By William Fisher
As the U.S. prison at Guantanamo Bay, Cuba, enters its tenth year, a Washington think tank is challenging intelligence estimates suggesting that large numbers of released detainees have taken up arms against the United States.
Director of National Intelligence (DNI) James Clapper claimed in December -- that 13.5 percent of former Guantanamo detainees are “confirmed” to have “returned to the battlefield” and an additional 11.5 percent are suspected of "reengaging" in terrorist or insurgent activities after their release.
Conservatives, along with the corporate media, embraced the government narrative that as many as one in four former detainees had returned to the battlefield, up sharply from the prior year.
However, the DNI did not offer any evidence.
But three scholars with the New America Foundation are out with a new analysis backed up with data. The authors -- Peter Bergen, Katherine Tiedemann, and Andrew Lebovich -- conclude that only six percent of released detainees – not 13.5 per cent – are engaged with or are “suspected of having engaged with” insurgents aimed at attacking U.S. interests. Another two percent have engaged or are suspected of having engaged against non-U.S. targets, the NAF analysis said.
A total of almost 800 men have been held at Guantánamo at one time or another since it opened in January 2002, and around 600 have been released.
Members of an NAF panel Tuesday afternoon also challenged the notion that some detainees "returned" to the battlefield, noting that many were innocent to begin with.
It has long been known that something approaching 95 per cent of GITMO prisoners were not captured by American forces, but were sold to the Americans for bounty.
Panelist Andy Worthington, a British freelance journalist who tracks Guantanamo detainees, said he was concerned at how the recidivism figures were "conjured up out of nowhere" but treated as fact by many mainstream media outlets. "It's bad journalism," he said.
Most reports also lacked context. "You don't have anything like a zero
recidivism rate in any prison system," he said. The average recidivism rate in U.S. prisons is slightly over 50 per cent within three years of release.
The NAF figures were cited by conservatives to support their arguments against closing Guantanamo. Democrats, afraid of the political repercussions, joined with Republicans to include provisions in the latest defense authorization bill intended to prevent Obama from closing Guantanamo.
Obama last week called those provisions "dangerous and unprecedented."
"Every day that a place like Guantanamo is open is an insult to values that
decent American people hold," Worthington said.
The NAF analysis is far from the first to find fault with the government’s figures. Earlier, reports from Seton Hall Law School and Syracuse University’s Transactional Clearing House (TRAC) charged that the DNI reports were inaccurate, lacking supporting data, and slanted to put the most undesirable face on the issue.
In 2009, Professor Mark Denbeaux of the Seton Hall University law school issued another of the school’s reports on recidivism at GITMO, and told this reporter that the U.S. Defense Department was “issuing questionable data on the number of Guantanamo detainees who have been released and then returned to the battlefield.”
He said the reason was because the government “is now in a position where they have to find some bad guys—even if they have to invent them by naming people who were never there.”
Their ultimate aim, said, “is to foment fear among American voters and limit the freedom of the Obama administration to release any of the detainees still imprisoned.”
Denbeaux heads the law school’s Center for Policy and Research. He claimed the Center’s 2009 report “rebuts and debunks” the most recent claim by the Department of Defense that 61 “former Guantánamo detainees are confirmed or suspected of returning to the fight.”
Prof. Denbeaux said, “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies. Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have has issued ‘recidivism’ numbers 43 times, and each time they have included people who have never even set foot in Guantánamo—much less were they released from there.”
He added, “They have counted people as ‘returning to the fight’ for their having written an op-ed piece in the New York Times and for their having appeared in a documentary exhibited at the Cannes Film Festival.”
Denbeaux said that the government’s numbers are also “seriously undercut by the DOD statement that ‘they do not track’ former detainees.”
He told us that previous DOD reports have said the numbers of recidivist detainees have been “one, several, some, a couple, a few, five, seven, 10, 12, 15, 12-24, 25, 29, and 30.”
But he claims that in the two instances in which DOD provided written support—
July 12, 2007 and May 20, 2008—their previous oral assertions were repudiated. For instance, the report said, in DOD’s July 12, 2007, news release, “the 30 recidivists reported by DOD in April 2007 is reduced to five.”
DOD’s report of July 2007 identified seven prisoners by name, but the Seton Hall group said that “as many as two of those seven named were never in Guantanamo, and two of the remaining five were never killed or captured anywhere. Of the three remaining, one was killed in his apartment in Russia by Russian authorities. None of them is alleged to have left their homeland or attacked Americans on a battlefield or otherwise.”
Prof. Denbeaux concluded: “Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantánamo—much less were they released from there.”
Meanwhile, the Obama Administration’s pledge to close Guantanamo within a year of his inauguration – or at any other time – receded into neverland when Congress voted to block Obama from bringing Guantanamo Bay detainees to the United States for trial, including the self-proclaimed mastermind of the Sept. 11, 2001 attacks, Khalid Sheikh Mohammed.
The transfer ban was tucked into a critical government funding bill that Obama was obliged to sign into law. He called the GITMO provision “dangerous.”
The Congressional action also drew fierce opposition from Attorney General Eric H. Holder Jr. Holder announced in the fall of 2009 that Mohammed and four other al-Qaeda detainees would go on trial in Manhattan federal court.
New York officials, once enthusiastic about hosting the high-profile trials, soon objected to them. They said they would be expensive and dangerous. Administration officials said in March that New York was no longer a possibility and that the detainees would probably be tried by military commission.
New York’s objection was part of a Congress-wide reaction against Gitmo detainees coming to the U.S. for any reason, including trial. Lawmakers whipped up a firestorm of hysteria over terrorists being set free in U.S. towns and cities. Since then, there has been no decision on where the trials should be held.
The chance that civilian trials were in the offing grew even remote when Ahmed Ghailani, the first Guantanamo detainee brought to the United States for trial, was acquitted of 284 counts for his role in the 1998 U.S. embassy bombings in East Africa. He was convicted on only one count of conspiracy, and he could face life in prison.
