ordered that investigation to be put on an “expedited” basis.
Jonathan Hafetz of the American Civil Liberties Union, one of Jawad’s lawyers, said he did not believe the government could come up with new evidence to support Jawad’s trial in a federal court.
He told us, “It is troubling that after admitting it tortured Jawad and illegally imprisoned him for nearly seven years, the government is not sending him home to Afghanistan right away, as law and justice demand, but is considering prolonging is unlawful imprisonment. We expect that, upon review, the Justice Department will conclude, as it must, that there is no credible or reliable evidence against Jawad, and end this travesty.”
We also discussed the case via email with Jawad’s military defense counsel, Major David Frakt. He said it was “disappointing that the Justice Department has not yet been able to conclude the review that President Obama ordered his first week in office.” However, he added, “As the government has now conceded, there is no legal basis to detain Mr. Jawad under the law of war, so he must be repatriated immediately to Afghanistan. The Afghan government has requested Mr. Jawad to be returned, and he is eager to be reunited with his family. Eighty months in illegal detention is enough.”
On July 1, the ACLU filed a motion to suppress Jawad’s statements, and the Justice Department said it would not oppose that motion. The judge in Jawad’s military commission trial had previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture.
According to Jawad’s lawyers, following his arrest, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. At Guantanamo, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The lead military prosecutor in Jawad’s Military Commission case, Lt. Col. Darrel Vandeveld, resigned in 2008, charging that “There is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”
Vandeveld said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including material that might be helpful to the defense.
He said the absence of such evidence would likely lead to their being wrongly convicted. Testifying that he went from being a "true believer to someone who felt truly deceived" by the tribunals, he said the system in place at the U.S. military facility in Cuba was dysfunctional and deprived the accused of “basic due process.”
Three other military commission prosecutors have resigned under protest, raising questions about the fairness of the system.
During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention center within a year. He also set up task forces to review the case of each detainee still being held there and to make recommendations regarding their future disposition.
There are currently 241 prisoners at the Cuban base. More than 800 have been detained at the base since 2001. More than 500 have been released. While a few have been released recently, the Obama administration – like its predecessor – has had difficulty finding countries willing to accept prisoners classified by U.S. officials as safe to release.
That process has been made more difficult by the unwillingness of Congress to accept any detainees for resettlement in the U.S. Lawmakers have even opposed bringing GITMO prisoners to the U.S. for trials in federal courts.
Currently the administration’s task forces are working on plans to modify the military commissions to afford defendants more due process, and also considering what to with detainees it says cannot be tried but who are too dangerous to release. Human rights advocates have objected to both solutions.
Thursday, July 16, 2009
Afghan Massacre: More Bad Apples?
By William Fisher
A prominent human rights group is calling on the U.S. Department of Justice to investigate why the administration of former President George W. Bush blocked three different probes into war crimes in Afghanistan where as many as 2,000 surrendered Taliban fighters were reportedly suffocated in container trucks and then buried in a mass grave by Afghan forces operating jointly with American forces.
Physicians for Human Rights (PHR), the Boston-based group that discovered the mass gravesite in 2002, has issued the call for the criminal probe. The organization says U.S. government documents it has obtained show that the bodies were reportedly buried in mass graves in the Dasht-e-Leili desert near Sheberghan, Afghanistan. It charges that Afghan warlord General Abdul Rashid Dostum, who it says was on the payroll of the U.S. Central Intelligence Agency (CIA), was responsible for the massacre.
“Physicians for Human Rights went to investigate inhumane conditions at a prison in northern Afghanistan, but what we found was much worse,” stated Susannah Sirkin, PHR’s Deputy Director. “Our researchers documented an apparent mass grave site with reportedly thousands of bodies of captured prisoners who were suffocated to death in trucks. That was 2002; seven years later, we still seek answers about what exactly happened and who was involved.”
PHR says senior Bush Administration officials impeded investigations by the Federal Bureau of Investigation (FBI), and the State and Defense departments, and apparently never conducted a full inquiry. The New York Times made the disclosure earlier this month in a story by Pulitzer Prize winning reporter James Risen.
Subsequently, President Barack Obama told CNN’s Anderson Cooper that he has directed his national security team to look into the alleged massacre. Obama said the government needs to find out whether actions by the U.S. contributed to possible war crimes.
