By William Fisher
A federal district court has thrown out the case of two men who died in U.S. custody at Guantanamo Bay in 2006 and who are seeking to hold U.S. government officials responsible for the men’s torture, arbitrary detention and ultimate deaths.
The families of the dead men claimed that it was a violation of due process and cruel treatment to detain them for four years without charge while subjecting them to inhumane and degrading conditions of confinement and violent acts of torture and abuse. But, in dismissing the case, the court ruled that the deceased’s claims could not be heard in federal court because the men were held on the basis of an “enemy combatant” finding by a Combatant Status Review Tribunal (CSRT). The CSRTs were later found by the Supreme Court itself to be inadequate.
Following a two-year investigation, the military concluded that the men had
committed suicide. But recent first-hand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.
The deaths of three men at Guantanamo were the subject of an article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on US detention policy and practice. Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report—a reconstruction of the events—was simply unbelievable.”
He went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”
The district court held that the families’ claims were excluded by a jurisdiction-stripping provision of the 2006 Military Commissions Act that bars any challenge by a Guantánamo detainee to their treatment, conditions, or any other aspect of their detention, while failing to address the plaintiffs’ arguments about the unconstitutionality of the provision itself.
The court also dismissed the assertions of the dead men under the Alien Tort Claims Act, based on a holding by the D.C. Circuit Court in another detainee case that found that even torture or seriously criminal conduct can fall within the proper “scope of employment” of a government official.
The court also did not consider the plaintiffs’ claims under the Federal Tort Claims Act, including for emotional distress by the families, by holding that the U.S. military base at Guantánamo is still a “foreign country” for the purposes of the Act.
George Brent Mickum IV, a Washington D.C.-based attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths."
And Pardiss Kebriaei, staff attorney at the Center for Constitutional Rights (CCR), a legal advocacy organization that has provided legal defense for many Guantanamo Bay inmates, said, “These men were tortured and detained for four years on the basis of an arbitrary designation of ‘enemy combatant’ and died in the custody of the United States military. They and their families should have the right to have their claims heard at the very least.”
“The court’s decision is all the more troubling in light of recent information that seriously undermines the official account of how these men died, and creates an even greater urgency for transparency and accountability,” she said.
CCR is considering whether it will appeal the verdict.
In January 2010, Scott Horton reported in Harper’s Magazine the accounts of four soldiers assigned to guard the camp where the deceased were detained at the time of their deaths. He wrote, “The soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, strongly suggest that the deceased were taken to a secret “black site” at Guantánamo on the night of their deaths and died at that site or from events that occurred there.”
Horton said the “undisclosed facility was thought to have been used by the CIA or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up initiated by the authorities within hours of the men’s deaths, and say they were ordered by their superiors not to speak out.”
Additional reports by the Seton Hall University School of Law analyzing the
military’s investigation files reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.
Seton Hall law professor and Director of the Center for Policy and Research, Mark P. Denbeaux, said, “Amazingly, some of DoD’s statements purporting to defend the NCIS investigation actually impeach it; others are irrelevant or misdirected.”
Denbeaux added, “The inflated number of statements supposedly supporting the NCIS Report are not as important as the statements omitted from the NCIS Report.”
“The Center for Policy and Research Report shows that each of the cell block guards on duty that night gave two statements, and the first statement for each is missing. The only statements from the guards in the NCIS report were made only after those guards had been threatened with prosecution because of the contents of their previous—and now missing—statements,” he said.
Professor Denbeaux continued, “Not only are the Alpha Block Guards first statements missing, but the Center for Policy & Research discovered that all of the contemporaneous statements from every person on duty that night are missing. Everyone on duty that night, in addition the Alpha Block guards, was ordered to write sworn statements as soon as the detainees were declared dead. And every one of those statements is missing.”
CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah
Al-Salami of Yemen, two men who were reportedly found dead along with a third detainee, Mani Al-Utaybi of Saudi Arabia, in their cells at Guantanamo on June 10, 2006.
At the time of their deaths, Al-Zahrani and Al-Salami had been detained incommunicado for more than four years without charge. In letters found
following their deaths, the men described their conditions and abuse, including being beaten by teams of military police known as the “Extreme Reaction Force,” deprived of sleep for up to 30 days at a time, subjected to desecration of the Qur’an and forced shaving, and denied necessary medical care.
Thursday, February 18, 2010
SCOTUS to Revisit Terrorism Support
By William Fisher
Next week the Supreme Court will consider one of the most consequential cases to arise from the “global war on terrorism.”
The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.
The Supreme Court case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.” It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list. The hearing is scheduled for Tuesday (March 23).
The plaintiffs, represented by the Center for Constitutional Rights (CCR), a legal advocacy group, charges that the law goes too far in criminalizing speech, including prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” The law currently deems it a crime speak within these issues, even if the speech is totally peaceful and nonviolent.
Lower courts have ruled several provisions of the statute “unconstitutionally vague” because they involve free speech and leave citizens to speculate about their meaning.
David Cole, a professor at the Georgetown University Law Center, who is a CCR Cooperating Attorney on this case, says, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision, of which the administration is seeking review, is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
The material-support ban, which imposes heavy criminal penalties on those who violate it, has been used by the government in dozens of cases. More than 150 defendants have been charged under the statute since 2001.There have been approximately 75 convictions.
Before the high court, Cole will be representing the Humanitarian Law Project (HLP) and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization.
"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."
The U.S. Government’s Solicitor General, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."
The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.
Attorney Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he said, adding:
“With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence,” he said.
The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey. He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.
Over the years, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the U.S. 9th Circuit Court of Appeals declared parts of the anti-terrorism law vague and unconstitutional. However, the Obama administration appealed to the Supreme Court, arguing that these rulings undercut "a vital part of the nation's effort to fight international terrorism."
In 1996, Congress expanded the anti-terrorism law, imposing a prison term of up to 15years for providing "training" or "expert advice or assistance" to a designated international terrorist group. The ban on supporting terrorists forbids sending not only money, weapons and fighters, but also charitable funds. Government lawyers say it even forbids filing a legal brief or writing an op-ed essay on behalf of a designated terrorist group.
Next week the Supreme Court will consider one of the most consequential cases to arise from the “global war on terrorism.”
The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.
The Supreme Court case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.” It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list. The hearing is scheduled for Tuesday (March 23).
The plaintiffs, represented by the Center for Constitutional Rights (CCR), a legal advocacy group, charges that the law goes too far in criminalizing speech, including prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” The law currently deems it a crime speak within these issues, even if the speech is totally peaceful and nonviolent.
Lower courts have ruled several provisions of the statute “unconstitutionally vague” because they involve free speech and leave citizens to speculate about their meaning.
David Cole, a professor at the Georgetown University Law Center, who is a CCR Cooperating Attorney on this case, says, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision, of which the administration is seeking review, is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
The material-support ban, which imposes heavy criminal penalties on those who violate it, has been used by the government in dozens of cases. More than 150 defendants have been charged under the statute since 2001.There have been approximately 75 convictions.
Before the high court, Cole will be representing the Humanitarian Law Project (HLP) and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization.
"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."
The U.S. Government’s Solicitor General, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."
The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.
Attorney Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he said, adding:
“With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence,” he said.
The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey. He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.