The lack of a “big victory” forced administration officials to conclude that they had to hold detainees such as Mohammed indefinitely while proceeding with a select number of military commissions.
The attorney general said, "I also want to emphasize in the strongest possible terms that on a very personal level and as the person who knows these cases better than anybody, anybody, that this legislation is unwise. It takes away from the Justice Department, from our investigative agencies; it takes away from the American people the ability to hold accountable people who have committed mass murder, people who intended to harm, kill American citizens.''
There are 173 detainees still at GITMO, including three who have been convicted or have reached plea deals with the Military Commissions. There are 89 who have been cleared for release but who have not been released for a variety of reasons. In some cases, countries have not been identified who are willing to take them. Fifty-eight of those remaining are from Yemen; all transfers to that country have been shut down since a Yemeni-trained Nigerian tried to blow up an airliner over Detroit last Christmas day.
An undetermined number of prisoners are slated to be tried by Military Commissions. Assuming all of this occurs, there will still be a group of prisoners who authorities deem “too hard to try, too dangerous to release.” These are the men who can look forward to indefinite detention without charge, although, for many of them, the reason they cannot be tried is that evidence against them was obtained through torture or other “enhanced interrogation techniques” during the George W. Bush Administration.
Thursday, January 13, 2011
Wednesday, January 05, 2011
Convicted of Nothing, but Held in Solitary Anyway
By William Fisher
While Julian Assange, the head of Wikileaks, conducts international media interviews from a manor house in the English countryside, Pfc. Bradley Manning, the soldier the military reportedly believes is responsible for providing Wikileaks’ information, languishes in solitary confinement in a Marine brig.
Now, a group of respected professional psychologists has asked Defense Secretary Gates to change the conditions of his imprisonment because “solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it.”
Psychologists for Social Responsibility (sySR) says it is “deeply concerned about Manning’s pretrial detention conditions, including solitary confinement for over five months, a forced lack of exercise, and possible sleep deprivation.
It has been reported by his attorney and a visitor that Manning's mental health is suffering from his treatment.”
In their Open Letter to Secretary Gates, the psychologists’ group says, “Manning has been held in solitary confinement since July of 2010. He reportedly is held in his cell for approximately 23 hours a day, a cell approximately six feet wide and twelve feet in length, with a bed, a drinking fountain, and a toilet.”
The group adds, “For no discernable reason other than punishment, he is forbidden from exercising in his cell and is provided minimal access to exercise outside his cell. Further, despite having virtually nothing to do, he is forbidden to sleep during the day and often has his sleep at night disrupted.”
The letter continues: “As an organization of psychologists and other mental health professionals, sySR is aware that solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it. We therefore call or a revision in the conditions of PFC Manning’s incarceration while he awaits trial, based on the exhaustive documentation and research that have determined that solitary confinement is, at the very least, a form of cruel, unusual and inhumane treatment in violation of U.S. law.”
The group says the conditions of isolation to which PFC Manning, as well as many other U.S. prisoners are subjected, are sufficiently harsh as to have aroused international concern. In the most recent report of the UN Committee against Torture, the Committee equates Manning’s treatment with that meted out to prisoners in “supermaximum prisons.
The Committee said it is concerned about the “prolonged isolation periods detainees are subjected to, the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment.”
PsySR charges that in addition to the “needless brutality” of the conditions to which PFC Manning is being subjected, it is “concerned that the coercive nature of these conditions -- along with their serious psychological effects such as depression, paranoia, or hopelessness -- may undermine his ability to meaningfully cooperate with his defense, undermining his right to a fair trial.”
The group cited the views of Dr. Craig Haney, a psychologist and expert in the assessment of institutional environments. He said, “Empirical research on solitary and supermax-like confinement has consistently and unequivocally documented the harmful consequences of living in these kinds of environments . . .”
Dr. Haney concludes, “To summarize, there is not a single published study of solitary or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days where participants were unable to terminate their isolation at will that failed to result in negative psychological effects”
Trudy Bond, Ph.D., a member of the organization’s Steering Committee, and Stephen Soldz, Ph.D., President of the organization, signs the letter.
Other civil libertarians have also weighed in on the Manning issue. Last week, the legal logger Glenn Greenwald of Salon described Manning’s solitary confinement. Greenwald also said his treatment was equivalent to being in a Supermax prison. He described it as torture, and wrote:
“In sum, Manning has been subjected for many months without pause to inhumane, personality-erasing, soul-destroying, insanity-inducing conditions of isolation similar to those perfected at America’s Supermax prison in Florence, Colorado: all without so much as having been convicted of anything. And as is true of many prisoners subjected to warped treatment of this sort, the brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.”
Letter signatory Bond approached Manning’s situation from her vantage point as a professional psychologist. She told The Public Record, “People are social creatures. We need to interact with others to be truly alive. Solitary confinement is an extremely painful punishment that threatens a person’s mental stability. It is appalling to have Bradley Manning, a person not convicted of any crime, subjected to this harsh punishment,” she said, adding,
“Solitary confinement, rather than being a rational response to a risk, is more often used as a punishment for someone who is considered to be a member of a despised or 'dangerous' group. As with all torture and inhumane treatment, it is meant to intimidate both the victim and society at large."
Human rights advocates were virtually unanimous regarding what they see as the injustice of Manning’s confinement. Bill Quigley, Legal Director of the Center for Constitutional Rights (CCR), put it this way:
“The US treatment of Bradley Manning is clearly punitive and designed to deter others from leaking information about illegal actions of the US. It is also coercive in order to force him to identify other people who might be prosecuted. This is very similar to what the US has been doing in Guantanamo.”
He told The Public Record, “Under US and international human rights law people are supposed to be innocent until proven guilty. International law recognizes prolonged solitary confinement as akin to torture. The US treatment of Manning violates the spirit of law, human rights, human dignity, and fair play. It is unjust.”
