By William Fisher
As pro- and anti-Wikileaks forces ratchet up their battle, and Wikileaks’ impresario marks time in storied, overcrowded, and very Victorian Wandsworth Prison in southwest London, a group of his supporters are taking a different tack. They’re not hacking Visa or Master Card or Sarah Palen; instead they’re speaking out in no uncertain terms. Their message: On balance, Wikileaks has performed a valuable public service for which he is now being persecuted with trumped up sex charges.
These champions of transparency and enemies of government secrecy are the small but vocal community known as the human rights constituency. Many were among the first to defend Wikileaks and among the most vocal.
Joining them is an equally articulate community: the groups that campaign tirelessly for press freedom.
Here are some of the sentiments expressed by these groups when contacted by IPS:
Dinah PoKempner of Human Rights Watch says she “has no information regarding Mr. Assange's personal actions in Sweden and thus no position on his arrest on charges of sexual assault other than that like any suspect in a criminal case, he should be accorded full rights of defense due under international and domestic law.”
However, [her organization does] have concerns at recent allegations from various political figures that the actions of Wikileaks in releasing classified US cables somehow amount to either "terrorism" or "espionage" in the absence of evidence of any intent to attack civilians or endanger national security. Threats made against Mr. Assange's life are particularly reprehensible,” she says.
She added: “Although the quantity of the Wikileaks cable release is unprecedented, the nature of the material is not. Traditional media frequently reveal non-public government information of an embarrassing nature, and this can be in the public interest and in furtherance of the right to receive information in a democratic society. We have expressed concern to Wikileaks that care be taken not to reveal information that endangers lives, and we continue to monitor the disclosures to that end.”
Michael Ratner, the firebrand President of the Center for Constitutional Rights, told IPS, “ Wikileaks has played a critical role in giving the American people the truth about the lies the US government has told about its wars, especially those in the Middle East and Central Asia. We were lied to about Yemen, Pakistan, Afghanistan, Iran, Iraq and other places. There can be no issue more important then getting the truth out about war and the drum beats of war; only then can people act responsibly to protest war. Why did no other major newspaper bring the US lies to our attention?”
He pivoted to Assange's arrest, saying, “Yes, the charges for which he is being investigated need to be investigated. Yet the irregularities in the proceeding are glaring. Why was the case dropped originally? Why was he allowed to leave Sweden? Why was an arrest warrant issued to bring him back to Sweden for questioning--which he is willing to do at a Swedish embassy in the UK? Why was bail denied when he surrendered and his lawyers had let the police know he would do so when the warrant was served? Finally, is the hand of the US the answer to these questions? Sweden is not the UK; the US can squash that tiny country. The chances of getting its hands on Assange from there are probably improved--and that may be the story.”
Hina Shamsi, Director of the ACLU National Security Project, focused on widespread rumors that there is a conspiracy between the U.K. and Sweden to extradite Assange to the United States.
She told us, “We’re deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents”
“If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA’s secret prisons or the government spying on innocent Americans. Prosecuting publishers of classified information threatens investigative journalism that is necessary to an informed public debate about government conduct, and that is an unthinkable outcome,” she said, adding,
“The broader lesson of the WikiLeaks phenomenon is that President Obama should recommit to the ideals of transparency he invoked at the beginning of his presidency. The American public should not have to depend on leaks to the news media and on whistleblowers to know what the government is up to.”
AMNESTY International played a more direct role than most. It said one of Wiki’s leaked diplomatic cables corroborates images released earlier this year by Amnesty International showing that the U.S. military carried out a missile strike in south Yemen in December 2009 that killed dozens of local civilians, including women and children.
The organization said that in the secret cable from January 2010 published by Wikileaks, Yemen’s President Ali Abdullah Saleh is reported as having assured U.S. General David Petraeus that his government would “continue saying the bombs are ours, not yours.”
Human Rights First notes that the latest round of WikiLeaks documents is rousing discussion about U.S. diplomatic relations – but Human Rights First, along with Human Rights Watch, has raised the question of human rights activists who may be at danger if certain information is not redacted. Wikileaks says it has been especially careful in removing those names and, according to human rights activist Chip Pitts, “The US Government has now repeatedly admitted that contrary to their prior alarmist statements no one has come to harm as a result of the Wikileaks disclosures (to which I would add none is likely, since Wikileaks has followed the lead of the other major news outlets in redacting information that would actually endanger lives or national security).
Organizations dedicated to press freedom have been equally outspoken.
Reporters Without Borders says it “can only condemn this determination to hound Assange and reiterates its conviction that WikiLeaks has a right under the U.S. Constitution’s First Amendment to publish these documents and is even playing a useful role by making them available to journalists and the greater public.”
They say that “any restriction on the freedom to disseminate this body of documents will affect the entire press, which has given detailed coverage to the information made available by WikiLeaks, with five leading international newspapers actively cooperating in preparing it for publication.”
John Kampfner, the chief executive of Index on Censorship, associated with IFEX (the International Freedom of Expression Exchange), says, “Good journalists and editors should be capable of separating the awkward from the damaging. Information that could endanger life, either in the short term or as part of a longer-term operation, should remain secret.”
He predicts: “Once this latest flurry is over, prepare for the backlash. Mr. Assange’s industrial-scale leaking may lead to legislation in a number of countries that makes whistle-blowing harder than it already is. Perhaps the most curious aspect of the Wikileaks revelations is not that they have happened, but it took someone as mercurial as Mr. Assange to be the conduit.”
He added, ”Rather than throwing stones, newspapers should be asking themselves why they did not have the wherewithal to hold truth to power.”
IFEX reiterated its call for “governments to improve the public's access to information, and only limit access if governments can demonstrate it would cause a specific and articulated harm. "The rules should not be used to hide other interests. Indeed, the existing U.S. rules on secrecy prohibit classifying information about crimes and as a means to prevent embarrassment.”
He believes “those rules are ignored far too often."
Chip Pitts, past president and current member of the Executive Committee of the Bill of Rights Defense Committee, told us, “Assange’s arrest now further complicates and escalates the situation: The ferocity with which the establishment has targeted Assange reveals its profound concern over the historic new trend toward global transparency Wikileaks exemplifies: if the big thieves can’t keep their thievery secret, what will they do?
He answers his question: “They thus strive with all their might to dramatically quash this upstart before others follow Assange’s example. Yet international as well as U.S. law is now clearly implicated, including international human rights law (for example the rights to free expression – including “to seek, receive and impart information and ideas through any media and regardless of frontiers” -- and fair trial) and the particulars of the extradition treaty to which Assange will ultimately be subject (for example Sweden’s, which precludes extradition for “political” offenses).”
Pitts believes these actions “will succeed only if the rule of law continues to be eroded on the global level as it has been at the national level in recent years, with Kafkaesque labels of ‘terrorism’ or ‘espionage’, and invocations of ‘state secrecy’ and ‘military necessity’ being used to chill journalists and shield even the most egregious facts from coming to light – let alone being used to finally hold the high and mighty accountable for their crimes.”
Thursday, December 09, 2010
Targeted Killing. Of Who?
By William Fisher
A Federal judge yesterday dismissed a court challenge to the policy of the administration of Barack Obama to target and execute U.S. citizens outside combat zones who do not pose an imminent threat.
Judge John Bates found that the plaintiff, Nasser Al-Aulaqi, did not have “standing” before the court -- the right to assert the interests of his son, Anwar Al-Aulaqi, who it is believed has been targeted for assassination. For this reason, the judge did not consider the merits of the case.
Judge Bates ruled that “there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches' and judicially unreviewable." Regarding the latter "political question" issue, the judge acknowledged "the somewhat unsettling nature of its conclusion."
Bates called the case "unique and extraordinary," and said it presented "[s]tark, and perplexing, questions" and found that the merits "present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure."
Ultimately, however, he dismissed the case on procedural grounds and found that "the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day…"
The suit had been brought by The Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) in August.
Following the granting the government's motion to dismiss the case, Jameel Jaffer, Deputy Legal Director of the ACLU, said, "If the court's ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation."
He added, "It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty. It's worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government's power to use lethal force against American citizens should be subject to meaningful oversight by the courts."