Over the years, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the U.S. 9th Circuit Court of Appeals declared parts of the anti-terrorism law vague and unconstitutional. However, the Obama administration appealed to the Supreme Court, arguing that these rulings undercut "a vital part of the nation's effort to fight international terrorism."
In 1996, Congress expanded the anti-terrorism law, imposing a prison term of up to 15years for providing "training" or "expert advice or assistance" to a designated international terrorist group. The ban on supporting terrorists forbids sending not only money, weapons and fighters, but also charitable funds. Government lawyers say it even forbids filing a legal brief or writing an op-ed essay on behalf of a designated terrorist group.
Monday, February 15, 2010
Court: Name the Lobbyists!
By William Fisher
Despite President Barack Obama’s pledge in the State of the Union address, to “require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress,” the Electronic Frontier Foundation (EFF) says the Obama Administration has been “fighting hard to stop the release of the names of these representatives.”
“While it's great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the Administration must do more than give speeches in order to fulfill its commitment to transparency,” EFF urged.
It said President Obama “must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
For the past few years, the not-for-profit EFF has been litigating a Freedom of Information Act (FOIA) case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity.
“With the help of lobbyists from AT&T, Verizon, and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program,” EFF contends.
The group says the Administration “must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
Prof. Peter Shane of the Ohio State University’s law school is among many legal experts who agree with the EFF position. He told IPS, “On his first full day in office, President Obama issued a presidential memorandum that declared: ‘The presumption of disclosure should be applied to all decisions involving FOIA.’ Pursuant to the Obama directive, Attorney General Holder two months later issued a new Justice Department FOIA policy that declared: ‘The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or
(2) disclosure is prohibited by law.’ It's hard to see why the straightforward application of these principles would not lead to releasing the names of lobbyists.”
Last week, a federal appeals court in San Francisco agreed with EFF, Prof. Shane, and other advocates for transparency. The judges rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans.
The court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."
EFF has been seeking records detailing the telecoms' campaign for retroactive legal immunity under FOIA. Telecom immunity was enacted as part of the FISA Amendments Act of 2008. Then-Senator Obama voted in favor of immunity.
EFF called the ruling “an important one for government and corporate accountability." EFF Staff Attorney Marcia Hofmann said, "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."
But a number of legal authorities believe there is an even broader issue at play: The Obama administration’s continuance of its predecessor’s court positions, including its view on this case. For example, Francis Boyle, a professor at the University of Illinois law school, told IPS, “U.S. Solicitor General Elena Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court.”
He called Kagan ‘a closet Neo-Conservative,” adding, “She has supported at all levels of litigation in U.S. Federal Courts up to and including the US Supreme Court every hideous atrocity that the Bush administration inflicted upon the United States Constitution, our Bill of Rights, Civil Rights, Civil Liberties and Human Rights for the eight years of that benighted administration.”
Another civil liberties leader, Chip Pitts, president of the Bill of Rights Defense Committee, also weighed in. He told IPS, “Like President Obama’s reversals and actions against accountability in other areas – including his support of the Patriot Act, FISA Amendments Act, telecom immunity, and his failure to prosecute Bush officials and release the photos that evidence torture – the president’s continuing to invoke national security and the state secret privilege to shield lobbyists’ actions emboldens the burgeoning military/industrial/surveillance complex while diminishing hopes for real change.”
He stressed that “It’s vital to see where the true equities are here: greater transparency from government and corporations can and should exist in harmony and not in tension with better governance and greater individual privacy, liberty, and freedom from infringements by powerful actors. Unwarranted ‘privacy’ claims by those special interests should not be used as an excuse to block the public’s legitimate right to know how decisions affecting fundamental rights are made.”
The appeals court sent part of the case back to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.
After the decision was announced, EFF Attorney Kevin Bankston noted that “Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin.”
EFF Legal Director Cindy Cohn similarly pointed out what she called the Obama Administration's hypocrisy. “Considering that Obama "campaigned for a return to the rule of law, it's disappointing...to have them turn around and say that courts can't even look at these cases."
EFF’s Bankston also finds the government's position “in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June, 2008, now Attorney General Holder said in a speech that: ‘Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . These steps were wrong when they were initiated and they are wrong today.’
Similarly, he says, “The Obama-Biden campaign website includes state secrets as part of ‘The Problem’ that President Obama would address, complaining that the Bush Administration invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Legislative efforts to reform the use of the state secrets privilege are now moving slowly through the Congress.
Despite President Barack Obama’s pledge in the State of the Union address, to “require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress,” the Electronic Frontier Foundation (EFF) says the Obama Administration has been “fighting hard to stop the release of the names of these representatives.”
“While it's great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the Administration must do more than give speeches in order to fulfill its commitment to transparency,” EFF urged.
It said President Obama “must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
For the past few years, the not-for-profit EFF has been litigating a Freedom of Information Act (FOIA) case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity.
“With the help of lobbyists from AT&T, Verizon, and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program,” EFF contends.
The group says the Administration “must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
Prof. Peter Shane of the Ohio State University’s law school is among many legal experts who agree with the EFF position. He told IPS, “On his first full day in office, President Obama issued a presidential memorandum that declared: ‘The presumption of disclosure should be applied to all decisions involving FOIA.’ Pursuant to the Obama directive, Attorney General Holder two months later issued a new Justice Department FOIA policy that declared: ‘The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or
(2) disclosure is prohibited by law.’ It's hard to see why the straightforward application of these principles would not lead to releasing the names of lobbyists.”
Last week, a federal appeals court in San Francisco agreed with EFF, Prof. Shane, and other advocates for transparency. The judges rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans.
The court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."
EFF has been seeking records detailing the telecoms' campaign for retroactive legal immunity under FOIA. Telecom immunity was enacted as part of the FISA Amendments Act of 2008. Then-Senator Obama voted in favor of immunity.
EFF called the ruling “an important one for government and corporate accountability." EFF Staff Attorney Marcia Hofmann said, "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."
But a number of legal authorities believe there is an even broader issue at play: The Obama administration’s continuance of its predecessor’s court positions, including its view on this case. For example, Francis Boyle, a professor at the University of Illinois law school, told IPS, “U.S. Solicitor General Elena Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court.”
He called Kagan ‘a closet Neo-Conservative,” adding, “She has supported at all levels of litigation in U.S. Federal Courts up to and including the US Supreme Court every hideous atrocity that the Bush administration inflicted upon the United States Constitution, our Bill of Rights, Civil Rights, Civil Liberties and Human Rights for the eight years of that benighted administration.”
Another civil liberties leader, Chip Pitts, president of the Bill of Rights Defense Committee, also weighed in. He told IPS, “Like President Obama’s reversals and actions against accountability in other areas – including his support of the Patriot Act, FISA Amendments Act, telecom immunity, and his failure to prosecute Bush officials and release the photos that evidence torture – the president’s continuing to invoke national security and the state secret privilege to shield lobbyists’ actions emboldens the burgeoning military/industrial/surveillance complex while diminishing hopes for real change.”
He stressed that “It’s vital to see where the true equities are here: greater transparency from government and corporations can and should exist in harmony and not in tension with better governance and greater individual privacy, liberty, and freedom from infringements by powerful actors. Unwarranted ‘privacy’ claims by those special interests should not be used as an excuse to block the public’s legitimate right to know how decisions affecting fundamental rights are made.”
The appeals court sent part of the case back to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.