A similar view was expressed by Chip Pitts, a lecturer in law at Stanford University law school and Oxford University and an Executive Board member of the Bill of Rights Defense Committee. Pitts told The Public Record:
“The unusual conditions imposed on PFC Manning should concern us all. In whatever light one views his actions – and many appropriately highlight the whistleblowing aspects and crimes he revealed – the harsh treatment reported is inconsistent with any reasonable system of justice and would clearly constitute inappropriate pre-trial punishment for offenses not yet adjudicated.”
He continued: “It is illegal and immoral, jeopardizing his ability to defend himself in the future. Have both our military and civilian systems been irrevocably tainted by the recourse to torture and cruel, inhuman, and degrading treatment in recent years? Or is this another instance of mindless ‘revenge’ of the establishment for deviations from orthodoxy? In any case, the conduct is unbecoming the military and our legal system and must stop at once.
While Julian Assange, the head of Wikileaks, conducts international media interviews from a manor house in the English countryside, Pfc. Bradley Manning, the soldier the military reportedly believes is responsible for providing Wikileaks’ information, languishes in solitary confinement in a Marine brig.
Now, a group of respected professional psychologists has asked Defense Secretary Gates to change the conditions of his imprisonment because “solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it.”
Psychologists for Social Responsibility (sySR) says it is “deeply concerned about Manning’s pretrial detention conditions, including solitary confinement for over five months, a forced lack of exercise, and possible sleep deprivation.
It has been reported by his attorney and a visitor that Manning's mental health is suffering from his treatment.”
In their Open Letter to Secretary Gates, the psychologists’ group says, “Manning has been held in solitary confinement since July of 2010. He reportedly is held in his cell for approximately 23 hours a day, a cell approximately six feet wide and twelve feet in length, with a bed, a drinking fountain, and a toilet.”
The group adds, “For no discernable reason other than punishment, he is forbidden from exercising in his cell and is provided minimal access to exercise outside his cell. Further, despite having virtually nothing to do, he is forbidden to sleep during the day and often has his sleep at night disrupted.”
The letter continues: “As an organization of psychologists and other mental health professionals, sySR is aware that solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it. We therefore call or a revision in the conditions of PFC Manning’s incarceration while he awaits trial, based on the exhaustive documentation and research that have determined that solitary confinement is, at the very least, a form of cruel, unusual and inhumane treatment in violation of U.S. law.”
The group says the conditions of isolation to which PFC Manning, as well as many other U.S. prisoners are subjected, are sufficiently harsh as to have aroused international concern. In the most recent report of the UN Committee against Torture, the Committee equates Manning’s treatment with that meted out to prisoners in “supermaximum prisons.
The Committee said it is concerned about the “prolonged isolation periods detainees are subjected to, the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment.”
PsySR charges that in addition to the “needless brutality” of the conditions to which PFC Manning is being subjected, it is “concerned that the coercive nature of these conditions -- along with their serious psychological effects such as depression, paranoia, or hopelessness -- may undermine his ability to meaningfully cooperate with his defense, undermining his right to a fair trial.”
The group cited the views of Dr. Craig Haney, a psychologist and expert in the assessment of institutional environments. He said, “Empirical research on solitary and supermax-like confinement has consistently and unequivocally documented the harmful consequences of living in these kinds of environments . . .”
Dr. Haney concludes, “To summarize, there is not a single published study of solitary or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days where participants were unable to terminate their isolation at will that failed to result in negative psychological effects”
Trudy Bond, Ph.D., a member of the organization’s Steering Committee, and Stephen Soldz, Ph.D., President of the organization, signs the letter.
Other civil libertarians have also weighed in on the Manning issue. Last week, the legal logger Glenn Greenwald of Salon described Manning’s solitary confinement. Greenwald also said his treatment was equivalent to being in a Supermax prison. He described it as torture, and wrote:
“In sum, Manning has been subjected for many months without pause to inhumane, personality-erasing, soul-destroying, insanity-inducing conditions of isolation similar to those perfected at America’s Supermax prison in Florence, Colorado: all without so much as having been convicted of anything. And as is true of many prisoners subjected to warped treatment of this sort, the brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.”
Letter signatory Bond approached Manning’s situation from her vantage point as a professional psychologist. She told The Public Record, “People are social creatures. We need to interact with others to be truly alive. Solitary confinement is an extremely painful punishment that threatens a person’s mental stability. It is appalling to have Bradley Manning, a person not convicted of any crime, subjected to this harsh punishment,” she said, adding,
“Solitary confinement, rather than being a rational response to a risk, is more often used as a punishment for someone who is considered to be a member of a despised or 'dangerous' group. As with all torture and inhumane treatment, it is meant to intimidate both the victim and society at large."
Human rights advocates were virtually unanimous regarding what they see as the injustice of Manning’s confinement. Bill Quigley, Legal Director of the Center for Constitutional Rights (CCR), put it this way:
“The US treatment of Bradley Manning is clearly punitive and designed to deter others from leaking information about illegal actions of the US. It is also coercive in order to force him to identify other people who might be prosecuted. This is very similar to what the US has been doing in Guantanamo.”
He told The Public Record, “Under US and international human rights law people are supposed to be innocent until proven guilty. International law recognizes prolonged solitary confinement as akin to torture. The US treatment of Manning violates the spirit of law, human rights, human dignity, and fair play. It is unjust.”
A similar view was expressed by Chip Pitts, a lecturer in law at Stanford University law school and Oxford University and an Executive Board member of the Bill of Rights Defense Committee. Pitts told The Public Record:
“The unusual conditions imposed on PFC Manning should concern us all. In whatever light one views his actions – and many appropriately highlight the whistleblowing aspects and crimes he revealed – the harsh treatment reported is inconsistent with any reasonable system of justice and would clearly constitute inappropriate pre-trial punishment for offenses not yet adjudicated.”