Jonathan Manes, a legal fellow with the National Security Project of the
ACLU Foundation, told IPS, “The court has drastically limited who can come into court to challenge a targeted killing before the fact. That said, if a targeted person is killed, the targeted person's estate could probably try to bring a wrongful death action after the fact.”
He continued: “The trouble is that Judge Bates's ruling suggests that courts should have no role in determining the lawfulness of a targeted killing even after the fact -- for example in a wrongful death lawsuit -- even if the victim is a U.S. citizen. The decision takes the view that killing citizens abroad in the name of national security is a ‘political question’," and so is reserved to the exclusive judgment of the President.”
“Under this view,” he said, “the courts can have no role whatsoever in assessing compliance with the Constitution -- either before or after a targeted killing occurs -- because those questions are reserved exclusively to the President. This is a very dangerous position, and is fundamentally inconsistent with the Constitution's guarantee of checks and balances.”
Manes drove home his point: Judge Bates's decision “would effectively grant the President unreviewable authority to order the targeted killing of Americans located far from any combat zone who pose no imminent threat. According to Judge Bates, the rules governing targeted killing of citizens can be written and applied in secret, with no independent checks at all. We reject the idea that the President has such a sweeping power over the lives and deaths of citizens abroad.”
The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi. The lawsuit asked the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asked the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.
Judge Bates asked but did not answer the troubling question, "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"
Meanwhile, A Yemeni judge ordered police on Saturday to capture "dead or alive" Anwar al-Awlaki, whom the U.S. government portrays as a radical Muslim cleric who has been linked to several terror plots in the U.S. He has been tied to the cargo plane bomb plot last month, the Detroit underwear bomber, and may be connected to the attempted Times Square bombing.
Other human rights organizations are also weighing on this controversial legal battle. Human Rights Watch (HRW) called on President Barack Obama to “immediately clarify [the government’s] legal rationale for targeted killings.
In a letter to President Obama, HRW Executive Director Kenneth Roth said the government “should answer the fundamental questions of how his administration determines whether a person may be targeted”.
He added, “Such operations may be lawful under certain circumstances, but absent clear boundaries, they will inevitably violate international law and set a dangerous precedent for abusive regimes around the globe.”
The Obama administration dramatically expanded the use of targeted killings outside of traditional battlefields following the attacks of September 11, 2001. Many of these killings are conducted by the Central Intelligence Agency through the use of Unmanned Combat Aircraft Systems (drones). The US government asserts that it has authority under international law to use lethal force outside of clearly defined war zones because it is engaged in a global armed conflict with al Qaeda and associated forces.
Roth’s letter to Obama said the “US government claims that the entire world is a battleground in which the laws of war are applicable undermine the protections of international law. This discredited notion invites the application of lethal force by other countries in situations where the US would strongly object to its use.”
HRW called on Obama to “provide greater clarity on how the US government determines when a targeted killing in an armed conflict situation meets the requirements of distinction and proportionality under the laws of war and the measures it is taking to minimize civilian harm. During armed conflict, only combatants or civilians who are actively participating in hostilities may be lawfully targeted.”
Roth offered a number of detailed recommendations, including: Do not define all operations as part of a "global armed conflict"; define who may be legally targeted; ensure compliance with the laws of war; ensure compliance with international human rights law; improve transparency and accountability; minimize harm to civilians; and avoid dangerous precedents;
A Federal judge yesterday dismissed a court challenge to the policy of the administration of Barack Obama to target and execute U.S. citizens outside combat zones who do not pose an imminent threat.
Judge John Bates found that the plaintiff, Nasser Al-Aulaqi, did not have “standing” before the court -- the right to assert the interests of his son, Anwar Al-Aulaqi, who it is believed has been targeted for assassination. For this reason, the judge did not consider the merits of the case.
Judge Bates ruled that “there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches' and judicially unreviewable." Regarding the latter "political question" issue, the judge acknowledged "the somewhat unsettling nature of its conclusion."
Bates called the case "unique and extraordinary," and said it presented "[s]tark, and perplexing, questions" and found that the merits "present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure."
Ultimately, however, he dismissed the case on procedural grounds and found that "the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day…"
The suit had been brought by The Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) in August.
Following the granting the government's motion to dismiss the case, Jameel Jaffer, Deputy Legal Director of the ACLU, said, "If the court's ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation."
He added, "It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty. It's worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government's power to use lethal force against American citizens should be subject to meaningful oversight by the courts."
Jonathan Manes, a legal fellow with the National Security Project of the
ACLU Foundation, told IPS, “The court has drastically limited who can come into court to challenge a targeted killing before the fact. That said, if a targeted person is killed, the targeted person's estate could probably try to bring a wrongful death action after the fact.”
He continued: “The trouble is that Judge Bates's ruling suggests that courts should have no role in determining the lawfulness of a targeted killing even after the fact -- for example in a wrongful death lawsuit -- even if the victim is a U.S. citizen. The decision takes the view that killing citizens abroad in the name of national security is a ‘political question’," and so is reserved to the exclusive judgment of the President.”
“Under this view,” he said, “the courts can have no role whatsoever in assessing compliance with the Constitution -- either before or after a targeted killing occurs -- because those questions are reserved exclusively to the President. This is a very dangerous position, and is fundamentally inconsistent with the Constitution's guarantee of checks and balances.”
Manes drove home his point: Judge Bates's decision “would effectively grant the President unreviewable authority to order the targeted killing of Americans located far from any combat zone who pose no imminent threat. According to Judge Bates, the rules governing targeted killing of citizens can be written and applied in secret, with no independent checks at all. We reject the idea that the President has such a sweeping power over the lives and deaths of citizens abroad.”
The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi. The lawsuit asked the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asked the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.
Judge Bates asked but did not answer the troubling question, "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"
Meanwhile, A Yemeni judge ordered police on Saturday to capture "dead or alive" Anwar al-Awlaki, whom the U.S. government portrays as a radical Muslim cleric who has been linked to several terror plots in the U.S. He has been tied to the cargo plane bomb plot last month, the Detroit underwear bomber, and may be connected to the attempted Times Square bombing.
Other human rights organizations are also weighing on this controversial legal battle. Human Rights Watch (HRW) called on President Barack Obama to “immediately clarify [the government’s] legal rationale for targeted killings.
In a letter to President Obama, HRW Executive Director Kenneth Roth said the government “should answer the fundamental questions of how his administration determines whether a person may be targeted”.
He added, “Such operations may be lawful under certain circumstances, but absent clear boundaries, they will inevitably violate international law and set a dangerous precedent for abusive regimes around the globe.”
The Obama administration dramatically expanded the use of targeted killings outside of traditional battlefields following the attacks of September 11, 2001. Many of these killings are conducted by the Central Intelligence Agency through the use of Unmanned Combat Aircraft Systems (drones). The US government asserts that it has authority under international law to use lethal force outside of clearly defined war zones because it is engaged in a global armed conflict with al Qaeda and associated forces.
Roth’s letter to Obama said the “US government claims that the entire world is a battleground in which the laws of war are applicable undermine the protections of international law. This discredited notion invites the application of lethal force by other countries in situations where the US would strongly object to its use.”
HRW called on Obama to “provide greater clarity on how the US government determines when a targeted killing in an armed conflict situation meets the requirements of distinction and proportionality under the laws of war and the measures it is taking to minimize civilian harm. During armed conflict, only combatants or civilians who are actively participating in hostilities may be lawfully targeted.”
Roth offered a number of detailed recommendations, including: Do not define all operations as part of a "global armed conflict"; define who may be legally targeted; ensure compliance with the laws of war; ensure compliance with international human rights law; improve transparency and accountability; minimize harm to civilians; and avoid dangerous precedents;
No Laptops in Wandsworth Prison
By William Fisher
As pro- and anti-Wikileaks forces ratchet up their battle, and Wikileaks’ impresario marks time in storied, overcrowded, and very Victorian Wandsworth Prison in southwest London, a group of his supporters are taking a different tack. They’re not hacking Visa or Master Card or Sarah Palen; instead they’re speaking out in no uncertain terms. Their message: On balance, Wikileaks has performed a valuable public service for which he is now being persecuted with trumped up sex charges.
These champions of transparency and enemies of government secrecy are the small but vocal community known as the human rights constituency. Many were among the first to defend Wikileaks and among the most vocal.