“The Bush Administration’s disregard for the rule of law and the Geneva Conventions led to torture of prisoners in Guantánamo and many other secret places,” noted Nathaniel Raymond, PHR’s lead researcher on Dasht-e-Leili.
“Contrary to the legal opinions of the previous Department of Justice, the principles of the Geneva Conventions are non-negotiable, as is their enforcement. President Obama must open a full and transparent criminal probe and prosecute any U.S. officials found to have broken the law,” he said.
“The State Department’s statement to the New York Times that suspected war crimes should be thoroughly investigated indicates a move towards full accountability,” added Raymond. “We stand ready to aid the US government in investigating this massacre. It is time for the cover-up to end.”
PHR reiterated its call on the Government of Afghanistan, which has jurisdiction over the alleged mass grave site, to secure the area with the assistance of ISAF (International Security Assistance Force-Afghanistan), protect witnesses to the initial incident and the ensuing tampering and ensure a full investigation of remaining evidence at the site, including the tracing of the substantial amount of soil that appears to have been removed in 2006.
“Gravesites have been tampered with, evidence has been destroyed, and witnesses have been tortured and killed,” PHR said. “The Dasht-e-Leili mass grave site must finally be secured, all surviving witnesses must be protected, and the Government of Afghanistan, in coordination with the UN and NATO (North Atlantic Treaty Organization), must at last allow a full investigation to go forward.”
PHR charged that American officials have been reluctant to pursue an investigation — sought by officials from the FBI, the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the CIA and his militia worked closely with United States Special Forces in 2001.
The group said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.
“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically’.”
PHR’s Raymond, who is head of the organization’s Campaign Against Torture, told us that President Obama’s statement was welcomed. But, he added, “The President’s rhetoric must be matched by urgent action. He needs to pressure President Karzai to secure the mass graves site, protect witnesses and make sure that U.S.-led military forces and the United Nations in Afghanistan protect all evidence of the crimes.”
PHR said that, in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the Afghan president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.
The question of culpability for the prisoner deaths — which may have been the most significant mass killing in Afghanistan after the 2001 American-led invasion — has taken on new urgency since the general, an important Karzai ally, was reinstated to his government post last month. He had been suspended last year and living in exile in Turkey after he was accused of threatening a political rival at gunpoint.
The killings reportedly occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.
Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers.
General Dostum, however, has said previously that any such deaths of the Taliban prisoners were unintentional. He has said that only 200 prisoners died and blamed combat wounds and disease for most of the fatalities.
The first calls for an investigation came from his group and the International Committee of the Red Cross. A military commander in the United States-led coalition rejected a request by a Red Cross official for an inquiry in late 2001, according to the official, who, in keeping with his organization’s policy, would speak only on condition of anonymity and declined to identify the commander.
Subsequently, PHR asked the Defense Department to investigate the alleged massacre, but no action was taken. PHR says the prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.
“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime. And Wolfowitz said we are not going to be going after him for that.
A prominent human rights group is calling on the U.S. Department of Justice to investigate why the administration of former President George W. Bush blocked three different probes into war crimes in Afghanistan where as many as 2,000 surrendered Taliban fighters were reportedly suffocated in container trucks and then buried in a mass grave by Afghan forces operating jointly with American forces.
Physicians for Human Rights (PHR), the Boston-based group that discovered the mass gravesite in 2002, has issued the call for the criminal probe. The organization says U.S. government documents it has obtained show that the bodies were reportedly buried in mass graves in the Dasht-e-Leili desert near Sheberghan, Afghanistan. It charges that Afghan warlord General Abdul Rashid Dostum, who it says was on the payroll of the U.S. Central Intelligence Agency (CIA), was responsible for the massacre.
“Physicians for Human Rights went to investigate inhumane conditions at a prison in northern Afghanistan, but what we found was much worse,” stated Susannah Sirkin, PHR’s Deputy Director. “Our researchers documented an apparent mass grave site with reportedly thousands of bodies of captured prisoners who were suffocated to death in trucks. That was 2002; seven years later, we still seek answers about what exactly happened and who was involved.”
PHR says senior Bush Administration officials impeded investigations by the Federal Bureau of Investigation (FBI), and the State and Defense departments, and apparently never conducted a full inquiry. The New York Times made the disclosure earlier this month in a story by Pulitzer Prize winning reporter James Risen.
Subsequently, President Barack Obama told CNN’s Anderson Cooper that he has directed his national security team to look into the alleged massacre. Obama said the government needs to find out whether actions by the U.S. contributed to possible war crimes.