He continued: “It is illegal and immoral, jeopardizing his ability to defend himself in the future. Have both our military and civilian systems been irrevocably tainted by the recourse to torture and cruel, inhuman, and degrading treatment in recent years? Or is this another instance of mindless ‘revenge’ of the establishment for deviations from orthodoxy? In any case, the conduct is unbecoming the military and our legal system and must stop at once.
Tuesday, January 04, 2011
Barbour Burning?
By William Fisher
The state of Mississippi, which ranks last in just about everything, is about to be first in something.
And that something is almost as bizarre as who’s making it happen.
The “what” of this story: Starting with the 2011-2012 school curriculum, civil rights will be a required course for all Mississippi students from kindergarten to 12th grade all across the state. State officials believe Mississippi could be the first state to require civil rights studies throughout all grades in its public school systems.
The “who” of this story: None other than Haley Barbour, Mississippi’s flaming civil libertarian governor. For it was this cherubic presidential wanabee who signed the new curriculum into law five years ago.
Barbour told the Associated Press he sees the value in the new curriculum.
"To not know history is to repeat it. And to learn the good things about Mississippi and America and the bad things about Mississippi and America is important for every Mississippian," Barbour said of the new curriculum.
Three cheers for the governor!
And, yes, this is the same Haley Barbour who dove into deep doodoo by rewriting history to transform the White Citizens Council in his hometown, Yazoo City, Miss., from a bunch of segregationist rednecks determined to thwart the orders of the Supreme Court to a community of upright business leaders and parents focused on keeping the Ku Klux Klan out of town.
Barbour told The Weekly Standard he didn't remember the civil rights struggles of the 1950s and 60s as "being that bad."
But then, predictably, the Governor was obliged to back off from singing the praises of the champions of segregation after his remarks caught the attention of the media nationwide.
"When asked why my home town in Mississippi did not suffer the same racial violence when I was a young man that accompanied other towns' integration efforts, I accurately said the community leadership wouldn't tolerate it and helped prevent violence there," Barbour said in a statement.
"My point was my town rejected the Ku Klux Klan, but nobody should construe that to mean I think the town leadership were saints, either. Their vehicle, called the 'Citizens Council,' is totally indefensible, as is segregation. It was a difficult and painful era for Mississippi, the rest of the country, and especially African Americans who were persecuted in that time."
But then, as if to confirm his liberal instincts and outrage at racial injustice, Barbour just this week indefinitely suspended the outrageous prison sentences of Jaime and Gladys Scott, sisters who were convicted in 1994 of an armed robbery that yielded $11 -- a crime in which they have consistently denied any involvement.
A judge with a well-documented reputation for racism sentenced both sisters to double-life sentences. They have been imprisoned ever since, despite troubling questions regarding the accuracy of witness testimony, possible coercion, and the sisters’ insistence that they had nothing to do with the crime.
According to Barbour the Compassionate, Gladys Scott’s freedom is contingent on her donating her kidney to sister Jaime, who is suffering from kidney failure and requires regular dialysis.
Let us hope that the ordeal of the Scott sisters will work its way into the new civil rights curriculum. Along with the murders of Emmett Till, Medgar Evers, Andrew Goodman, James Chaney, Michael Schwerner, and hundreds of others.
Conveniently, the Governor’s decision in the Scott case came just a day before his meeting with NAACP President Ben Jealous and Mississippi NAACP State Conference President Derrick Johnson. The NAACP played a major role in persuading Barbour to issue the indefinite suspension of the Scotts’ sentence.
Surely freeing the Scotts is intended to burnish Barbour’s credentials as a fair-minded, color-blind son of the New South. That is seen as a “must do” if Barbour is serious about seeking the Oval Office in 2012. He cannot even be a contender without some of the black and brown votes won by Obama in 2008.
American voters are frequently praised by politicians and journalists alike for their “common sense.” Give an American the facts and he or she will likely make the right decision, the line goes. This is a big part of the narrative of American Exceptionalism that persists and flourishes despite historical facts to the contrary.
American voters may have common sense but they also tend to have very short memories. So we can only live in hope that they will remember to ask the governor where he has been since 1994.
The Scott sisters will have no trouble remembering where they were.
The state of Mississippi, which ranks last in just about everything, is about to be first in something.
And that something is almost as bizarre as who’s making it happen.
The “what” of this story: Starting with the 2011-2012 school curriculum, civil rights will be a required course for all Mississippi students from kindergarten to 12th grade all across the state. State officials believe Mississippi could be the first state to require civil rights studies throughout all grades in its public school systems.
The “who” of this story: None other than Haley Barbour, Mississippi’s flaming civil libertarian governor. For it was this cherubic presidential wanabee who signed the new curriculum into law five years ago.
Barbour told the Associated Press he sees the value in the new curriculum.
"To not know history is to repeat it. And to learn the good things about Mississippi and America and the bad things about Mississippi and America is important for every Mississippian," Barbour said of the new curriculum.
Three cheers for the governor!
And, yes, this is the same Haley Barbour who dove into deep doodoo by rewriting history to transform the White Citizens Council in his hometown, Yazoo City, Miss., from a bunch of segregationist rednecks determined to thwart the orders of the Supreme Court to a community of upright business leaders and parents focused on keeping the Ku Klux Klan out of town.
Barbour told The Weekly Standard he didn't remember the civil rights struggles of the 1950s and 60s as "being that bad."
But then, predictably, the Governor was obliged to back off from singing the praises of the champions of segregation after his remarks caught the attention of the media nationwide.
"When asked why my home town in Mississippi did not suffer the same racial violence when I was a young man that accompanied other towns' integration efforts, I accurately said the community leadership wouldn't tolerate it and helped prevent violence there," Barbour said in a statement.
"My point was my town rejected the Ku Klux Klan, but nobody should construe that to mean I think the town leadership were saints, either. Their vehicle, called the 'Citizens Council,' is totally indefensible, as is segregation. It was a difficult and painful era for Mississippi, the rest of the country, and especially African Americans who were persecuted in that time."