After the decision was announced, EFF Attorney Kevin Bankston noted that “Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin.”
EFF Legal Director Cindy Cohn similarly pointed out what she called the Obama Administration's hypocrisy. “Considering that Obama "campaigned for a return to the rule of law, it's disappointing...to have them turn around and say that courts can't even look at these cases."
EFF’s Bankston also finds the government's position “in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June, 2008, now Attorney General Holder said in a speech that: ‘Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . These steps were wrong when they were initiated and they are wrong today.’
Similarly, he says, “The Obama-Biden campaign website includes state secrets as part of ‘The Problem’ that President Obama would address, complaining that the Bush Administration invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Legislative efforts to reform the use of the state secrets privilege are now moving slowly through the Congress.
Saturday, February 13, 2010
ABA: Deportation System “Severely Flawed”
By William Fisher
The number of people deported from the U.S. annually has grown from just over 69,000 to over 356,000 in the past eight years, while resource-starved immigration judges issue decisions without sufficient time to conduct legal research and analyze complex legal and factual issues.
This is among the key findings of a new comprehensive review of the current deportation process by the American Bar Association’s Commission on Immigration and one of America’s leading law firms.
The study concludes that the removal (deportation) system “is severely flawed and fails to afford fair process to all non-citizens facing deportation from the United States.”
The study details many of the deficiencies in the current system and advocates for systemic reform.
It says, “There is strong evidence that (legal) representation affects the outcome of immigration proceedings.” But in 2008, it continues, 57 per cent of people in removal proceedings were not represented. Of those in detention, 84 per cent were forced to proceed without lawyers.
“Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a non-citizen’s ability to retain counsel and maintain an attorney-client relationship.”
The study, carried out in cooperation with the law firm of Arnold and Porter, finds “stark disparities” between the rates of asylum grants among immigration judges and, as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Among other findings:
The “tremendous increase” in deportations “has not been met with commensurate resources.”
Immigration judges completed on average 1,243 cases per year. (In comparison, Veterans Law Judges decide about 729 cases per year (of which only 178 involve hearings) and Social Security Administration administrative law judges decide about 544 cases per year.)
Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues.
There are “stark disparities” in the rates of asylum grants among immigration judges and as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers.
Most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. The rate at which non-citizens are appealing Board decisions to the federal courts has increased from 9.4 per cent in 2002 to 26.7 per cent in 2008. In 2008, non-citizens filed more than 10,000 federal court appeals of Board decisions.
The absence of counsel, the overwhelming dockets, the lack of adequately
explained and reasoned decisions, and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system, the study declares.
Beth Werlin, Litigation Clearinghouse Attorney at the American Immigration Council’s Legal Action Center, writes, “These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.”
She concludes, “As Congress takes on immigration reform this year, it should be mindful of those whom the current removal system is failing. Given the gravity of removal — which can range from permanent separation from family in the U.S. to being returned to a country where a person fears for his life — we must demand that the process is meaningful, fair and leads to just results.”
At the same time, a study by The Transactional Records Access Clearinghouse (TRAC) at Syracuse University concluded that the announced goal of a broad Justice Department project to improve the performance of the Immigration Courts — started during the Bush Administration but now a continuing challenge for President Obama — “has failed to achieve many of its ambitious purposes.”
This mixed verdict is based on the actual improvements so far realized in the operations of the immigration court system after a three-year Justice Department effort.
The TRAC study found that the annual number of deportation cases brought in the nation's federal courts more than quadrupled during the eight years of the Bush administration. It reported that the September 2008 total of 11,454 immigration prosecutions represented an increase of over seven hundred percent from the same month seven years earlier, September 2001).
The study reported that in fiscal year 2008, Department of Homeland Security (DHS) officers apprehended at least 791,568 deportable non-citizens; initiated 291,217 removal proceedings in the immigration courts against non-citizens; detained 378,582 non-citizens; and effected the deportation of 358,886 non-citizens.
The study says, “Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department. But beginning in 2002, a change in EOIR (Executive Office for Immigration Review) court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country.”
It notes that Ashcroft's successor, Attorney General Alberto Gonzales, then ordered the Justice Department to undertake a special study of the EOIR.
In August of 2006 Gonzales, acting upon the findings of this internal study and the first in a series of studies documenting inexplicable disparities in how asylum cases were being decided, ordered the Justice Department to launch a corrective effort he said was necessary "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals.
Gonzales' directive listed 22 specific measures. In March 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.
The TRAC study says the Justice Department’s Executive Office for Immigration Review (EOIR), “has fallen far short of hiring the additional judges that the Justice Department had initially said were required; continues to hire judges without immigration law experience while available evidence indicates that comprehensive training in this complex legal area is not provided; has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges; has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges; and has not worked out procedures to provide the judges the sanction authority they need to control their courtrooms.”
As in recent years, the TRAC study fund that the five federal districts with the largest proportion of immigration prosecutions in FY 2008 were strung out along the border with Mexico. In Texas South (Houston), Arizona (Phoenix), New Mexico (Albuquerque), Texas West (San Antonio) and California South (San Diego), for example, immigration matters made up 73.7 per cent or more of all those charged with a federal crime.
The number of people deported from the U.S. annually has grown from just over 69,000 to over 356,000 in the past eight years, while resource-starved immigration judges issue decisions without sufficient time to conduct legal research and analyze complex legal and factual issues.
This is among the key findings of a new comprehensive review of the current deportation process by the American Bar Association’s Commission on Immigration and one of America’s leading law firms.
The study concludes that the removal (deportation) system “is severely flawed and fails to afford fair process to all non-citizens facing deportation from the United States.”
The study details many of the deficiencies in the current system and advocates for systemic reform.
It says, “There is strong evidence that (legal) representation affects the outcome of immigration proceedings.” But in 2008, it continues, 57 per cent of people in removal proceedings were not represented. Of those in detention, 84 per cent were forced to proceed without lawyers.
“Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a non-citizen’s ability to retain counsel and maintain an attorney-client relationship.”
The study, carried out in cooperation with the law firm of Arnold and Porter, finds “stark disparities” between the rates of asylum grants among immigration judges and, as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Among other findings:
The “tremendous increase” in deportations “has not been met with commensurate resources.”
Immigration judges completed on average 1,243 cases per year. (In comparison, Veterans Law Judges decide about 729 cases per year (of which only 178 involve hearings) and Social Security Administration administrative law judges decide about 544 cases per year.)
Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues.
There are “stark disparities” in the rates of asylum grants among immigration judges and as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers.
Most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. The rate at which non-citizens are appealing Board decisions to the federal courts has increased from 9.4 per cent in 2002 to 26.7 per cent in 2008. In 2008, non-citizens filed more than 10,000 federal court appeals of Board decisions.
The absence of counsel, the overwhelming dockets, the lack of adequately
explained and reasoned decisions, and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system, the study declares.
Beth Werlin, Litigation Clearinghouse Attorney at the American Immigration Council’s Legal Action Center, writes, “These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.”
She concludes, “As Congress takes on immigration reform this year, it should be mindful of those whom the current removal system is failing. Given the gravity of removal — which can range from permanent separation from family in the U.S. to being returned to a country where a person fears for his life — we must demand that the process is meaningful, fair and leads to just results.”