Joining them is an equally articulate community: the groups that campaign tirelessly for press freedom.
Here are some of the sentiments expressed by these groups when contacted by IPS:
Dinah PoKempner of Human Rights Watch says she “has no information regarding Mr. Assange's personal actions in Sweden and thus no position on his arrest on charges of sexual assault other than that like any suspect in a criminal case, he should be accorded full rights of defense due under international and domestic law.”
However, [her organization does] have concerns at recent allegations from various political figures that the actions of Wikileaks in releasing classified US cables somehow amount to either "terrorism" or "espionage" in the absence of evidence of any intent to attack civilians or endanger national security. Threats made against Mr. Assange's life are particularly reprehensible,” she says.
She added: “Although the quantity of the Wikileaks cable release is unprecedented, the nature of the material is not. Traditional media frequently reveal non-public government information of an embarrassing nature, and this can be in the public interest and in furtherance of the right to receive information in a democratic society. We have expressed concern to Wikileaks that care be taken not to reveal information that endangers lives, and we continue to monitor the disclosures to that end.”
Michael Ratner, the firebrand President of the Center for Constitutional Rights, told IPS, “ Wikileaks has played a critical role in giving the American people the truth about the lies the US government has told about its wars, especially those in the Middle East and Central Asia. We were lied to about Yemen, Pakistan, Afghanistan, Iran, Iraq and other places. There can be no issue more important then getting the truth out about war and the drum beats of war; only then can people act responsibly to protest war. Why did no other major newspaper bring the US lies to our attention?”
He pivoted to Assange's arrest, saying, “Yes, the charges for which he is being investigated need to be investigated. Yet the irregularities in the proceeding are glaring. Why was the case dropped originally? Why was he allowed to leave Sweden? Why was an arrest warrant issued to bring him back to Sweden for questioning--which he is willing to do at a Swedish embassy in the UK? Why was bail denied when he surrendered and his lawyers had let the police know he would do so when the warrant was served? Finally, is the hand of the US the answer to these questions? Sweden is not the UK; the US can squash that tiny country. The chances of getting its hands on Assange from there are probably improved--and that may be the story.”
Hina Shamsi, Director of the ACLU National Security Project, focused on widespread rumors that there is a conspiracy between the U.K. and Sweden to extradite Assange to the United States.
She told us, “We’re deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents”
“If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA’s secret prisons or the government spying on innocent Americans. Prosecuting publishers of classified information threatens investigative journalism that is necessary to an informed public debate about government conduct, and that is an unthinkable outcome,” she said, adding,
“The broader lesson of the WikiLeaks phenomenon is that President Obama should recommit to the ideals of transparency he invoked at the beginning of his presidency. The American public should not have to depend on leaks to the news media and on whistleblowers to know what the government is up to.”
AMNESTY International played a more direct role than most. It said one of Wiki’s leaked diplomatic cables corroborates images released earlier this year by Amnesty International showing that the U.S. military carried out a missile strike in south Yemen in December 2009 that killed dozens of local civilians, including women and children.
The organization said that in the secret cable from January 2010 published by Wikileaks, Yemen’s President Ali Abdullah Saleh is reported as having assured U.S. General David Petraeus that his government would “continue saying the bombs are ours, not yours.”
Human Rights First notes that the latest round of WikiLeaks documents is rousing discussion about U.S. diplomatic relations – but Human Rights First, along with Human Rights Watch, has raised the question of human rights activists who may be at danger if certain information is not redacted. Wikileaks says it has been especially careful in removing those names and, according to human rights activist Chip Pitts, “The US Government has now repeatedly admitted that contrary to their prior alarmist statements no one has come to harm as a result of the Wikileaks disclosures (to which I would add none is likely, since Wikileaks has followed the lead of the other major news outlets in redacting information that would actually endanger lives or national security).
Organizations dedicated to press freedom have been equally outspoken.
Reporters Without Borders says it “can only condemn this determination to hound Assange and reiterates its conviction that WikiLeaks has a right under the U.S. Constitution’s First Amendment to publish these documents and is even playing a useful role by making them available to journalists and the greater public.”
They say that “any restriction on the freedom to disseminate this body of documents will affect the entire press, which has given detailed coverage to the information made available by WikiLeaks, with five leading international newspapers actively cooperating in preparing it for publication.”
John Kampfner, the chief executive of Index on Censorship, associated with IFEX (the International Freedom of Expression Exchange), says, “Good journalists and editors should be capable of separating the awkward from the damaging. Information that could endanger life, either in the short term or as part of a longer-term operation, should remain secret.”
He predicts: “Once this latest flurry is over, prepare for the backlash. Mr. Assange’s industrial-scale leaking may lead to legislation in a number of countries that makes whistle-blowing harder than it already is. Perhaps the most curious aspect of the Wikileaks revelations is not that they have happened, but it took someone as mercurial as Mr. Assange to be the conduit.”
He added, ”Rather than throwing stones, newspapers should be asking themselves why they did not have the wherewithal to hold truth to power.”
IFEX reiterated its call for “governments to improve the public's access to information, and only limit access if governments can demonstrate it would cause a specific and articulated harm. "The rules should not be used to hide other interests. Indeed, the existing U.S. rules on secrecy prohibit classifying information about crimes and as a means to prevent embarrassment.”
He believes “those rules are ignored far too often."
Chip Pitts, past president and current member of the Executive Committee of the Bill of Rights Defense Committee, told us, “Assange’s arrest now further complicates and escalates the situation: The ferocity with which the establishment has targeted Assange reveals its profound concern over the historic new trend toward global transparency Wikileaks exemplifies: if the big thieves can’t keep their thievery secret, what will they do?
He answers his question: “They thus strive with all their might to dramatically quash this upstart before others follow Assange’s example. Yet international as well as U.S. law is now clearly implicated, including international human rights law (for example the rights to free expression – including “to seek, receive and impart information and ideas through any media and regardless of frontiers” -- and fair trial) and the particulars of the extradition treaty to which Assange will ultimately be subject (for example Sweden’s, which precludes extradition for “political” offenses).”
Pitts believes these actions “will succeed only if the rule of law continues to be eroded on the global level as it has been at the national level in recent years, with Kafkaesque labels of ‘terrorism’ or ‘espionage’, and invocations of ‘state secrecy’ and ‘military necessity’ being used to chill journalists and shield even the most egregious facts from coming to light – let alone being used to finally hold the high and mighty accountable for their crimes.”
As pro- and anti-Wikileaks forces ratchet up their battle, and Wikileaks’ impresario marks time in storied, overcrowded, and very Victorian Wandsworth Prison in southwest London, a group of his supporters are taking a different tack. They’re not hacking Visa or Master Card or Sarah Palen; instead they’re speaking out in no uncertain terms. Their message: On balance, Wikileaks has performed a valuable public service for which he is now being persecuted with trumped up sex charges.
These champions of transparency and enemies of government secrecy are the small but vocal community known as the human rights constituency. Many were among the first to defend Wikileaks and among the most vocal.
Joining them is an equally articulate community: the groups that campaign tirelessly for press freedom.
Here are some of the sentiments expressed by these groups when contacted by IPS:
Dinah PoKempner of Human Rights Watch says she “has no information regarding Mr. Assange's personal actions in Sweden and thus no position on his arrest on charges of sexual assault other than that like any suspect in a criminal case, he should be accorded full rights of defense due under international and domestic law.”
However, [her organization does] have concerns at recent allegations from various political figures that the actions of Wikileaks in releasing classified US cables somehow amount to either "terrorism" or "espionage" in the absence of evidence of any intent to attack civilians or endanger national security. Threats made against Mr. Assange's life are particularly reprehensible,” she says.
She added: “Although the quantity of the Wikileaks cable release is unprecedented, the nature of the material is not. Traditional media frequently reveal non-public government information of an embarrassing nature, and this can be in the public interest and in furtherance of the right to receive information in a democratic society. We have expressed concern to Wikileaks that care be taken not to reveal information that endangers lives, and we continue to monitor the disclosures to that end.”