But then, as if to confirm his liberal instincts and outrage at racial injustice, Barbour just this week indefinitely suspended the outrageous prison sentences of Jaime and Gladys Scott, sisters who were convicted in 1994 of an armed robbery that yielded $11 -- a crime in which they have consistently denied any involvement.
A judge with a well-documented reputation for racism sentenced both sisters to double-life sentences. They have been imprisoned ever since, despite troubling questions regarding the accuracy of witness testimony, possible coercion, and the sisters’ insistence that they had nothing to do with the crime.
According to Barbour the Compassionate, Gladys Scott’s freedom is contingent on her donating her kidney to sister Jaime, who is suffering from kidney failure and requires regular dialysis.
Let us hope that the ordeal of the Scott sisters will work its way into the new civil rights curriculum. Along with the murders of Emmett Till, Medgar Evers, Andrew Goodman, James Chaney, Michael Schwerner, and hundreds of others.
Conveniently, the Governor’s decision in the Scott case came just a day before his meeting with NAACP President Ben Jealous and Mississippi NAACP State Conference President Derrick Johnson. The NAACP played a major role in persuading Barbour to issue the indefinite suspension of the Scotts’ sentence.
Surely freeing the Scotts is intended to burnish Barbour’s credentials as a fair-minded, color-blind son of the New South. That is seen as a “must do” if Barbour is serious about seeking the Oval Office in 2012. He cannot even be a contender without some of the black and brown votes won by Obama in 2008.
American voters are frequently praised by politicians and journalists alike for their “common sense.” Give an American the facts and he or she will likely make the right decision, the line goes. This is a big part of the narrative of American Exceptionalism that persists and flourishes despite historical facts to the contrary.
American voters may have common sense but they also tend to have very short memories. So we can only live in hope that they will remember to ask the governor where he has been since 1994.
The Scott sisters will have no trouble remembering where they were.
Monday, December 27, 2010
Who Profits From Fear?
Not since the terrorist attacks of September 11, 2001 has the fear and loathing of Muslims been as virulent, as widespread among Americans, and as close to morphing from hateful rhetoric into life-threatening violence.
It was against that background that TPR correspondent William Fisher sat down to discuss these key issues with Alejandro J. Beutel, government liaison for the Muslim Public Affairs Council (MPAC). MPAC is one of the principal spokespersons for Muslim-Americans and for Muslims who are being persecuted all over the world. But much of MPAC’s focus is Washington and the U.S. Government, where the organization appears to be as sophisticated and well informed as any DC lobbying outfit.
Beutel has authored several academic papers, articles and reports on topics of Islam, international security, religious liberty and democratization. He has also been quoted and featured in various media outlets such as the New York Times, the Christian Science Monitor, the Boston Globe, CNN, Al-Jazeera English, and MSNBC. He is the author of MPAC’s counterterrorism policy paper “Building Bridges to Strengthen America.” and a co-author of MPAC’s immigration policy paper, “Ineffective and Unjust: Fixing Our Broken Immigration System.”
Here are Fisher’s questions and Beutel’s answers, exclusively to TRP.
TPR: Over the past year, there has been a measurable spike in anti-Muslim attitudes among Americans. Why do you think this has happened and why does it represent a long-term problem for the United States and its citizens?
MPAC: Certainly the national discourse on Muslim Americans has been extremely troubling, especially within the last year. There are two primary reasons why there’s been a spike in anti-Muslim views in America.
First is sensationalism in the media. Violence and controversy – which are frequently attached to Muslims – attract viewers. It’s no surprise that Media Tenor, a media analysis group, found considerable anti-Muslim bias in American television news programming.
Second are the profiteers. Various pundits and politicians give biased commentary politically and financially benefit themselves. During the election cycles our community become a political football.
The national discussion on Muslims has become so toxic that it’s clearly had an effect on some peoples’ attitudes and behaviors. The ACLU has done some great tracking of anti-mosque activity around the country, and looking their numbers, almost three-quarters of all their cases have come within the past year.
There have been more reports of hate crimes reported in the media. What especially concerns us are the less visible things like the bullying of Muslim schoolchildren. Growing up in a post-9/11 nation, with these kinds of pressures – on top of the other issues faced by youth -- Muslim American kids and teens could grow up with a strong sense of alienation. That’s extremely detrimental if Muslim communities seek to thrive in the coming years.
TPR: You mentioned earlier that some people “financially profit” from Islamophobia. What do you mean by that?
MPAC: We have noticed that there is a small circuit of connected individuals who essentially engage in for-profit fearmongering. They claim “expertise” on Islam and Muslims, make alarmist statements to ignorant individuals, and sell their “knowledge” whether in the form of books, speaking engagements or even law enforcement training in order to make money.
It’s an extremely lucrative business that caught the attention of the Gannett News Company and the Washington Post. It’s also extremely counterproductive counterterrorism when used as training for law enforcement officials.
TPR: Still, it seems that there is a real issue with radicalization? Why are some young Muslim-Americans becoming radicalized?
MPAC: There is a challenge of extremism that needs to be dealt within Muslim American communities. However that challenge should not be overblown by the media – it gives way too much undue credit and influence to extremists.
As for why some people become extremist, there’s no one factor, nor one single pathway that determines how a person goes down that road. There are multiple, social, political and economic factors that play a big role in driving someone toward extremism. However two things are clear:
First, perceptions over political grievances are more important as a factor than some people are willing to admit. Terrorists try to tap into deep discontent over violent geo-political confrontations abroad like Iraq and Palestine-Israel as well as attacking the notion that America is a welcoming and inclusive nation to Muslims. That’s why people like Bin Ladin and Anwar Al-Awlaki tries to invoke these issues so often in their recruiting pitches.
Second, experts like Marc Sageman point out terrorists usually lack religious knowledge. Ignorance of Islam appears to be a common vulnerability that allows extremists to recruit effectively.
TPR: What can the US (government or private) do to present a true but more compelling narrative than the jihadis?