At the same time, a study by The Transactional Records Access Clearinghouse (TRAC) at Syracuse University concluded that the announced goal of a broad Justice Department project to improve the performance of the Immigration Courts — started during the Bush Administration but now a continuing challenge for President Obama — “has failed to achieve many of its ambitious purposes.”
This mixed verdict is based on the actual improvements so far realized in the operations of the immigration court system after a three-year Justice Department effort.
The TRAC study found that the annual number of deportation cases brought in the nation's federal courts more than quadrupled during the eight years of the Bush administration. It reported that the September 2008 total of 11,454 immigration prosecutions represented an increase of over seven hundred percent from the same month seven years earlier, September 2001).
The study reported that in fiscal year 2008, Department of Homeland Security (DHS) officers apprehended at least 791,568 deportable non-citizens; initiated 291,217 removal proceedings in the immigration courts against non-citizens; detained 378,582 non-citizens; and effected the deportation of 358,886 non-citizens.
The study says, “Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department. But beginning in 2002, a change in EOIR (Executive Office for Immigration Review) court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country.”
It notes that Ashcroft's successor, Attorney General Alberto Gonzales, then ordered the Justice Department to undertake a special study of the EOIR.
In August of 2006 Gonzales, acting upon the findings of this internal study and the first in a series of studies documenting inexplicable disparities in how asylum cases were being decided, ordered the Justice Department to launch a corrective effort he said was necessary "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals.
Gonzales' directive listed 22 specific measures. In March 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.
The TRAC study says the Justice Department’s Executive Office for Immigration Review (EOIR), “has fallen far short of hiring the additional judges that the Justice Department had initially said were required; continues to hire judges without immigration law experience while available evidence indicates that comprehensive training in this complex legal area is not provided; has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges; has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges; and has not worked out procedures to provide the judges the sanction authority they need to control their courtrooms.”
As in recent years, the TRAC study fund that the five federal districts with the largest proportion of immigration prosecutions in FY 2008 were strung out along the border with Mexico. In Texas South (Houston), Arizona (Phoenix), New Mexico (Albuquerque), Texas West (San Antonio) and California South (San Diego), for example, immigration matters made up 73.7 per cent or more of all those charged with a federal crime.
Repairing the Third Rail
Last in a series
By William Fisher
As Haitians struggle to comprehend what has happened to their lives – and begin to try to put them back together – the United Nations is reaching out to “a vast and influential network.” The Boston Globe reports that this is Haiti’s network of about 60,000 voodoo priests, “firmly entrenched in their displaced communities, and eager to lend a hand.”
To the outside world, it reports, “Their faith has long been shrouded in mystery,” says the Globe. “But in post-quake Haiti, the practitioners of voodoo have taken on a more practical role, enlisted by the government to help count the dead, tend to the injured, and soothe the psychologically damaged,” the newspaper writes.
But while the UN may find the priests useful, development experts – who already have made copious recommendations for Haiti’s reconstruction – appear to be looking to other kinds of resources.
For example, two veterans of aid to Haiti, Robert Mcguire and Robert Muggah, have proposed a 700,000-strong national civic service corps to energize the reconstruction effort. They say it could harness untapped labor rapidly and instill national pride and confidence.
“A civic service corps would get the young and able out of the tent cities in and around Port-au-Prince and into work. They could start with the once-iconic center of the capital, but also could begin planting trees, working the fields and providing services in Haiti's countryside. At a minimum, this would reverse generations of unfair stigmatizing of the youth there,” they write.
Creation of such a group “would be a symbolic first step toward renewing the social contract with the people,” they say.
Muggah, based at the Graduate Institute of International and Development Studies in Geneva, is a principal of the SecDev Group and is currently advising multilateral and bilateral organizations on Haiti's recovery. Maguire is on the faculty of Trinity Washington University and chairs the Haiti Working Group of the United States Institute of Peace in Washington.
Another expert, Mark L. Schneider, Peace Corps director in the Administration of President Bill Clinton, has been weighing in on Haiti, focusing on restoring and improving education.
He says, “Let's take the Ministry of Education: What you need to do now is not just put back the same bricks. You need to build a new education policy in Haiti. Some forty percent of the kids weren't in school before the earthquake. And eighty percent of those who were in school were in private schools where they had to pay and those schools weren't very good. There's very little public education. You need to have a commitment to a public school education system that offers a decent education to the kids in Haiti. That needs to be built. So you need to have education experts from around the world come and partner with the new Ministry of Education in Haiti.”
The January 17 New York Times featured the views of a number of authorities on various aspects of reconstruction and governance.
John McAslan, an architect, says “the urge to rebuild rapidly should be tempered by a thorough examination of new designs for safer, more energy-efficient and less expensive structures.”
Robert Neuwirth, author of “Shadow Cities: A Billion Squatters, a New Urban World,” notes that there are about a billion squatters in the world today. He suggests, “Rather than being put in refugee camps, people can seize the initiative and squat in their old communities, without aid groups clamping down on them…These nascent communities — self-organized and temporary at first — can serve as the building blocks of new neighborhoods.”
James Dobbins is former special envoy to Haiti under President Bill Clinton and director of the International Security and Defense Policy Center at the RAND Corporation. He says that while Haiti’s institutions will need rebuilding, “These institutions should not be rebuilt on the old inefficient and corrupt foundations. This disaster is an opportunity to accelerate oft-delayed reforms in each of these sectors.”
He cites the uncompetitive costs at the port of Port-au-Prince and the need to link breaking up or at least reorganizing the government-controlled telephone monopoly to fundamental management reforms.
Steven Solomon, author of “Water: The Epic Struggle for Wealth, Power and Civilization,” notes that today only two percent of Haiti’s forest cover remains. “During storms, water rushes off barren hillsides, causing deadly mudslides, clogging streams with soil and sewage and disappearing before it can replenish Haiti’s diminishing groundwater reserves. As a result, nearly half of all Haitians lack satisfactory access to clean drinking water, and more than two-thirds live without adequate sanitation. Water poverty is the main reason for Haiti’s abysmal illness and early mortality rates,” he says.
He adds, “The network of water and sewer pipes should be built with flexible materials that can be shallowly buried and easily repaired.”
Jonathan M. Hansen, who is writing a book on the history of Guantanamo Bay, Cuba, suggests that this iconic base could play a role in Haiti’s rebirth as a field hospital, a refugee camp or a depot for the distribution of food, medicine, clothing and other emergency supplies.
It is clear that Haiti will not want for development ideas as it charts its future course. However, development professionals emphasize the centrality of coordination, accountability, a long-term team approach, and far more involvement than has been evident in the past from the Haitian people and Haitian consultants. They also underscore the need to depoliticize aid and end the start-stop-start work patterns that have characterized past aid efforts.
But Prof. Maguire told IPS that the history of aid to Haiti has been a toxic combination of corruption among the government and business elites of the country, a politically-driven agenda of the U.S., and the selfish interests of private sector international investors who “wanted to maintain the status quo” and who viewed Haiti only as “a low-wage and stable dictatorship” able to manufacture basic garments and other textile products.
In a 2003 report, “US Policy Toward Haiti: Engagement or Estrangement?” Maguire noted that “Great attention was paid to Haiti in the period leading up to and following the demise of the Duvalier family dictatorship in 1986, and then again in the period following the 1990 presidential election of Jean-Bertrand Aristide, his subsequent removal from office in 1991 as a result of a violent military coup d’etat, and his later restoration to office as a result of a UN-sanctioned and US-led military intervention.”