“The Bush Administration’s disregard for the rule of law and the Geneva Conventions led to torture of prisoners in Guantánamo and many other secret places,” noted Nathaniel Raymond, PHR’s lead researcher on Dasht-e-Leili.
“Contrary to the legal opinions of the previous Department of Justice, the principles of the Geneva Conventions are non-negotiable, as is their enforcement. President Obama must open a full and transparent criminal probe and prosecute any U.S. officials found to have broken the law,” he said.
“The State Department’s statement to the New York Times that suspected war crimes should be thoroughly investigated indicates a move towards full accountability,” added Raymond. “We stand ready to aid the US government in investigating this massacre. It is time for the cover-up to end.”
PHR reiterated its call on the Government of Afghanistan, which has jurisdiction over the alleged mass grave site, to secure the area with the assistance of ISAF (International Security Assistance Force-Afghanistan), protect witnesses to the initial incident and the ensuing tampering and ensure a full investigation of remaining evidence at the site, including the tracing of the substantial amount of soil that appears to have been removed in 2006.
“Gravesites have been tampered with, evidence has been destroyed, and witnesses have been tortured and killed,” PHR said. “The Dasht-e-Leili mass grave site must finally be secured, all surviving witnesses must be protected, and the Government of Afghanistan, in coordination with the UN and NATO (North Atlantic Treaty Organization), must at last allow a full investigation to go forward.”
PHR charged that American officials have been reluctant to pursue an investigation — sought by officials from the FBI, the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the CIA and his militia worked closely with United States Special Forces in 2001.
The group said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.
“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically’.”
PHR’s Raymond, who is head of the organization’s Campaign Against Torture, told us that President Obama’s statement was welcomed. But, he added, “The President’s rhetoric must be matched by urgent action. He needs to pressure President Karzai to secure the mass graves site, protect witnesses and make sure that U.S.-led military forces and the United Nations in Afghanistan protect all evidence of the crimes.”
PHR said that, in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the Afghan president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.
The question of culpability for the prisoner deaths — which may have been the most significant mass killing in Afghanistan after the 2001 American-led invasion — has taken on new urgency since the general, an important Karzai ally, was reinstated to his government post last month. He had been suspended last year and living in exile in Turkey after he was accused of threatening a political rival at gunpoint.
The killings reportedly occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.
Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers.
General Dostum, however, has said previously that any such deaths of the Taliban prisoners were unintentional. He has said that only 200 prisoners died and blamed combat wounds and disease for most of the fatalities.
The first calls for an investigation came from his group and the International Committee of the Red Cross. A military commander in the United States-led coalition rejected a request by a Red Cross official for an inquiry in late 2001, according to the official, who, in keeping with his organization’s policy, would speak only on condition of anonymity and declined to identify the commander.
Subsequently, PHR asked the Defense Department to investigate the alleged massacre, but no action was taken. PHR says the prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.
“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime. And Wolfowitz said we are not going to be going after him for that.
Wednesday, July 15, 2009
JUDGE MONA LISA SET TO ENJOY LAST SMILE
By William Fisher
Today, the first full day of questions from members of the U.S. Senate Judiciary Committee considering the confirmation of Supreme Court Justice Sonia Sotomayor, was remarkable mainly for the softball questions asked by her Democratic supporters and the snarky, “gotcha” questions posed by her Republican opponents.
With a few notable exceptions, many observers found today’s hearing an exhibition of the triumph of politics over jurisprudence. Much of the session appeared to be more akin to a political debate among rivals in a political campaign than a discussion of the profound national implications of the appointment of a jurist to a lifetime appointment.
Chairman Patrick Leahy, a Vermont Democrat, the first questioner, sought to preempt Republican criticism of an oft-quoted 2001 off-the-court speech by Sotomayor, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
She said, "I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”
She explained that the speech was given to Hispanic and other young law students and that she was trying to inspire them to believe “they could be anything that they wanted to be.”
But the “wise Latina” issue was far from settled. It was raised again immediately afterward by the senior Republican on the Committee, Senator Jeff Sessions of Alabama. Sotomayor told him her background as a trial and appellate court judge had taught her to keep an open mind and not come to any cases with a prejudgment of the outcome.