Michael Ratner, the firebrand President of the Center for Constitutional Rights, told IPS, “ Wikileaks has played a critical role in giving the American people the truth about the lies the US government has told about its wars, especially those in the Middle East and Central Asia. We were lied to about Yemen, Pakistan, Afghanistan, Iran, Iraq and other places. There can be no issue more important then getting the truth out about war and the drum beats of war; only then can people act responsibly to protest war. Why did no other major newspaper bring the US lies to our attention?”
He pivoted to Assange's arrest, saying, “Yes, the charges for which he is being investigated need to be investigated. Yet the irregularities in the proceeding are glaring. Why was the case dropped originally? Why was he allowed to leave Sweden? Why was an arrest warrant issued to bring him back to Sweden for questioning--which he is willing to do at a Swedish embassy in the UK? Why was bail denied when he surrendered and his lawyers had let the police know he would do so when the warrant was served? Finally, is the hand of the US the answer to these questions? Sweden is not the UK; the US can squash that tiny country. The chances of getting its hands on Assange from there are probably improved--and that may be the story.”
Hina Shamsi, Director of the ACLU National Security Project, focused on widespread rumors that there is a conspiracy between the U.K. and Sweden to extradite Assange to the United States.
She told us, “We’re deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents”
“If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA’s secret prisons or the government spying on innocent Americans. Prosecuting publishers of classified information threatens investigative journalism that is necessary to an informed public debate about government conduct, and that is an unthinkable outcome,” she said, adding,
“The broader lesson of the WikiLeaks phenomenon is that President Obama should recommit to the ideals of transparency he invoked at the beginning of his presidency. The American public should not have to depend on leaks to the news media and on whistleblowers to know what the government is up to.”
AMNESTY International played a more direct role than most. It said one of Wiki’s leaked diplomatic cables corroborates images released earlier this year by Amnesty International showing that the U.S. military carried out a missile strike in south Yemen in December 2009 that killed dozens of local civilians, including women and children.
The organization said that in the secret cable from January 2010 published by Wikileaks, Yemen’s President Ali Abdullah Saleh is reported as having assured U.S. General David Petraeus that his government would “continue saying the bombs are ours, not yours.”
Human Rights First notes that the latest round of WikiLeaks documents is rousing discussion about U.S. diplomatic relations – but Human Rights First, along with Human Rights Watch, has raised the question of human rights activists who may be at danger if certain information is not redacted. Wikileaks says it has been especially careful in removing those names and, according to human rights activist Chip Pitts, “The US Government has now repeatedly admitted that contrary to their prior alarmist statements no one has come to harm as a result of the Wikileaks disclosures (to which I would add none is likely, since Wikileaks has followed the lead of the other major news outlets in redacting information that would actually endanger lives or national security).
Organizations dedicated to press freedom have been equally outspoken.
Reporters Without Borders says it “can only condemn this determination to hound Assange and reiterates its conviction that WikiLeaks has a right under the U.S. Constitution’s First Amendment to publish these documents and is even playing a useful role by making them available to journalists and the greater public.”
They say that “any restriction on the freedom to disseminate this body of documents will affect the entire press, which has given detailed coverage to the information made available by WikiLeaks, with five leading international newspapers actively cooperating in preparing it for publication.”
John Kampfner, the chief executive of Index on Censorship, associated with IFEX (the International Freedom of Expression Exchange), says, “Good journalists and editors should be capable of separating the awkward from the damaging. Information that could endanger life, either in the short term or as part of a longer-term operation, should remain secret.”
He predicts: “Once this latest flurry is over, prepare for the backlash. Mr. Assange’s industrial-scale leaking may lead to legislation in a number of countries that makes whistle-blowing harder than it already is. Perhaps the most curious aspect of the Wikileaks revelations is not that they have happened, but it took someone as mercurial as Mr. Assange to be the conduit.”
He added, ”Rather than throwing stones, newspapers should be asking themselves why they did not have the wherewithal to hold truth to power.”
IFEX reiterated its call for “governments to improve the public's access to information, and only limit access if governments can demonstrate it would cause a specific and articulated harm. "The rules should not be used to hide other interests. Indeed, the existing U.S. rules on secrecy prohibit classifying information about crimes and as a means to prevent embarrassment.”
He believes “those rules are ignored far too often."
Chip Pitts, past president and current member of the Executive Committee of the Bill of Rights Defense Committee, told us, “Assange’s arrest now further complicates and escalates the situation: The ferocity with which the establishment has targeted Assange reveals its profound concern over the historic new trend toward global transparency Wikileaks exemplifies: if the big thieves can’t keep their thievery secret, what will they do?
He answers his question: “They thus strive with all their might to dramatically quash this upstart before others follow Assange’s example. Yet international as well as U.S. law is now clearly implicated, including international human rights law (for example the rights to free expression – including “to seek, receive and impart information and ideas through any media and regardless of frontiers” -- and fair trial) and the particulars of the extradition treaty to which Assange will ultimately be subject (for example Sweden’s, which precludes extradition for “political” offenses).”
Pitts believes these actions “will succeed only if the rule of law continues to be eroded on the global level as it has been at the national level in recent years, with Kafkaesque labels of ‘terrorism’ or ‘espionage’, and invocations of ‘state secrecy’ and ‘military necessity’ being used to chill journalists and shield even the most egregious facts from coming to light – let alone being used to finally hold the high and mighty accountable for their crimes.”
Saturday, December 04, 2010
Warring Over Dream Act
By William Fisher
Immigration enforcement would be improved if Congress approves the DREAM Act that would legalize hundreds of thousands of undocumented students brought here illegally by their parents when they were children, said Department of Homeland Security Secretary Janet Napolitano.
Napolitano, once the governor of a Southern border state, Arizona, lobbied for the act in remarks to reporters from around the country during a conference call from Washington.
She said passage of the DREAM Act would enable DHS to focus more aggressively on deporting foreign criminal convicts.
"It's important to point out that the DREAM Act fits into a larger strategy of immigration enforcement, and would actually complement the Department of Homeland Security's efforts to prioritize our enforcement resources on removing dangerous criminal aliens from the country,'' Napolitano said.
Napolitano was clearly trying to persuade recalcitrant Republican lawmakers that the DREAM Act would complement enforcement, and that it was not an "amnesty" bill for undocumented immigrants.
Passage of the DREAM Act, she said, will allow Homeland Security to concentrate on catching the “criminals-first'' for the government’s deportation program. So far this year, the administration of barrack Obama has deported more people than were deported by his predecessor, George W. Bush, in the eight years of his administration. But despite Obama’s pledge to focus on serious criminals, many of those deported had been convicted of minor infractions, such as broken taillights and missing drivers’ licenses.
According to Senate Democratic Leader Harry Reid of Nevada, and House Speaker Nancy Pelosi, Democrat of California, the DREAM Act will be brought up to a vote during the lame-duck session. However, the timing of the debate is unclear and the clock is ticking on the crowded calendar of the so-called Lame Duck session.
When Congress returns in January, Republicans will control the House of Representatives and the Democratic majority in the Senate will be diminished.
Meanwhile, the Immigration Policy Center (IPC), launched a blistering attack on a new report from the Center for Immigration Studies (CIS), an organization that advocates immigration reduction in the United States.
IPC asserts that CIS's “cynical mischaracterization of the DREAM Act is not only inaccurate, but hypocritical as well.”
The CIS report claims that, “On average each illegal immigrant who attends a public institution will receive a tuition subsidy from taxpayers of nearly $6,000 for each year he or she attends for total cost of $6.2 billion a year, not including other forms of financial assistance that they may also receive.”
Wendy Sefsaf, Communications Director for the American Immigration Council, which is affiliated with the Immigration Policy Council, told IPS, “We have no idea where these numbers come from. They are not only inaccurate; they are incomplete – for example, they assign no cost to deporting tens of thousands of children.”
She adds, “Over the years, we have yet to find any category of immigrant the CIS says it wants in the United States.”
IPC says, “CIS frequently laments that so many immigrants to the United States have low levels of education, yet opposes a measure that would allow some of these immigrants to become more educated. What alternative to the DREAM Act does CIS propose? According to the Center for American Progress the cost to deport more than two million children and young adults who were raised in the United States would be $48.6 billion. How is that sound fiscal policy?”