He noted that Haiti’s geographical proximity, a variety of developments there linked to ongoing U.S. policy interests, and the presence in the U.S. of a large and growing Haitian-born and Haitian-American population, have combined to make this poverty-ridden Caribbean country one of the third rails of American politics.
As much as US officials and policy makers at times may have wanted Haiti to ‘just go away,’ he wrote prophetically, “This will not happen short of a highly improbable geological episode that will either physically displace, or submerge, the island that Haiti shares with the Dominican Republic! “
Haiti is not quite displaced or submerged. But it is broken, which means the UN, the US and international donors will have to decide how much energy they are prepared to devote to mending it.
By William Fisher
As Haitians struggle to comprehend what has happened to their lives – and begin to try to put them back together – the United Nations is reaching out to “a vast and influential network.” The Boston Globe reports that this is Haiti’s network of about 60,000 voodoo priests, “firmly entrenched in their displaced communities, and eager to lend a hand.”
To the outside world, it reports, “Their faith has long been shrouded in mystery,” says the Globe. “But in post-quake Haiti, the practitioners of voodoo have taken on a more practical role, enlisted by the government to help count the dead, tend to the injured, and soothe the psychologically damaged,” the newspaper writes.
But while the UN may find the priests useful, development experts – who already have made copious recommendations for Haiti’s reconstruction – appear to be looking to other kinds of resources.
For example, two veterans of aid to Haiti, Robert Mcguire and Robert Muggah, have proposed a 700,000-strong national civic service corps to energize the reconstruction effort. They say it could harness untapped labor rapidly and instill national pride and confidence.
“A civic service corps would get the young and able out of the tent cities in and around Port-au-Prince and into work. They could start with the once-iconic center of the capital, but also could begin planting trees, working the fields and providing services in Haiti's countryside. At a minimum, this would reverse generations of unfair stigmatizing of the youth there,” they write.
Creation of such a group “would be a symbolic first step toward renewing the social contract with the people,” they say.
Muggah, based at the Graduate Institute of International and Development Studies in Geneva, is a principal of the SecDev Group and is currently advising multilateral and bilateral organizations on Haiti's recovery. Maguire is on the faculty of Trinity Washington University and chairs the Haiti Working Group of the United States Institute of Peace in Washington.
Another expert, Mark L. Schneider, Peace Corps director in the Administration of President Bill Clinton, has been weighing in on Haiti, focusing on restoring and improving education.
He says, “Let's take the Ministry of Education: What you need to do now is not just put back the same bricks. You need to build a new education policy in Haiti. Some forty percent of the kids weren't in school before the earthquake. And eighty percent of those who were in school were in private schools where they had to pay and those schools weren't very good. There's very little public education. You need to have a commitment to a public school education system that offers a decent education to the kids in Haiti. That needs to be built. So you need to have education experts from around the world come and partner with the new Ministry of Education in Haiti.”
The January 17 New York Times featured the views of a number of authorities on various aspects of reconstruction and governance.
John McAslan, an architect, says “the urge to rebuild rapidly should be tempered by a thorough examination of new designs for safer, more energy-efficient and less expensive structures.”
Robert Neuwirth, author of “Shadow Cities: A Billion Squatters, a New Urban World,” notes that there are about a billion squatters in the world today. He suggests, “Rather than being put in refugee camps, people can seize the initiative and squat in their old communities, without aid groups clamping down on them…These nascent communities — self-organized and temporary at first — can serve as the building blocks of new neighborhoods.”
James Dobbins is former special envoy to Haiti under President Bill Clinton and director of the International Security and Defense Policy Center at the RAND Corporation. He says that while Haiti’s institutions will need rebuilding, “These institutions should not be rebuilt on the old inefficient and corrupt foundations. This disaster is an opportunity to accelerate oft-delayed reforms in each of these sectors.”
He cites the uncompetitive costs at the port of Port-au-Prince and the need to link breaking up or at least reorganizing the government-controlled telephone monopoly to fundamental management reforms.
Steven Solomon, author of “Water: The Epic Struggle for Wealth, Power and Civilization,” notes that today only two percent of Haiti’s forest cover remains. “During storms, water rushes off barren hillsides, causing deadly mudslides, clogging streams with soil and sewage and disappearing before it can replenish Haiti’s diminishing groundwater reserves. As a result, nearly half of all Haitians lack satisfactory access to clean drinking water, and more than two-thirds live without adequate sanitation. Water poverty is the main reason for Haiti’s abysmal illness and early mortality rates,” he says.
He adds, “The network of water and sewer pipes should be built with flexible materials that can be shallowly buried and easily repaired.”
Jonathan M. Hansen, who is writing a book on the history of Guantanamo Bay, Cuba, suggests that this iconic base could play a role in Haiti’s rebirth as a field hospital, a refugee camp or a depot for the distribution of food, medicine, clothing and other emergency supplies.
It is clear that Haiti will not want for development ideas as it charts its future course. However, development professionals emphasize the centrality of coordination, accountability, a long-term team approach, and far more involvement than has been evident in the past from the Haitian people and Haitian consultants. They also underscore the need to depoliticize aid and end the start-stop-start work patterns that have characterized past aid efforts.
But Prof. Maguire told IPS that the history of aid to Haiti has been a toxic combination of corruption among the government and business elites of the country, a politically-driven agenda of the U.S., and the selfish interests of private sector international investors who “wanted to maintain the status quo” and who viewed Haiti only as “a low-wage and stable dictatorship” able to manufacture basic garments and other textile products.
In a 2003 report, “US Policy Toward Haiti: Engagement or Estrangement?” Maguire noted that “Great attention was paid to Haiti in the period leading up to and following the demise of the Duvalier family dictatorship in 1986, and then again in the period following the 1990 presidential election of Jean-Bertrand Aristide, his subsequent removal from office in 1991 as a result of a violent military coup d’etat, and his later restoration to office as a result of a UN-sanctioned and US-led military intervention.”
He noted that Haiti’s geographical proximity, a variety of developments there linked to ongoing U.S. policy interests, and the presence in the U.S. of a large and growing Haitian-born and Haitian-American population, have combined to make this poverty-ridden Caribbean country one of the third rails of American politics.
As much as US officials and policy makers at times may have wanted Haiti to ‘just go away,’ he wrote prophetically, “This will not happen short of a highly improbable geological episode that will either physically displace, or submerge, the island that Haiti shares with the Dominican Republic! “
Haiti is not quite displaced or submerged. But it is broken, which means the UN, the US and international donors will have to decide how much energy they are prepared to devote to mending it.
The Failure of Aid
Second in a series.
By William Fisher
The sick, injured and stressed people of Port au Prince are unlikely to be impressed by the small army of reconstruction contractors and development experts who are preparing to descend on Haiti. The reason? They’ve seen it all before.
Over the years, the poorest country in the Western Hemisphere has seen billions of dollars in aid appear – and disappear. They have witnessed aid programs characterized by start-stop-start, shaped largely by American political ideologies. And they have seen the corrupt rulers of the country amass fortunes while ordinary people existed on one or two dollars a day.
The Duvalier family ruled Haiti from 1957 to 1986. Francois "Papa Doc" Duvalier was elected by the largest majority in Haitian history. Once in power, he became a dictator, creating a violent military police force known as the Tonton Macoutes. Papa Doc's son, Jean-Claude "Baby Doc" Duvalier followed his father into power. In 1986, the Haitian people revolted and Baby Doc fled to France with millions of dollars stolen from the Haitian treasury.