But Sessions was apparently not satisfied; he returned to the “wise Latina” issue several times, as did Republican Senators Orrin Hatch of Utah, John Kyl, of Arizona, and Lindsey Graham of South Carolina. Sessions said he was “troubled” by the sentiment he finds in the remarks.
Overall, there was far more discussion of the “wise Latina” issue than of Sotomayor’s legal decisions or her approach to judging.
"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said yesterday after the hearings ended for the day.
"And they've expressed a rather serious critique of the classical ideal of blind justice," he said.
Trying to portray Sotomayor as an “activist judge,” the Alabama lawmaker cited her onetime comment suggesting that judges make policy.
"I do believe judges must apply the law and not make the law," the nominee said today.
"I don't think it's that clear," said Sessions.
But Sotomayor retained her composure, sitting with her leg elevated due a recent broken ankle, and with a half-smile reminiscent of the Mona Lisa. She smiled at Sessions and responded: "Life experiences influence us, in a good way. But that's not what drives the result. The impartiality in the law drives the result," she said.
She also said that she accepted as "settled" the current U.S. law permitting abortion, and indicated that she might be open to the idea of permitting Supreme Court hearings to be broadcast on television.
Sen. Charles Grassley, Republican from Iowa, asked Sotomayor about the Kelo case. Sotomayor said she "has to accept, because it is precedent" the court's ruling. The extent of the ruling, she says, "has to await the next case." In that case, the Supreme Court ruled that the city of New London, Connecticut, had the right to seize private property and turn it over to a commercial developer in order to encourage economic development.
Despite their criticisms, Republicans were careful to speak glowingly about Sotomayor’s humble beginning, her rise from a public housing project in the south Bronx to a distinguished career in the law.
"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, an Arizona Republican.
On this issue, the Republicans find themselves between a rock and a hard place: They need to be critical of the nominee, but they need to do it in a way that will avoid alienating Hispanic voters, who make up the nation’s fastest-growing minority demographic.
She was also questioned about a recent controversial ruling she and two other judges made against white New Haven, Connecticut firefighters who alleged reverse discrimination after being denied promotions.
Sotomayor explained that the ruling wasn't about affirmative action or quotas. "The issue was not what we would do or not do, because we were following precedent," she said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court. Sotomayor said she would "absolutely" have reached a different result in light of the Supreme Court's reversal.
The 55-year-old nominee was also grilled by Sessions on the issue of guns today. Rejecting a challenge to a New York state law banning possession of "chuka sticks," a martial arts weapon, Sotomayor said she was bound by a 19th century Supreme Court ruling that said the Second Amendment does not apply to state laws that limit weapons possession.
She noted that the justices, in ruling last year that individuals have a constitutional right to possess guns for self-defense, left open the question of whether the ruling would apply to state and local gun control laws. She said it is up to the high court, not other judges, to make that decision.
In response to questions from Democratic Senator Russ Feingold, Sotomayor declined to detail how she felt about the actions of the federal government after the terrorist attacks of September 11, 2001, the secrecy of the FISA (Foreign Intelligence Surveillance Act) court, warrantless wiretapping, the torture statute, and the limits of presidential authority because the issues are likely to come before the Supreme Court.
However, she volunteered that the power of the presidency is at its strongest when the executive branch of government acts in concert with congress.
Arguably, the only time Sotomayor appeared to be trying to find ways to evade non-judicial questions was when Senator Graham asked about her 12-year service on the board of the Puerto Rican Legal Defense and Education Fund, some 30 years ago. She ducked questions about taxpayer-funded abortions and the death penalty, saying as a board member her principal job was fund-raising. Graham promised to revisit the issue with her tomorrow.
Sotomayor is of Puerto Rican descent and was born in the Bronx, New York, where she and her family lived in a public housing project. If confirmed by the full Senate, she would be the Supreme Court’s first Latina Justice.
The hearing continues tomorrow.
Today, the first full day of questions from members of the U.S. Senate Judiciary Committee considering the confirmation of Supreme Court Justice Sonia Sotomayor, was remarkable mainly for the softball questions asked by her Democratic supporters and the snarky, “gotcha” questions posed by her Republican opponents.
With a few notable exceptions, many observers found today’s hearing an exhibition of the triumph of politics over jurisprudence. Much of the session appeared to be more akin to a political debate among rivals in a political campaign than a discussion of the profound national implications of the appointment of a jurist to a lifetime appointment.