The report, the IPC said, “paints a misleading financial portrait of the DREAM Act…claims that the bill would be a burden on U.S. taxpayers and would ‘crowd out’ native-born students in the classroom.
IPS charges that available evidence does not support either of these dire predictions. In fact:
“Institutions of higher education overwhelmingly support the DREAM Act, which would likely increase school revenues as students who would not normally attend college start to pay tuition.”
“The 10 states which, since 2001, have passed laws allowing undocumented students to qualify for in-state tuition have not experienced a large influx of new immigrant students that displaces native-born students.”
Most DREAM Act students, IPC says, would likely enroll in community colleges, most of which have open enrollment, based on a philosophy that all qualified students should have the opportunity to learn. Historically, more than 80% of community college students hold full or part-time jobs, thus contributing to their own educations (and the tax base) even as they attend school. The American Association of Community Colleges estimates that state and local governments receive a 16% return on every dollar they invest in community colleges due to the increased earnings of college graduates.
IPC continues: “Legalizing DREAM Act students would increase beneficiaries' earnings potential, as well as the U.S. tax base. A 2010 study by the UCLA North American Integration and Development Center estimates that the total earnings of DREAM Act beneficiaries over the course of their working lives would be between $1.4 trillion and $3.6 trillion.”
The IPC says, “The U.S. economy doesn't need more deportations; it needs more college graduates.” It cites a recent report from the Georgetown University Center on Education and the Workforce, saying, "Not enough Americans are completing college... by 2018, we will need 22 million new college degrees-but will fall short of that number by at least 3 million postsecondary degrees, Associate's or better." The DREAM Act would help meet this need, the group said.
The IPC, established in 2003, is the policy arm of the American Immigration Council. The CIS was founded in 1985. Its executive director is Mark Krekorian. Krekorian is well-known for statements such as, “Although mass immigration once served our national interests, in today's America it weakens our common national identity, limits opportunities for upward mobility, threatens our security and sovereignty, strains resources for social programs, and disrupts middle-class norms of behavior."
Immigration enforcement would be improved if Congress approves the DREAM Act that would legalize hundreds of thousands of undocumented students brought here illegally by their parents when they were children, said Department of Homeland Security Secretary Janet Napolitano.
Napolitano, once the governor of a Southern border state, Arizona, lobbied for the act in remarks to reporters from around the country during a conference call from Washington.
She said passage of the DREAM Act would enable DHS to focus more aggressively on deporting foreign criminal convicts.
"It's important to point out that the DREAM Act fits into a larger strategy of immigration enforcement, and would actually complement the Department of Homeland Security's efforts to prioritize our enforcement resources on removing dangerous criminal aliens from the country,'' Napolitano said.
Napolitano was clearly trying to persuade recalcitrant Republican lawmakers that the DREAM Act would complement enforcement, and that it was not an "amnesty" bill for undocumented immigrants.
Passage of the DREAM Act, she said, will allow Homeland Security to concentrate on catching the “criminals-first'' for the government’s deportation program. So far this year, the administration of barrack Obama has deported more people than were deported by his predecessor, George W. Bush, in the eight years of his administration. But despite Obama’s pledge to focus on serious criminals, many of those deported had been convicted of minor infractions, such as broken taillights and missing drivers’ licenses.
According to Senate Democratic Leader Harry Reid of Nevada, and House Speaker Nancy Pelosi, Democrat of California, the DREAM Act will be brought up to a vote during the lame-duck session. However, the timing of the debate is unclear and the clock is ticking on the crowded calendar of the so-called Lame Duck session.
When Congress returns in January, Republicans will control the House of Representatives and the Democratic majority in the Senate will be diminished.
Meanwhile, the Immigration Policy Center (IPC), launched a blistering attack on a new report from the Center for Immigration Studies (CIS), an organization that advocates immigration reduction in the United States.
IPC asserts that CIS's “cynical mischaracterization of the DREAM Act is not only inaccurate, but hypocritical as well.”
The CIS report claims that, “On average each illegal immigrant who attends a public institution will receive a tuition subsidy from taxpayers of nearly $6,000 for each year he or she attends for total cost of $6.2 billion a year, not including other forms of financial assistance that they may also receive.”
Wendy Sefsaf, Communications Director for the American Immigration Council, which is affiliated with the Immigration Policy Council, told IPS, “We have no idea where these numbers come from. They are not only inaccurate; they are incomplete – for example, they assign no cost to deporting tens of thousands of children.”
She adds, “Over the years, we have yet to find any category of immigrant the CIS says it wants in the United States.”
IPC says, “CIS frequently laments that so many immigrants to the United States have low levels of education, yet opposes a measure that would allow some of these immigrants to become more educated. What alternative to the DREAM Act does CIS propose? According to the Center for American Progress the cost to deport more than two million children and young adults who were raised in the United States would be $48.6 billion. How is that sound fiscal policy?”
The report, the IPC said, “paints a misleading financial portrait of the DREAM Act…claims that the bill would be a burden on U.S. taxpayers and would ‘crowd out’ native-born students in the classroom.
IPS charges that available evidence does not support either of these dire predictions. In fact:
“Institutions of higher education overwhelmingly support the DREAM Act, which would likely increase school revenues as students who would not normally attend college start to pay tuition.”
“The 10 states which, since 2001, have passed laws allowing undocumented students to qualify for in-state tuition have not experienced a large influx of new immigrant students that displaces native-born students.”
Most DREAM Act students, IPC says, would likely enroll in community colleges, most of which have open enrollment, based on a philosophy that all qualified students should have the opportunity to learn. Historically, more than 80% of community college students hold full or part-time jobs, thus contributing to their own educations (and the tax base) even as they attend school. The American Association of Community Colleges estimates that state and local governments receive a 16% return on every dollar they invest in community colleges due to the increased earnings of college graduates.
IPC continues: “Legalizing DREAM Act students would increase beneficiaries' earnings potential, as well as the U.S. tax base. A 2010 study by the UCLA North American Integration and Development Center estimates that the total earnings of DREAM Act beneficiaries over the course of their working lives would be between $1.4 trillion and $3.6 trillion.”
The IPC says, “The U.S. economy doesn't need more deportations; it needs more college graduates.” It cites a recent report from the Georgetown University Center on Education and the Workforce, saying, "Not enough Americans are completing college... by 2018, we will need 22 million new college degrees-but will fall short of that number by at least 3 million postsecondary degrees, Associate's or better." The DREAM Act would help meet this need, the group said.
The IPC, established in 2003, is the policy arm of the American Immigration Council. The CIS was founded in 1985. Its executive director is Mark Krekorian. Krekorian is well-known for statements such as, “Although mass immigration once served our national interests, in today's America it weakens our common national identity, limits opportunities for upward mobility, threatens our security and sovereignty, strains resources for social programs, and disrupts middle-class norms of behavior."
I Spy With My Little Eye…
By William Fisher
Last week's release of 900 pages of U.S. Government documents dealing with the implementation of the nation's primary surveillance law suggests that the government has been systematically violating the privacy rights of U.S. citizens.
How many citizens is unclear, since the Government’s documents were extensively redacted. The previously secret internal documents were obtained through a court battle by the American Civil Liberties Union (ACLU).
The government declined to disclose the numbers of Americans who had their telephone calls, e-mail, or other communications intercepted under the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008. They also declined to discuss any specific abuses, the ACLU said.
The 900 documents were delivered in keeping with a previously agreed schedule.
Here’s what we know now:
Alex Abdo, a senior attorney with the ACLU, told IPS, "for two years now, the government has had the authority to engage in the dragnet and unconstitutional surveillance of Americans' communications with little to no oversight of its actual surveillance decisions."
He added, "This week's disclosures confirm that the government repeatedly abused even the minimal, and unconstitutional, limits set out in this new surveillance authority. Although we know that abuses occurred, the government has withheld all critical details about them."
"As Congress considers whether to renew or modify the FISA Amendments Act in 2012, the government must make additional information public to allow an informed debate about its use and abuse of this controversial surveillance power," he said.
The lawsuit seeks to enforce a November 2009 Freedom of Information Act (FOIA) request for records related to the government's interpretation and implementation of the FAA, including reports and assessments mandated by the law concerning how the FAA is being used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights.