Jubilee USA, a network calling for elimination of debt owed by poor countries, estimates that Baby Doc alone diverted at least $500 million in public funds to his private accounts, and that 45 percent of Haiti’s debt in recent decades was accumulated during the corrupt Duvalier reign.
"Since 1804 Haiti has had 30 coups and 20 constitutions," says Robert Muggah, research director of the Geneva-based Small Arms Survey.
So it is not surprising that ordinary Haitians would be cynical about the prospects of post-earthquake aid being substantially different from the past. Most experts say the country’s history as an aid recipient has made it a poster child for how not to administer development assistance.
A 2006 report by the US National Academy of Public Administration, “Why Foreign Aid to Haiti Failed,” outlines the shortcomings of development assistance to Haiti over the long term. Despite an estimated nine billion dollars in aid over the years, Haiti remains near the bottom of global poverty and development indexes. It ranks in 146th place in the most recent UN Human Development Report, for example.
Haiti has also been adversely affected by a brain-drain. The educated usually emigrate, and then support families at home through remittances, which are estimated to total $1.5 billion to $1.8 billion annually. But even many of the uneducated have prospered in the Haitian Diaspora, revealing what many observers describe as their natural strong will to survive.
According to ISN Security Watch, remittances have more of an impact because the funds go directly to poor Haitians, while much development aid goes through corrupt officialdom. ISN is a project of the Center for Security Studies (CSS) at the Swiss Federal Institute of Technology (ETH Zurich).
What role will development assistance play in post-earthquake Haiti? To understand where development in Haiti needs to go, it’s important to know where it’s been.
The U.S. Agency for International Development (USAID) has generally been the lead organization for development aid to Haiti. Insights into how successful it has been can be found in a September 2000 report by Jess T. Ford, then a senior State Department official.
Assessing the impact of U.S. aid on Haiti’s justice system, Ford wrote, “Over the last six fiscal years, the United States provided about $97 million in assistance to help Haiti establish its first civilian-controlled police force and improve aspects of its judicial sector, which includes various judicial institutions, procedures, and legal codes.”
He reported that, despite some modest achievements, “the police force has not effectively carried out its basic law enforcement responsibilities, and recent events suggest that politicization has compromised the force, according to U.S. and other donor officials. The judicial sector also has serious weaknesses, according to U.S. and other donor officials. The sector has not undergone a major reform and, as a result, lacks independence from the executive branch and has outdated legal codes and cumbersome judicial proceedings. Further, the judicial institutions have personnel shortages; inadequate infrastructure and equipment, such as shortages of vehicles and legal texts; and an ineffective internal oversight organization unable to stem corruption.”
Overall, Ford wrote, these institutions provide justice services to only a small segment of the population, because the institutions rely heavily in judicial proceedings on the use of French rather than Creole -- the language of the majority of the population, he said.
The key factor affecting the lack of success of U.S. assistance has been the Haitian government’s lack of commitment to addressing the major problems of its police and judicial institutions, he said.
Fast-forward to 2005, a critically important USAID year, coming on the heels of a 2004 Haitian rebellion. That coup d'etat happened after conflicts that occurred for several weeks in Haiti during February 2004. It resulted in the premature end of President Jean-Bertrand Aristide's second term. He left Haiti on a U.S. plane accompanied by U.S. military/security personnel, and it is still unclear whether the U.S. forced him to leave.
USAID’s objectives that year included decreasing narcotics trafficking, strengthening democracy, providing humanitarian assistance, stemming the flow of illegal migrants, fighting HIV/AIDS, generating employment, and strengthening civil society’s ability to resist authoritarianism.
The agency’s development menu contained support to the interim government in efforts to stabilize the country in preparation for local, parliamentary and presidential elections later that year, and USAID efforts encourage creation of jobs, support institutions, offer health, education and humanitarian assistance and respond to hurricanes and similar natural disasters.
There were programs for peace and security; governing justly and democratically; supporting Haiti’s social development, access to basic health services and HIV/AIDS prevention; distance-based education; response to the food riots and hurricanes; school feeding programs; and provision of emergency food and shelter in response to increasing food insecurity and hurricanes. Total USAID expenditure for 2005 was approximately $51 million.
But even Haiti’s most generous friends would acknowledge that the country has little to show for that year’s – or arguably any year’s – international aid.
In fact, many experts contend that some aid has done more harm than good. For example, loans from the World Bank, the International Monetary Fund (IMF) and the Inter-American Development Bank (IDB) imposed “structural adjustment” conditions on Haiti, opening its economy to cheap U.S. agricultural products.
Farmers, unable to compete, stopped growing rice and moved to the cities to earn low wages, if they were lucky enough to get one of the scarce sweatshop jobs. People in the highlands were driven to deforest the hills, converting wood into salable charcoal, which created an ecological crisis -- destabilizing hillsides, increasing the destructiveness of earthquakes and causing landslides during the rainy season.
A frequently asked question is whether the impact of aid will be different during the post earthquake period, and whether President René Préval is up to the task of managing the huge resources destined to flow into his country in the coming months.
"Préval is the legitimately elected president of Haiti, and the obligation of the international community is to assist him and Prime Minister (Jean-Max Bellerive) in fulfilling their leadership role," says Mark Schneider of the International Crisis Group.
But the current government has no shortage of critics. "I can think of no country in the world that would have so pathetically handled the post-earthquake situation," says Larry Birns, director of the Washington-based Council on Hemispheric Affairs. "It's a caricature of what a government is supposed to be.”
The final installment of this series will explore approaches to more effective aid to Haiti.
By William Fisher
The sick, injured and stressed people of Port au Prince are unlikely to be impressed by the small army of reconstruction contractors and development experts who are preparing to descend on Haiti. The reason? They’ve seen it all before.
Over the years, the poorest country in the Western Hemisphere has seen billions of dollars in aid appear – and disappear. They have witnessed aid programs characterized by start-stop-start, shaped largely by American political ideologies. And they have seen the corrupt rulers of the country amass fortunes while ordinary people existed on one or two dollars a day.
The Duvalier family ruled Haiti from 1957 to 1986. Francois "Papa Doc" Duvalier was elected by the largest majority in Haitian history. Once in power, he became a dictator, creating a violent military police force known as the Tonton Macoutes. Papa Doc's son, Jean-Claude "Baby Doc" Duvalier followed his father into power. In 1986, the Haitian people revolted and Baby Doc fled to France with millions of dollars stolen from the Haitian treasury.
Jubilee USA, a network calling for elimination of debt owed by poor countries, estimates that Baby Doc alone diverted at least $500 million in public funds to his private accounts, and that 45 percent of Haiti’s debt in recent decades was accumulated during the corrupt Duvalier reign.
"Since 1804 Haiti has had 30 coups and 20 constitutions," says Robert Muggah, research director of the Geneva-based Small Arms Survey.
So it is not surprising that ordinary Haitians would be cynical about the prospects of post-earthquake aid being substantially different from the past. Most experts say the country’s history as an aid recipient has made it a poster child for how not to administer development assistance.