Chairman Patrick Leahy, a Vermont Democrat, the first questioner, sought to preempt Republican criticism of an oft-quoted 2001 off-the-court speech by Sotomayor, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
She said, "I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”
She explained that the speech was given to Hispanic and other young law students and that she was trying to inspire them to believe “they could be anything that they wanted to be.”
But the “wise Latina” issue was far from settled. It was raised again immediately afterward by the senior Republican on the Committee, Senator Jeff Sessions of Alabama. Sotomayor told him her background as a trial and appellate court judge had taught her to keep an open mind and not come to any cases with a prejudgment of the outcome.
But Sessions was apparently not satisfied; he returned to the “wise Latina” issue several times, as did Republican Senators Orrin Hatch of Utah, John Kyl, of Arizona, and Lindsey Graham of South Carolina. Sessions said he was “troubled” by the sentiment he finds in the remarks.
Overall, there was far more discussion of the “wise Latina” issue than of Sotomayor’s legal decisions or her approach to judging.
"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said yesterday after the hearings ended for the day.
"And they've expressed a rather serious critique of the classical ideal of blind justice," he said.
Trying to portray Sotomayor as an “activist judge,” the Alabama lawmaker cited her onetime comment suggesting that judges make policy.
"I do believe judges must apply the law and not make the law," the nominee said today.
"I don't think it's that clear," said Sessions.
But Sotomayor retained her composure, sitting with her leg elevated due a recent broken ankle, and with a half-smile reminiscent of the Mona Lisa. She smiled at Sessions and responded: "Life experiences influence us, in a good way. But that's not what drives the result. The impartiality in the law drives the result," she said.
She also said that she accepted as "settled" the current U.S. law permitting abortion, and indicated that she might be open to the idea of permitting Supreme Court hearings to be broadcast on television.
Sen. Charles Grassley, Republican from Iowa, asked Sotomayor about the Kelo case. Sotomayor said she "has to accept, because it is precedent" the court's ruling. The extent of the ruling, she says, "has to await the next case." In that case, the Supreme Court ruled that the city of New London, Connecticut, had the right to seize private property and turn it over to a commercial developer in order to encourage economic development.
Despite their criticisms, Republicans were careful to speak glowingly about Sotomayor’s humble beginning, her rise from a public housing project in the south Bronx to a distinguished career in the law.
"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, an Arizona Republican.
On this issue, the Republicans find themselves between a rock and a hard place: They need to be critical of the nominee, but they need to do it in a way that will avoid alienating Hispanic voters, who make up the nation’s fastest-growing minority demographic.
She was also questioned about a recent controversial ruling she and two other judges made against white New Haven, Connecticut firefighters who alleged reverse discrimination after being denied promotions.
Sotomayor explained that the ruling wasn't about affirmative action or quotas. "The issue was not what we would do or not do, because we were following precedent," she said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court. Sotomayor said she would "absolutely" have reached a different result in light of the Supreme Court's reversal.
The 55-year-old nominee was also grilled by Sessions on the issue of guns today. Rejecting a challenge to a New York state law banning possession of "chuka sticks," a martial arts weapon, Sotomayor said she was bound by a 19th century Supreme Court ruling that said the Second Amendment does not apply to state laws that limit weapons possession.
She noted that the justices, in ruling last year that individuals have a constitutional right to possess guns for self-defense, left open the question of whether the ruling would apply to state and local gun control laws. She said it is up to the high court, not other judges, to make that decision.
In response to questions from Democratic Senator Russ Feingold, Sotomayor declined to detail how she felt about the actions of the federal government after the terrorist attacks of September 11, 2001, the secrecy of the FISA (Foreign Intelligence Surveillance Act) court, warrantless wiretapping, the torture statute, and the limits of presidential authority because the issues are likely to come before the Supreme Court.
However, she volunteered that the power of the presidency is at its strongest when the executive branch of government acts in concert with congress.
Arguably, the only time Sotomayor appeared to be trying to find ways to evade non-judicial questions was when Senator Graham asked about her 12-year service on the board of the Puerto Rican Legal Defense and Education Fund, some 30 years ago. She ducked questions about taxpayer-funded abortions and the death penalty, saying as a board member her principal job was fund-raising. Graham promised to revisit the issue with her tomorrow.
Sotomayor is of Puerto Rican descent and was born in the Bronx, New York, where she and her family lived in a public housing project. If confirmed by the full Senate, she would be the Supreme Court’s first Latina Justice.
The hearing continues tomorrow.
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