Prior to the government’s release of last week’s 900 pages, it had not released any of the records requested. The lawsuit alleges that the requested records are needed to enable informed public debate about whether the FAA - which expires in 2012 - should be repealed, amended or extended.
The ACLU filed today's FOIA lawsuit against the Office of the Director of National Intelligence, Justice Department, National Security Agency and Defense Department in the U.S. District Court for the Southern District of New York.
In July 2008, the ACLU and the NYCLU filed a landmark lawsuit to stop the government from conducting surveillance under the FAA on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States.
A district court dismissed the case, ruling that the plaintiffs could not challenge the secret surveillance law because they could not prove that their own communications had been monitored under it.
The ACLU and NYCLU appealed that ruling and have asked a federal appeals court to reinstate the case. The groups argued that, because of the secret nature of the FAA, the law may never be subject to judicial review at all if Americans are prohibited from challenging it unless they can show that their own communications have been collected.
"It is unfortunate that once again we have to sue over the secrecy that continues to shroud so much of our government's work," said NYCLU Associate Legal Director Christopher Dunn. "While we have seen recent improvements in transparency, much more remains to be done before we have a truly open government."
Attorneys on the FOIA case are Alex Abdo and Jameel Jaffer of the ACLU and Dunn and Arthur Eisenberg of the New York Civil Liberties Union
(NYCLU).
However, routine oversight reports carried out by the government itself acknowledge ongoing violations of legal parameters and civil rights that limit when Americans are targeted and minimize the amount of data collected.
As noted by the Washington Post, "The documents note that although oversight teams did not find evidence of "intentional or willful attempts to violate or circumvent the law . . . certain types of compliance incidents continue to occur," as a March 2009 report stated."
The Post goes on to assert that the unredacted portions of the reports refer only elliptically to what those actions were, but the March 2009 report stated that, "information collected as a result of these incidents has been or is being purged from data repositories."
However, no matter how small or large, the ACLU told IPS that the track-record thus far underscores "the need for continued focus on measures to address underlying causes."
The ACLU finds violations of the FISA Amendments Act's "targeting and minimization procedures . . . likely means that citizens and residents' communications were either being improperly collected or 'targeted' or improperly retained and disseminated."
The Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control).
The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government. An overhaul of the bill, the Protect America Act of 2007 was signed into law on August 5, 2007. It expired on February 17, 2008. The FISA Amendments Act of 2008 passed by the United States Congress on July 9, 2008.
Lawmakers amended the 1978 law in 2008 to “broaden and clarify legal authorities” after the Sept. 11, 2001, terrorist attacks and advances in Internet communications prompted fresh concerns over expanded surveillance powers.
The ACLU, human rights activists and other parties sued, charging that the new law is unconstitutional, violating the Fourth Amendment's prohibition of unreasonable searches.
A U.S. district judge dismissed the case, but the ACLU appealed the verdict, which is still pending. Meantime, the ACLU has pursued the related Freedom of Information Act request.
Last week's release of 900 pages of U.S. Government documents dealing with the implementation of the nation's primary surveillance law suggests that the government has been systematically violating the privacy rights of U.S. citizens.
How many citizens is unclear, since the Government’s documents were extensively redacted. The previously secret internal documents were obtained through a court battle by the American Civil Liberties Union (ACLU).
The government declined to disclose the numbers of Americans who had their telephone calls, e-mail, or other communications intercepted under the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008. They also declined to discuss any specific abuses, the ACLU said.
The 900 documents were delivered in keeping with a previously agreed schedule.
Here’s what we know now:
Alex Abdo, a senior attorney with the ACLU, told IPS, "for two years now, the government has had the authority to engage in the dragnet and unconstitutional surveillance of Americans' communications with little to no oversight of its actual surveillance decisions."
He added, "This week's disclosures confirm that the government repeatedly abused even the minimal, and unconstitutional, limits set out in this new surveillance authority. Although we know that abuses occurred, the government has withheld all critical details about them."
"As Congress considers whether to renew or modify the FISA Amendments Act in 2012, the government must make additional information public to allow an informed debate about its use and abuse of this controversial surveillance power," he said.
The lawsuit seeks to enforce a November 2009 Freedom of Information Act (FOIA) request for records related to the government's interpretation and implementation of the FAA, including reports and assessments mandated by the law concerning how the FAA is being used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights.
Prior to the government’s release of last week’s 900 pages, it had not released any of the records requested. The lawsuit alleges that the requested records are needed to enable informed public debate about whether the FAA - which expires in 2012 - should be repealed, amended or extended.
The ACLU filed today's FOIA lawsuit against the Office of the Director of National Intelligence, Justice Department, National Security Agency and Defense Department in the U.S. District Court for the Southern District of New York.
In July 2008, the ACLU and the NYCLU filed a landmark lawsuit to stop the government from conducting surveillance under the FAA on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States.
A district court dismissed the case, ruling that the plaintiffs could not challenge the secret surveillance law because they could not prove that their own communications had been monitored under it.
The ACLU and NYCLU appealed that ruling and have asked a federal appeals court to reinstate the case. The groups argued that, because of the secret nature of the FAA, the law may never be subject to judicial review at all if Americans are prohibited from challenging it unless they can show that their own communications have been collected.
"It is unfortunate that once again we have to sue over the secrecy that continues to shroud so much of our government's work," said NYCLU Associate Legal Director Christopher Dunn. "While we have seen recent improvements in transparency, much more remains to be done before we have a truly open government."
Attorneys on the FOIA case are Alex Abdo and Jameel Jaffer of the ACLU and Dunn and Arthur Eisenberg of the New York Civil Liberties Union
(NYCLU).
However, routine oversight reports carried out by the government itself acknowledge ongoing violations of legal parameters and civil rights that limit when Americans are targeted and minimize the amount of data collected.
As noted by the Washington Post, "The documents note that although oversight teams did not find evidence of "intentional or willful attempts to violate or circumvent the law . . . certain types of compliance incidents continue to occur," as a March 2009 report stated."
The Post goes on to assert that the unredacted portions of the reports refer only elliptically to what those actions were, but the March 2009 report stated that, "information collected as a result of these incidents has been or is being purged from data repositories."
However, no matter how small or large, the ACLU told IPS that the track-record thus far underscores "the need for continued focus on measures to address underlying causes."
The ACLU finds violations of the FISA Amendments Act's "targeting and minimization procedures . . . likely means that citizens and residents' communications were either being improperly collected or 'targeted' or improperly retained and disseminated."
The Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control).
The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government. An overhaul of the bill, the Protect America Act of 2007 was signed into law on August 5, 2007. It expired on February 17, 2008. The FISA Amendments Act of 2008 passed by the United States Congress on July 9, 2008.
Lawmakers amended the 1978 law in 2008 to “broaden and clarify legal authorities” after the Sept. 11, 2001, terrorist attacks and advances in Internet communications prompted fresh concerns over expanded surveillance powers.
The ACLU, human rights activists and other parties sued, charging that the new law is unconstitutional, violating the Fourth Amendment's prohibition of unreasonable searches.
A U.S. district judge dismissed the case, but the ACLU appealed the verdict, which is still pending. Meantime, the ACLU has pursued the related Freedom of Information Act request.
Friday, December 03, 2010
Death Penalty Challenge
By William Fisher
Next Monday, December 6, a district court in Texas will be asked – for the first time in that state’s history – to decide whether the death penalty is unconstitutional based on the “disproportionately high risk of wrongful convictions” in Texas.
John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s attorneys have filed a pretrial motion in Harris County District Court. Judge Kevin Fine will hear arguments that the death penalty is unconstitutional because it creates an unacceptable risk of executing innocent people.
Green's attorneys contend that a number of factors in Texas's legal system increase the risk of innocent people being executed.
According to the defense, these include a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions, and a history of racial discrimination in jury selection.
Paul Cates, Director of Communications for the Innocence Project, told IPS, “The Innocence Project will be participating in the hearing specifically to put on evidence about the cases of Claude Jones and Cameron Todd Willingham. Both Jones and Willingham were executed in Texas.”
He said, “In the case of Claude Jones, DNA evidence has proven that critical physical evidence (a hair sample) used to place him at the scene of the crime did not belong to Jones. Cameron Todd Willingham was executed even though a prominent arson scientist notified the Governor and the appeals court prior to his execution that the critical testimony of the arson investigator was based on outdated arson science.”
Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive -- and free -- because a pro bono law firm took his case.
The Innocence Project has been responsible for freeing numerous prisoners from death row, largely through its use of DNA evidence.
Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas.
"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she said.
Retired Supreme Court Justice John Paul Stevens, writing in the New York Review of Books this week, said he now thinks the death penalty is unconstutitonal.
Since 1976, twelve people have been exonerated from death row in Texas out of 139 nationwide, and four study commissions set up by the Texas government have formally recognized the serious risks of wrongful convictions there.
Out of the 464 people executed in Texas, about 70 percent have been minorities, according to the Texas Department of Criminal Justice.
Andrea Keilen, executive director of Texas Defender Service, said it is clear to her that the death penalty is handed down unfairly and erratically in Texas.
"It is my opinion and the opinion of many people close to this issue that the Texas system is wholly incapable of carrying out the death penalty in a fair and reliable way," she said, adding:
"Texas is remarkably out of step with the rest of the country and certainly out of step with what the average Texan would expect when dealing with capital punishment. We're seeing in case after case that the system is just inherently prone to the risk of wrongful convictions and has a complete inability to correct its mistakes."
Keilen said that while the state has a history of strong popular support for capital punishment, she thinks Texans would feel differently about the practice if they knew all the facts.
"I think there is support for the idea of the death penalty among the average Texan, but that if the average Texan were to get a closeup view of how the system actually operates, that support would significantly wane," she said.
"It's an abstract concept to most people, but if they saw how abysmal the quality of representation can be, how the system is biased racially, how prosecutors can not disclose evidence, or how DNA testing can be wrong, my opinion is that they as reasonable people would find it unacceptable."
The defense motion focuses on the factors they say increase the risk of wrongful convictions and executions in Texas, including: lack of safeguards to protect against mistaken eyewitness identification, which has been a factor in 75% of DNA exonerations nationwide; failures to guard against false confessions, which has been a factor in 25% of DNA exonerations nationwide; use of notoriously unreliable informant testimony, which has been a factor in nearly 50% of wrongful murder convictions nationwide; faulty forensic evidence; inadequate pretrial discovery procedures and state misconduct, which has been documents in 41 capital convictions in Texas; and racial discrimination in jury selection, which leads to less accurate fact-finding.
At next week’s hearing, expert witnesses will testify about “the numerous flaws that leave Texas' system riddled with errors, inherently unreliable, and unconstitutional as applied,” Green’s lawyers say.
They add that the clemency process fails in its role as the last safeguard against executing the innocent. Claude Jones was executed in 2000 based on false evidence. During the clemency review, then-Governor Bush was not informed that Mr. Jones had requested DNA testing that might have exonerated him. Ten years after Mr. Jones’ execution, a DNA test showed that the hair sample at the crime scene was not his.
Four study commissions set up by the three branches of Texas government have formally recognized the serious risks of wrongful convictions, but virtually nothing has been done to fix the problem.
Nationwide, since 1976, 139 people have been exonerated from death row. Twelve of them were in Texas.
The 35 U.S. states that practice the death penalty have executed 1,233 prisoners since 1976. In 2010, executions will number 47, down from 52 a year earlier. Some 3,261 prisoners are currently on death row. States executing the most prisoners since 1976 were Texas (466) and Virginia (108). One hundred thirty-eight prisoners have been freed from death row, largely as a result of new DNA evidence.
Next Monday, December 6, a district court in Texas will be asked – for the first time in that state’s history – to decide whether the death penalty is unconstitutional based on the “disproportionately high risk of wrongful convictions” in Texas.
John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s attorneys have filed a pretrial motion in Harris County District Court. Judge Kevin Fine will hear arguments that the death penalty is unconstitutional because it creates an unacceptable risk of executing innocent people.
Green's attorneys contend that a number of factors in Texas's legal system increase the risk of innocent people being executed.
According to the defense, these include a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions, and a history of racial discrimination in jury selection.
Paul Cates, Director of Communications for the Innocence Project, told IPS, “The Innocence Project will be participating in the hearing specifically to put on evidence about the cases of Claude Jones and Cameron Todd Willingham. Both Jones and Willingham were executed in Texas.”
He said, “In the case of Claude Jones, DNA evidence has proven that critical physical evidence (a hair sample) used to place him at the scene of the crime did not belong to Jones. Cameron Todd Willingham was executed even though a prominent arson scientist notified the Governor and the appeals court prior to his execution that the critical testimony of the arson investigator was based on outdated arson science.”
Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive -- and free -- because a pro bono law firm took his case.
The Innocence Project has been responsible for freeing numerous prisoners from death row, largely through its use of DNA evidence.
Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas.
"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she said.
Retired Supreme Court Justice John Paul Stevens, writing in the New York Review of Books this week, said he now thinks the death penalty is unconstutitonal.
Since 1976, twelve people have been exonerated from death row in Texas out of 139 nationwide, and four study commissions set up by the Texas government have formally recognized the serious risks of wrongful convictions there.
Out of the 464 people executed in Texas, about 70 percent have been minorities, according to the Texas Department of Criminal Justice.
Andrea Keilen, executive director of Texas Defender Service, said it is clear to her that the death penalty is handed down unfairly and erratically in Texas.
"It is my opinion and the opinion of many people close to this issue that the Texas system is wholly incapable of carrying out the death penalty in a fair and reliable way," she said, adding:
"Texas is remarkably out of step with the rest of the country and certainly out of step with what the average Texan would expect when dealing with capital punishment. We're seeing in case after case that the system is just inherently prone to the risk of wrongful convictions and has a complete inability to correct its mistakes."
Keilen said that while the state has a history of strong popular support for capital punishment, she thinks Texans would feel differently about the practice if they knew all the facts.
"I think there is support for the idea of the death penalty among the average Texan, but that if the average Texan were to get a closeup view of how the system actually operates, that support would significantly wane," she said.
"It's an abstract concept to most people, but if they saw how abysmal the quality of representation can be, how the system is biased racially, how prosecutors can not disclose evidence, or how DNA testing can be wrong, my opinion is that they as reasonable people would find it unacceptable."
The defense motion focuses on the factors they say increase the risk of wrongful convictions and executions in Texas, including: lack of safeguards to protect against mistaken eyewitness identification, which has been a factor in 75% of DNA exonerations nationwide; failures to guard against false confessions, which has been a factor in 25% of DNA exonerations nationwide; use of notoriously unreliable informant testimony, which has been a factor in nearly 50% of wrongful murder convictions nationwide; faulty forensic evidence; inadequate pretrial discovery procedures and state misconduct, which has been documents in 41 capital convictions in Texas; and racial discrimination in jury selection, which leads to less accurate fact-finding.
At next week’s hearing, expert witnesses will testify about “the numerous flaws that leave Texas' system riddled with errors, inherently unreliable, and unconstitutional as applied,” Green’s lawyers say.
They add that the clemency process fails in its role as the last safeguard against executing the innocent. Claude Jones was executed in 2000 based on false evidence. During the clemency review, then-Governor Bush was not informed that Mr. Jones had requested DNA testing that might have exonerated him. Ten years after Mr. Jones’ execution, a DNA test showed that the hair sample at the crime scene was not his.
Four study commissions set up by the three branches of Texas government have formally recognized the serious risks of wrongful convictions, but virtually nothing has been done to fix the problem.
Nationwide, since 1976, 139 people have been exonerated from death row. Twelve of them were in Texas.
The 35 U.S. states that practice the death penalty have executed 1,233 prisoners since 1976. In 2010, executions will number 47, down from 52 a year earlier. Some 3,261 prisoners are currently on death row. States executing the most prisoners since 1976 were Texas (466) and Virginia (108). One hundred thirty-eight prisoners have been freed from death row, largely as a result of new DNA evidence.
Thursday, December 02, 2010
Someone’s Not Telling the Truth
By William Fisher
A diplomatic cable published by Wikileaks corroborates images released earlier by Amnesty International (AI) showing that the U.S. military carried out a missile strike in south Yemen in December 2009 that killed dozens of local residents, including women and children, AI charged.