MPAC: What MPAC calls for in its counterterrorism policy paper, “Building Bridges to Strengthen America” is a division of labor. Law enforcement focuses on defeating criminal activity, communities focus on countering the extremist narratives put forth by Al-Qaeda and others.
Religious knowledge is going to be a key component to countering Al-Qaeda’s extremist narrative. However strengthening the American Muslim identity through civics education and empowerment is important. Fighting for civil rights and civil liberties and joining in coalitions to get involved in other key issues, like immigration, is also necessary. A sense of exclusion, alienation, and disempowerment are central to the recruiting narrative of Al-Qaeda. Strengthening our America’s civil rights strengthens Muslim Americans’ feelings of inclusion and empowerment. It also strengthens our national security.
Taking the ideological fight to the Internet is also important. Much of Al-Qaeda slick propaganda outreach has been via the web. We need to ensure that our “e-dawah” (electronic outreach) is able to effectively challenge extremists’ image of “jihadi cool”. Al-Qaeda and their extremist ilk are ideological dope dealers that poison young Muslims’ minds. We need to make sure that our message is clear and out there is as many places as possible.
TPR: What is your view of the investigative methods being used by the FBI and local law enforcement against Muslims?
I’m more concerned about the legal standards regulating the tactics, rather than the tactics themselves.
Informants and sting operations were effectively used in the 80s and 90s against organized crimes and terrorists like militant Neo-Nazis and violent right-wing anti-government extremists. They were successful without violating America’s rights and liberties.
Asking “are sting operations and informants bad?” is a distraction. The real issue is “how are stings and informants regulated?”
And the answer to that is they’re regulated very poorly. Since 9/11 the Attorney General guidelines governing informants and undercover operations have become loose. Particularly since 2008, they allow wholesale surveillance of entire communities without needing to demonstrate that a particular person is engaging in criminal activity. This has become extremely harmful to our communities, particularly when there are many religious leaders who want to counter extremists’ narratives.
Mainstream leaders are afraid if they try to directly engage and counter extremists’ ideology they too may become the subject of an investigation. Case in point is the Texas arrest of Hosam Maher Smadi. Normally, individuals with extremist views, like Smadi, would be identified by local community members and religious leaders would intervene to prevent him from engaging in violence. Unfortunately that community-based process got disrupted.
We’re also concerned about anecdotal reports we’ve been hearing directly and indirectly, like the case of Foad Farahi, from congregation members about being pressured to become informants for the FBI in order to avoid immigration troubles. Considering that nearly 40% of all Al-Qaeda plots threatening the United States since 9/11 have been foiled with Muslim assistance, this extremely counterproductive. Treating our communities as suspects rather than partners is harmful to national security and it’s un-American.
It was against that background that TPR correspondent William Fisher sat down to discuss these key issues with Alejandro J. Beutel, government liaison for the Muslim Public Affairs Council (MPAC). MPAC is one of the principal spokespersons for Muslim-Americans and for Muslims who are being persecuted all over the world. But much of MPAC’s focus is Washington and the U.S. Government, where the organization appears to be as sophisticated and well informed as any DC lobbying outfit.
Beutel has authored several academic papers, articles and reports on topics of Islam, international security, religious liberty and democratization. He has also been quoted and featured in various media outlets such as the New York Times, the Christian Science Monitor, the Boston Globe, CNN, Al-Jazeera English, and MSNBC. He is the author of MPAC’s counterterrorism policy paper “Building Bridges to Strengthen America.” and a co-author of MPAC’s immigration policy paper, “Ineffective and Unjust: Fixing Our Broken Immigration System.”
Here are Fisher’s questions and Beutel’s answers, exclusively to TRP.
TPR: Over the past year, there has been a measurable spike in anti-Muslim attitudes among Americans. Why do you think this has happened and why does it represent a long-term problem for the United States and its citizens?
MPAC: Certainly the national discourse on Muslim Americans has been extremely troubling, especially within the last year. There are two primary reasons why there’s been a spike in anti-Muslim views in America.
First is sensationalism in the media. Violence and controversy – which are frequently attached to Muslims – attract viewers. It’s no surprise that Media Tenor, a media analysis group, found considerable anti-Muslim bias in American television news programming.
Second are the profiteers. Various pundits and politicians give biased commentary politically and financially benefit themselves. During the election cycles our community become a political football.
The national discussion on Muslims has become so toxic that it’s clearly had an effect on some peoples’ attitudes and behaviors. The ACLU has done some great tracking of anti-mosque activity around the country, and looking their numbers, almost three-quarters of all their cases have come within the past year.
There have been more reports of hate crimes reported in the media. What especially concerns us are the less visible things like the bullying of Muslim schoolchildren. Growing up in a post-9/11 nation, with these kinds of pressures – on top of the other issues faced by youth -- Muslim American kids and teens could grow up with a strong sense of alienation. That’s extremely detrimental if Muslim communities seek to thrive in the coming years.
TPR: You mentioned earlier that some people “financially profit” from Islamophobia. What do you mean by that?
MPAC: We have noticed that there is a small circuit of connected individuals who essentially engage in for-profit fearmongering. They claim “expertise” on Islam and Muslims, make alarmist statements to ignorant individuals, and sell their “knowledge” whether in the form of books, speaking engagements or even law enforcement training in order to make money.
It’s an extremely lucrative business that caught the attention of the Gannett News Company and the Washington Post. It’s also extremely counterproductive counterterrorism when used as training for law enforcement officials.
TPR: Still, it seems that there is a real issue with radicalization? Why are some young Muslim-Americans becoming radicalized?
MPAC: There is a challenge of extremism that needs to be dealt within Muslim American communities. However that challenge should not be overblown by the media – it gives way too much undue credit and influence to extremists.