A 2006 report by the US National Academy of Public Administration, “Why Foreign Aid to Haiti Failed,” outlines the shortcomings of development assistance to Haiti over the long term. Despite an estimated nine billion dollars in aid over the years, Haiti remains near the bottom of global poverty and development indexes. It ranks in 146th place in the most recent UN Human Development Report, for example.
Haiti has also been adversely affected by a brain-drain. The educated usually emigrate, and then support families at home through remittances, which are estimated to total $1.5 billion to $1.8 billion annually. But even many of the uneducated have prospered in the Haitian Diaspora, revealing what many observers describe as their natural strong will to survive.
According to ISN Security Watch, remittances have more of an impact because the funds go directly to poor Haitians, while much development aid goes through corrupt officialdom. ISN is a project of the Center for Security Studies (CSS) at the Swiss Federal Institute of Technology (ETH Zurich).
What role will development assistance play in post-earthquake Haiti? To understand where development in Haiti needs to go, it’s important to know where it’s been.
The U.S. Agency for International Development (USAID) has generally been the lead organization for development aid to Haiti. Insights into how successful it has been can be found in a September 2000 report by Jess T. Ford, then a senior State Department official.
Assessing the impact of U.S. aid on Haiti’s justice system, Ford wrote, “Over the last six fiscal years, the United States provided about $97 million in assistance to help Haiti establish its first civilian-controlled police force and improve aspects of its judicial sector, which includes various judicial institutions, procedures, and legal codes.”
He reported that, despite some modest achievements, “the police force has not effectively carried out its basic law enforcement responsibilities, and recent events suggest that politicization has compromised the force, according to U.S. and other donor officials. The judicial sector also has serious weaknesses, according to U.S. and other donor officials. The sector has not undergone a major reform and, as a result, lacks independence from the executive branch and has outdated legal codes and cumbersome judicial proceedings. Further, the judicial institutions have personnel shortages; inadequate infrastructure and equipment, such as shortages of vehicles and legal texts; and an ineffective internal oversight organization unable to stem corruption.”
Overall, Ford wrote, these institutions provide justice services to only a small segment of the population, because the institutions rely heavily in judicial proceedings on the use of French rather than Creole -- the language of the majority of the population, he said.
The key factor affecting the lack of success of U.S. assistance has been the Haitian government’s lack of commitment to addressing the major problems of its police and judicial institutions, he said.
Fast-forward to 2005, a critically important USAID year, coming on the heels of a 2004 Haitian rebellion. That coup d'etat happened after conflicts that occurred for several weeks in Haiti during February 2004. It resulted in the premature end of President Jean-Bertrand Aristide's second term. He left Haiti on a U.S. plane accompanied by U.S. military/security personnel, and it is still unclear whether the U.S. forced him to leave.
USAID’s objectives that year included decreasing narcotics trafficking, strengthening democracy, providing humanitarian assistance, stemming the flow of illegal migrants, fighting HIV/AIDS, generating employment, and strengthening civil society’s ability to resist authoritarianism.
The agency’s development menu contained support to the interim government in efforts to stabilize the country in preparation for local, parliamentary and presidential elections later that year, and USAID efforts encourage creation of jobs, support institutions, offer health, education and humanitarian assistance and respond to hurricanes and similar natural disasters.
There were programs for peace and security; governing justly and democratically; supporting Haiti’s social development, access to basic health services and HIV/AIDS prevention; distance-based education; response to the food riots and hurricanes; school feeding programs; and provision of emergency food and shelter in response to increasing food insecurity and hurricanes. Total USAID expenditure for 2005 was approximately $51 million.
But even Haiti’s most generous friends would acknowledge that the country has little to show for that year’s – or arguably any year’s – international aid.
In fact, many experts contend that some aid has done more harm than good. For example, loans from the World Bank, the International Monetary Fund (IMF) and the Inter-American Development Bank (IDB) imposed “structural adjustment” conditions on Haiti, opening its economy to cheap U.S. agricultural products.
Farmers, unable to compete, stopped growing rice and moved to the cities to earn low wages, if they were lucky enough to get one of the scarce sweatshop jobs. People in the highlands were driven to deforest the hills, converting wood into salable charcoal, which created an ecological crisis -- destabilizing hillsides, increasing the destructiveness of earthquakes and causing landslides during the rainy season.
A frequently asked question is whether the impact of aid will be different during the post earthquake period, and whether President René Préval is up to the task of managing the huge resources destined to flow into his country in the coming months.
"Préval is the legitimately elected president of Haiti, and the obligation of the international community is to assist him and Prime Minister (Jean-Max Bellerive) in fulfilling their leadership role," says Mark Schneider of the International Crisis Group.
But the current government has no shortage of critics. "I can think of no country in the world that would have so pathetically handled the post-earthquake situation," says Larry Birns, director of the Washington-based Council on Hemispheric Affairs. "It's a caricature of what a government is supposed to be.”
The final installment of this series will explore approaches to more effective aid to Haiti.
THE LOAN THAT WASN’T
Part One of a Series
By William Fisher
In Haiti, now close to the one-month mark since the devastating earthquake of January 12, victims continue to perish from a variety of causes, including death by red tape: they fall between the cracks of a still-poorly- uncoordinated aid effort. The physicians working in Haiti call these “the stupid deaths” – by which they mean avoidable.
Yet amidst the chaos and suffering that inevitably accompanies natural disasters, there are people who are beginning to plan for Haiti’s future. And, for many, their optimism is rooted in the miserable performance of international assistance in the past. Against that background, they say, they have nowhere to go but up.
It is an unusual combination of optimism and realism that is driving development experts to try to shed the blemished history of international aid to Haiti, rid the issue of a generation of devastating politicization, and think way outside the conventional development paradigm.
The fate of one particularly important project is emblematic of factors that have consistently and severely reduced the effectiveness – even the existence – of viable development projects.
Eric Michael Johnson of the Department of History at the University of British Columbia, told IPS, “The US role towards Haiti can best be understood as a kind of abusive paternalism, at times condescending and at others domineering depending on how fully Haitian governments obey the patriarch's dictates.”
To illustrate his point, Johnson told IPS what happened after the first coup d'etat and reinstatement of President Bertrand Aristide in late 1994 to a term that ended in 1996. This was followed by five years of René Préval (who is also President today). In 2000 Aristide once again won overwhelmingly in the Haitian elections. Aristede’s second election did not please the new American President, George W. Bush.
Johnson then recounts how the Bush Administration conspired to cut off funds already appropriated for a vital infrastructure and public health project.
An award of $146 million dollars from the Inter-American Development Bank (IDB) had already been approved, but at US insistence was not being disbursed. Some $54 million of this loan was intended for desperately needed water and sanitation projects. Johnson says, “This decision likely resulted in the needless deaths of an untold number of poor Haitians.”
In 2006, the Robert F. Kennedy Center filed a Freedom of Information Act Request to force the US to release documents related to this decision. According to the documents, “there was clear evidence that the United States blocked the loans because they objected to the election of Aristide,” Johnson says.
The IDB approved these loans between 1996 and 1998, and Haiti paid around $10 million in interest even before the loans were dispersed. By 2001 there was no reason for the IDB to continue blocking these loans. But block them they did.
The loans were not disbursed and, on November 8, 2001, the Congressional Black Caucus wrote to President Bush stating that "it is wrong to impose an inflexible policy which conditions US relations and aid, be it loans or grants, entirely on a country's political process" and insisting that "it is imperative that the US remove its blockade of essentially all aid to Haiti, particularly the loans currently held up at the Inter-American Development Bank."