In the secret cable, written in January 2010, Yemen’s President Ali Abdullah Saleh is reported to have assured U.S. General David Petraeus that his government would “continue saying the bombs are ours, not yours”.
According to the cable, this prompted Yemeni Deputy Prime Minister Rashad al-‘Alimi “to joke that he had just ‘lied’ by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG [Republic of Yemen Government]”.
Amnesty International is calling on the U.S. government to investigate the serious allegations of the use of drones by US forces for targeted killings of individuals in Yemen and clarify the chain of command and rules governing the use of such drones
Philip Luther, Amnesty International’s Deputy Director for the Middle East and North Africa, claims, “The cable appears to confirm [our] finding that the Abyan strike was carried out by the U.S. military, not Yemeni government forces.”
An alleged al-Qa’ida training camp at al-Ma’jalah, Abyan, was hit by a cruise missile on 17 December 2009. A Yemeni parliamentary inquiry found that 41 local residents, including 14 women and 21 children, and 14 alleged al-Qa’ida members were killed in the attack. In the 4 January cable, General Petraeus is recorded as saying that the attack had caused the deaths of “only” three “civilians”.
Amnesty International provided the media with photographs of the aftermath of the Abyan strike in June this year, including remnants of U.S.-sourced cluster munitions and the Tomahawk cruise missiles used to deliver them.
The organization had requested information from the Pentagon about the involvement of U.S. forces in the al-Ma’jalah attack, and what precautions may have been taken to minimize deaths and injuries.
The US government did not respond to Amnesty International, but a press report the day after the images were released quoted a Pentagon spokesman as saying that the U.S. declined to comment on the strike and that questions on operations against al-Qa’ida should be posed to the Yemeni government.
“There must be an immediate investigation into the dozens of deaths of local
residents in the Abyan air strike, including into the extent of US involvement,” said Amnesty’s Luther. “Those responsible for unlawful killings must be brought to justice.”
The “Arhab” strike referred to in the secret cable was carried out on 17
December 2009 and the “Shebwa” strike on 24 December 2009. The Yemeni government insisted at the time that their forces had carried out all three attacks, which were meant to target al-Qai’da in the Arabian Peninsula.
In the leaked cable, President Saleh is said to have suggested that targeted
aerial attacks were preferable to those by cruise missiles, which were “not very accurate”, and to have expressed anxiety about the level of civilian casualties caused.
President Saleh agreed to have US fixed-wing bombers circle outside Yemeni territory ready to engage targets “should actionable intelligence become available”, according to the cable, and also requested that the USA provide 12 armed helicopters and train and equip three new Republican Guard brigades, totaling 9,000 soldiers. He complained that Yemeni forces had not yet received the necessary training to operate 17 “Iraqi” light armored vehicles provided by the US government in 2008.
The leaked cable says that US security assistance to Yemen would substantially increase from US$67 million in 2009 to U.S.$150 million in 2010, including $45 million to equip and train an aviation regiment under the Yemeni Special Operations Forces. The USA told President Saleh that two fully equipped 87-foot patrol boats destined for the Yemeni coastguard were under construction and would arrive in Yemen within a year.
US forces are also alleged to have used unmanned aerial drones in Yemen in
efforts to kill suspected leading al-Qa’ida members. An attack in May 2010 which apparently killed in error a key mediator between the Yemeni government and al-Qa’ida in the Arabian Peninsula was said by some sources to have been carried out from an unmanned drone. Yemen’s Foreign Affairs Minister later said the government would investigate whether drones were used in the attack and, if so, whether they were used by Yemeni security forces or others, such as the USA.
Amnesty International is not aware that any outcome to the investigation has
been disclosed.
Amnesty International has called on the U.S. government to investigate the serious allegations of the use of drones by US forces for targeted killings of individuals in Yemen and clarify the chain of command and rules governing the use of such drones; ensure that all US military and security support given to Yemen, and all US military and security operations carried out in Yemen, are designed and implemented so as to adhere fully with relevant international human rights law and standards, and that such human rights standards are made fully operational in training programs and systems of monitoring and accountability.
A diplomatic cable published by Wikileaks corroborates images released earlier by Amnesty International (AI) showing that the U.S. military carried out a missile strike in south Yemen in December 2009 that killed dozens of local residents, including women and children, AI charged.
In the secret cable, written in January 2010, Yemen’s President Ali Abdullah Saleh is reported to have assured U.S. General David Petraeus that his government would “continue saying the bombs are ours, not yours”.
According to the cable, this prompted Yemeni Deputy Prime Minister Rashad al-‘Alimi “to joke that he had just ‘lied’ by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG [Republic of Yemen Government]”.
Amnesty International is calling on the U.S. government to investigate the serious allegations of the use of drones by US forces for targeted killings of individuals in Yemen and clarify the chain of command and rules governing the use of such drones
Philip Luther, Amnesty International’s Deputy Director for the Middle East and North Africa, claims, “The cable appears to confirm [our] finding that the Abyan strike was carried out by the U.S. military, not Yemeni government forces.”
An alleged al-Qa’ida training camp at al-Ma’jalah, Abyan, was hit by a cruise missile on 17 December 2009. A Yemeni parliamentary inquiry found that 41 local residents, including 14 women and 21 children, and 14 alleged al-Qa’ida members were killed in the attack. In the 4 January cable, General Petraeus is recorded as saying that the attack had caused the deaths of “only” three “civilians”.
Amnesty International provided the media with photographs of the aftermath of the Abyan strike in June this year, including remnants of U.S.-sourced cluster munitions and the Tomahawk cruise missiles used to deliver them.
The organization had requested information from the Pentagon about the involvement of U.S. forces in the al-Ma’jalah attack, and what precautions may have been taken to minimize deaths and injuries.
The US government did not respond to Amnesty International, but a press report the day after the images were released quoted a Pentagon spokesman as saying that the U.S. declined to comment on the strike and that questions on operations against al-Qa’ida should be posed to the Yemeni government.
“There must be an immediate investigation into the dozens of deaths of local
residents in the Abyan air strike, including into the extent of US involvement,” said Amnesty’s Luther. “Those responsible for unlawful killings must be brought to justice.”
The “Arhab” strike referred to in the secret cable was carried out on 17
December 2009 and the “Shebwa” strike on 24 December 2009. The Yemeni government insisted at the time that their forces had carried out all three attacks, which were meant to target al-Qai’da in the Arabian Peninsula.
In the leaked cable, President Saleh is said to have suggested that targeted
aerial attacks were preferable to those by cruise missiles, which were “not very accurate”, and to have expressed anxiety about the level of civilian casualties caused.
President Saleh agreed to have US fixed-wing bombers circle outside Yemeni territory ready to engage targets “should actionable intelligence become available”, according to the cable, and also requested that the USA provide 12 armed helicopters and train and equip three new Republican Guard brigades, totaling 9,000 soldiers. He complained that Yemeni forces had not yet received the necessary training to operate 17 “Iraqi” light armored vehicles provided by the US government in 2008.
The leaked cable says that US security assistance to Yemen would substantially increase from US$67 million in 2009 to U.S.$150 million in 2010, including $45 million to equip and train an aviation regiment under the Yemeni Special Operations Forces. The USA told President Saleh that two fully equipped 87-foot patrol boats destined for the Yemeni coastguard were under construction and would arrive in Yemen within a year.
US forces are also alleged to have used unmanned aerial drones in Yemen in
efforts to kill suspected leading al-Qa’ida members. An attack in May 2010 which apparently killed in error a key mediator between the Yemeni government and al-Qa’ida in the Arabian Peninsula was said by some sources to have been carried out from an unmanned drone. Yemen’s Foreign Affairs Minister later said the government would investigate whether drones were used in the attack and, if so, whether they were used by Yemeni security forces or others, such as the USA.
Amnesty International is not aware that any outcome to the investigation has
been disclosed.
Amnesty International has called on the U.S. government to investigate the serious allegations of the use of drones by US forces for targeted killings of individuals in Yemen and clarify the chain of command and rules governing the use of such drones; ensure that all US military and security support given to Yemen, and all US military and security operations carried out in Yemen, are designed and implemented so as to adhere fully with relevant international human rights law and standards, and that such human rights standards are made fully operational in training programs and systems of monitoring and accountability.
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