As for why some people become extremist, there’s no one factor, nor one single pathway that determines how a person goes down that road. There are multiple, social, political and economic factors that play a big role in driving someone toward extremism. However two things are clear:
First, perceptions over political grievances are more important as a factor than some people are willing to admit. Terrorists try to tap into deep discontent over violent geo-political confrontations abroad like Iraq and Palestine-Israel as well as attacking the notion that America is a welcoming and inclusive nation to Muslims. That’s why people like Bin Ladin and Anwar Al-Awlaki tries to invoke these issues so often in their recruiting pitches.
Second, experts like Marc Sageman point out terrorists usually lack religious knowledge. Ignorance of Islam appears to be a common vulnerability that allows extremists to recruit effectively.
TPR: What can the US (government or private) do to present a true but more compelling narrative than the jihadis?
MPAC: What MPAC calls for in its counterterrorism policy paper, “Building Bridges to Strengthen America” is a division of labor. Law enforcement focuses on defeating criminal activity, communities focus on countering the extremist narratives put forth by Al-Qaeda and others.
Religious knowledge is going to be a key component to countering Al-Qaeda’s extremist narrative. However strengthening the American Muslim identity through civics education and empowerment is important. Fighting for civil rights and civil liberties and joining in coalitions to get involved in other key issues, like immigration, is also necessary. A sense of exclusion, alienation, and disempowerment are central to the recruiting narrative of Al-Qaeda. Strengthening our America’s civil rights strengthens Muslim Americans’ feelings of inclusion and empowerment. It also strengthens our national security.
Taking the ideological fight to the Internet is also important. Much of Al-Qaeda slick propaganda outreach has been via the web. We need to ensure that our “e-dawah” (electronic outreach) is able to effectively challenge extremists’ image of “jihadi cool”. Al-Qaeda and their extremist ilk are ideological dope dealers that poison young Muslims’ minds. We need to make sure that our message is clear and out there is as many places as possible.
TPR: What is your view of the investigative methods being used by the FBI and local law enforcement against Muslims?
I’m more concerned about the legal standards regulating the tactics, rather than the tactics themselves.
Informants and sting operations were effectively used in the 80s and 90s against organized crimes and terrorists like militant Neo-Nazis and violent right-wing anti-government extremists. They were successful without violating America’s rights and liberties.
Asking “are sting operations and informants bad?” is a distraction. The real issue is “how are stings and informants regulated?”
And the answer to that is they’re regulated very poorly. Since 9/11 the Attorney General guidelines governing informants and undercover operations have become loose. Particularly since 2008, they allow wholesale surveillance of entire communities without needing to demonstrate that a particular person is engaging in criminal activity. This has become extremely harmful to our communities, particularly when there are many religious leaders who want to counter extremists’ narratives.
Mainstream leaders are afraid if they try to directly engage and counter extremists’ ideology they too may become the subject of an investigation. Case in point is the Texas arrest of Hosam Maher Smadi. Normally, individuals with extremist views, like Smadi, would be identified by local community members and religious leaders would intervene to prevent him from engaging in violence. Unfortunately that community-based process got disrupted.
We’re also concerned about anecdotal reports we’ve been hearing directly and indirectly, like the case of Foad Farahi, from congregation members about being pressured to become informants for the FBI in order to avoid immigration troubles. Considering that nearly 40% of all Al-Qaeda plots threatening the United States since 9/11 have been foiled with Muslim assistance, this extremely counterproductive. Treating our communities as suspects rather than partners is harmful to national security and it’s un-American.
Wednesday, December 22, 2010
ICE Ignores Health of Immigration Detainees
By William Fisher
Clinical depression. Bipolar disorders. Eye surgery. Type 2 diabetes. Hypertension. Abscessed and broken teeth. Severe chest pains. Cancer-like pain.
These are some of the untreated health complaints from men and women held in detention at the behest of U.S. Immigration and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF), where lack of medical care has resulted in severe complications and even death.
SDCF is an ICE facility run by Corrections Corporations of America, Inc. (CCA), the country's largest for-profit correctional services provider. In its lawsuit, the ACLU challenged medical care policies and denial of needed treatment by ICE and the Division of Immigration Health Services, which it says has led to suffering and death among detainees.
After more than two years of legal sparring, ICE officials have now agreed to provide immigration detainees with constitutionally adequate” levels of medical and mental health care. The pledge is part of an agreement settling an American Civil Liberties Union (ACLU) lawsuit charging that deficient care at the San Diego facility caused unnecessary suffering and death.
As part of the settlement, ICE has also agreed to change its policy on medical care that had led to the denial of what ICE deemed to be "non-emergency" care, including heart surgeries and cancer biopsies.
"For the first time, ICE has committed to providing all necessary health care to immigration detainees beyond just emergency care," said cooperating attorney Elizabeth Alexander, former Director of the ACLU National Prison Project and lead counsel on the case.
The stories she tells of what happens to sick detainees are grisly. “One man was brought in with such high blood pressure that if he was not in custody, he would have been sent to an emergency room immediately, “ she told The Public Record. She added: “He was denied treatment and shortly thereafter her suffered a massive heart attack and died.”
She said he was denied treatment because the treatment he needed – a coronary artery bypass – was not considered an ‘emergency’ procedure, the only condition under which care could be provided.
Another detainee had for over a year been denied a biopsy to detect a possible cancer. He died soon afterward.
"For too long, ICE's own policies allowed it to provide detainees with nothing beyond a narrow definition of emergency. This settlement is recognition that it is unconstitutional not to provide people in government custody with all necessary health care," Alexander said.
Originally filed in June 2007 by the ACLU, the ACLU of San Diego and Imperial Counties, and the law firm Cooley LLP, the complaint stated that detainees at SDCF were routinely subjected to long delays before treatment, denied necessary medication for chronic illnesses and refused essential referrals prescribed by medical staff.
The plaintiffs charged that the medical, mental health, dental, and vision care provided to detainees at SDCF was grossly deficient, “causing them great physical suffering and mental anguish, that amounts to punishment in violation of the Fifth Amendment to the United States Constitution.”