The US – the largest contributor to the IDB -- continued to put roadblocks in the way of disbursement of these loans, even while Haiti was paying interest on the loans it hadn't received. In 2002 Haiti stopped payment.
A study published in the journal “Health and Human Rights” stated: "Public statements by US government officials soon explicitly linked non-disbursement with political concerns. In early 2002, the journal concluded that the IDB did not intend to disburse the loans, and the Haitian government suspended interest payments.
Haiti’s loan arrears rendered the loan ineligible for disbursement meaning, Johnson says, “the US government’s plan to slow disbursement succeeded in blocking the loans indefinitely."
The bottom line, Johnson says, is that these loans were denied to Haiti “because the Bush Administration objected to Haiti’s internal politics, a decision that violated the IDB’s charter.”
He adds, “The development loans were being used as a weapon to oppose the government of Jean-Bertrand Aristide. Even after the loans were finally approved in 2003 (primarily because of Congressional pressure) the water projects were only moving into their implementation stage by mid-2007.
The lack of clean water has seriously impacted health, Johnson says, noting that at least 84.4 per cent of households had experienced at least one case of infectious illness.
This is a situation, Johnson says, “that could have been different.” He believes, the U.S. “shares significant responsibility for this and owes the people of Haiti for the decisions of past administrations.”
Writing in The Huffington Post, Johnson notes that "Haiti has a historically unhealthy dependence on foreign commerce and finance, from the colonial days of the sugar trade to the current assistance provided by developed countries."
"Now the same politicians and financial elites that helped create this mess are proposing an even larger program following the same mode," he says.
But he is quick to point out that “the Haitian people are not children and they can effectively manage their own affairs if given the chance to do so.”
Johnson’s point of view is echoed by USAID itself, which says, “It will be important that Haitians themselves assume responsibility for and full ownership of their future. Government, civil society and the business sector should lead the setting of the national development agenda.”
An encouraging variety of Haitian and International development professionals is now working to craft ideas for rebuilding projects that are necessary, practical and fundable. Most development professionals say that, unlike projects in the past, these initiatives should not be U.S. creations alone, superimposed on Haitian needs or programs that favor the elites only; participants are hopeful they will bear the fruit of sustained cooperation between ordinary Haitians and the international community.
The next installment of this series will describe some of the specific development initiatives undertaken by the U.S. and international institutions and donors.
By William Fisher
In Haiti, now close to the one-month mark since the devastating earthquake of January 12, victims continue to perish from a variety of causes, including death by red tape: they fall between the cracks of a still-poorly- uncoordinated aid effort. The physicians working in Haiti call these “the stupid deaths” – by which they mean avoidable.
Yet amidst the chaos and suffering that inevitably accompanies natural disasters, there are people who are beginning to plan for Haiti’s future. And, for many, their optimism is rooted in the miserable performance of international assistance in the past. Against that background, they say, they have nowhere to go but up.
It is an unusual combination of optimism and realism that is driving development experts to try to shed the blemished history of international aid to Haiti, rid the issue of a generation of devastating politicization, and think way outside the conventional development paradigm.
The fate of one particularly important project is emblematic of factors that have consistently and severely reduced the effectiveness – even the existence – of viable development projects.
Eric Michael Johnson of the Department of History at the University of British Columbia, told IPS, “The US role towards Haiti can best be understood as a kind of abusive paternalism, at times condescending and at others domineering depending on how fully Haitian governments obey the patriarch's dictates.”
To illustrate his point, Johnson told IPS what happened after the first coup d'etat and reinstatement of President Bertrand Aristide in late 1994 to a term that ended in 1996. This was followed by five years of René Préval (who is also President today). In 2000 Aristide once again won overwhelmingly in the Haitian elections. Aristede’s second election did not please the new American President, George W. Bush.
Johnson then recounts how the Bush Administration conspired to cut off funds already appropriated for a vital infrastructure and public health project.
An award of $146 million dollars from the Inter-American Development Bank (IDB) had already been approved, but at US insistence was not being disbursed. Some $54 million of this loan was intended for desperately needed water and sanitation projects. Johnson says, “This decision likely resulted in the needless deaths of an untold number of poor Haitians.”
In 2006, the Robert F. Kennedy Center filed a Freedom of Information Act Request to force the US to release documents related to this decision. According to the documents, “there was clear evidence that the United States blocked the loans because they objected to the election of Aristide,” Johnson says.
The IDB approved these loans between 1996 and 1998, and Haiti paid around $10 million in interest even before the loans were dispersed. By 2001 there was no reason for the IDB to continue blocking these loans. But block them they did.
The loans were not disbursed and, on November 8, 2001, the Congressional Black Caucus wrote to President Bush stating that "it is wrong to impose an inflexible policy which conditions US relations and aid, be it loans or grants, entirely on a country's political process" and insisting that "it is imperative that the US remove its blockade of essentially all aid to Haiti, particularly the loans currently held up at the Inter-American Development Bank."
The US – the largest contributor to the IDB -- continued to put roadblocks in the way of disbursement of these loans, even while Haiti was paying interest on the loans it hadn't received. In 2002 Haiti stopped payment.
A study published in the journal “Health and Human Rights” stated: "Public statements by US government officials soon explicitly linked non-disbursement with political concerns. In early 2002, the journal concluded that the IDB did not intend to disburse the loans, and the Haitian government suspended interest payments.
Haiti’s loan arrears rendered the loan ineligible for disbursement meaning, Johnson says, “the US government’s plan to slow disbursement succeeded in blocking the loans indefinitely."
The bottom line, Johnson says, is that these loans were denied to Haiti “because the Bush Administration objected to Haiti’s internal politics, a decision that violated the IDB’s charter.”
He adds, “The development loans were being used as a weapon to oppose the government of Jean-Bertrand Aristide. Even after the loans were finally approved in 2003 (primarily because of Congressional pressure) the water projects were only moving into their implementation stage by mid-2007.
The lack of clean water has seriously impacted health, Johnson says, noting that at least 84.4 per cent of households had experienced at least one case of infectious illness.
This is a situation, Johnson says, “that could have been different.” He believes, the U.S. “shares significant responsibility for this and owes the people of Haiti for the decisions of past administrations.”
Writing in The Huffington Post, Johnson notes that "Haiti has a historically unhealthy dependence on foreign commerce and finance, from the colonial days of the sugar trade to the current assistance provided by developed countries."
"Now the same politicians and financial elites that helped create this mess are proposing an even larger program following the same mode," he says.
But he is quick to point out that “the Haitian people are not children and they can effectively manage their own affairs if given the chance to do so.”
Johnson’s point of view is echoed by USAID itself, which says, “It will be important that Haitians themselves assume responsibility for and full ownership of their future. Government, civil society and the business sector should lead the setting of the national development agenda.”
An encouraging variety of Haitian and International development professionals is now working to craft ideas for rebuilding projects that are necessary, practical and fundable. Most development professionals say that, unlike projects in the past, these initiatives should not be U.S. creations alone, superimposed on Haitian needs or programs that favor the elites only; participants are hopeful they will bear the fruit of sustained cooperation between ordinary Haitians and the international community.
The next installment of this series will describe some of the specific development initiatives undertaken by the U.S. and international institutions and donors.
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