Their complaint said, “SDCF medical staff routinely ignore requests for urgent care by detainees with dangerous and painful health problems. Detainees often must submit multiple written sick call requests, over the course of several weeks or months, before they are able to see a doctor or nurse. When they are seen by medical staff, detainees typically receive superficial or inappropriate care, often by staff unqualified to provide proper care. In many cases, detainees receive nothing more than pain medication for their medical problems and are denied necessary treatments and essential diagnostic tests based on official DIHS policies that result in unnecessary pain and suffering, and create a substantial risk of serious injury or death.”
The suit charges that health care for immigration detainees around the country, and at SDCF, is premised on the often-false notion that detention is short-term.
But Attorney Alexander says, “In truth, many detainees spend months or years awaiting a final determination of their immigration case, and are forced to suffer needlessly as a result of defendants’ polices and practices. In some instances, the denial of treatment—and the physical and mental anguish that result—further detainees to waive their legal rights in immigration proceedings in order to expedite their removal from the United States and their release from detention.”
ICE’s actions “deny basic human needs, inflict unnecessary pain and suffering, and put plaintiffs at substantial risk of physical injury, illness, and premature death,” the suit charges.
The lawsuit charged that the refusal of immigration officials to provide appropriate medical care punished immigration detainees in violation of the Fifth Amendment, which prohibits the infliction of unnecessary pain and suffering on federal detainees. Because SDCF holds civil immigrant detainees not serving a criminal sentence, the Fifth Amendment applies to protect their civil rights.
Among the settlement agreement's other provisions are requirements that detainees at SDCF receive health care that meets or exceeds National Commission on Correctional Health Care standards and that an additional full-time psychiatrist and four full-time psychiatric nurses be hired to ensure that detainees receive adequate mental health care.
The settlement also requires immigration officials to remove from existing policies all statements suggesting that detainees will receive only emergency medical services and to include in the same policies explicit statements mandating that detainees shall be provided medical care whenever it is necessary to address a serious medical need.
"The government has a fundamental obligation to provide decent medical care to the people it locks up. The quality of medical care provided to detainees at the San Diego Correctional Facility has been unconstitutional," said David Blair-Loy, Legal Director of the ACLU of San Diego and Imperial Counties. "Immigration officials must ensure that immigration detainees do not suffer or die unnecessarily."
"This is a major step toward ending the unconstitutional and inhumane lack of treatment given to the civil immigration detainees at SDCF," said Anthony M. Stiegler, litigation partner at Cooley LLP. "It is at odds with our American values to allow people to suffer long-term health consequences or even death because authorities refuse to treat them."
The suit also focused on ICE’s policy of “failing to hire sufficient staff to care for the serious dental needs of detainees, failing to provide adequate screening and monitoring of detainees with serious mental health needs and not providing “safe and appropriate housing” for such detainees.
The suit also highlighted the policies and practices of ICE, including:
• failing to maintain sick call request forms together with patient medical records and to respond to sick call requests in a timely manner;
• failing to monitor detainees with chronic conditions;
• failing to maintain an adequate system to provide prescription medication refills and to ensure continuity of treatment;
• failing to make timely referrals for specialty care;
• denying necessary medical care, including dental and vision care, in accordance with official DIHS policies;
• failing to hire sufficient staff to care for the serious dental needs of detainees; and
• failing to provide adequate screening and monitoring of detainees with serious mental health needs and to provide safe and appropriate housing for such detainees
ICE’s problems with its detention facilities go back many years – to the days before the founding of the Department of Homeland Security in 2002, when ICE was still the Immigration and Naturalization Service (INS).
The substandard and often brutal conditions in immigration detention facilities run by the INS are well documented. And immigration experts believe that very little of a material nature has changed since then.
In response to a lawsuit brought by the American Civil Liberties Union (ACLU), the U.S. Department of Homeland Security (DHS) revealed that the government had failed to disclose eleven more deaths in immigration detention facilities.
In April, DHS officials released what they called a comprehensive list of all deaths in detention. That list included a total of 90 individuals. But the government has now admitted to a total of 104 in-custody deaths since fiscal year 2003.
But the ACLU is continuing to express doubt that they now have a complete tally of those who have died while in ICE custody.
David Shapiro, staff attorney with the ACLU National Prison Project, told IPS, "Even after the government's announcement yesterday we still can have no real confidence that each and every death has been accounted for.”
At the immigration detention center in Basile, Louisiana, more than 60 detainees have recently been on hunger strikes to protest conditions Authorities there retaliated by putting the hunger strikers in solitary confinement.
And the Los Angeles detention center has been another target of criticism. Civil rights groups are suing ICE in federal district court for detaining immigrants in “egregious and unsanitary conditions” in that facility.
The lawsuit, filed by the ACLU of Southern California, the National Immigration Law Center, and a private law firm, also charges that the unsanitary conditions have led ICE to deprive immigrants of due-process rights such as access to mail or attorneys while in detention.
The Los Angeles facility, known as “B-18,” is allowed to temporarily house detainees for no more than 12 hours. But in what the ACLU calls “a perverse distortion of its original purpose,” it says immigration officials have kept detainees for weeks by shuttling them to local jails in the evenings and on weekends, and returning them to the facility on the next business day, the lawsuit said.
The lawsuit also alleged that immigration officials often fail to notify detainees that they have the right to obtain release on bail while their cases remain pending.
The lawsuit said B-18 has not provided basic medication besides the lack of sanitary equipment. It charges that some of the facilities to which detainees are shuttled have similar gross deficiencies: Detainees are not permitted to shower in jail. Up to 50 detainees routinely share one open commode, one urinal (or two open commodes) and one sink. At some local jails, overcrowding and vents that blow extremely cold air on the bunks force detainees to sleep on mattresses on the floor. At B-18 and other jails, guards force detainees to remain inside through the entire day, and only permit them to go outside when shuttling them between detention centers. They are not permitted to have any physical recreation.
ICE's city, county and private prisons and jails also house serious criminals. The ACLU says that immigration detainees are mixed in with the general prison population, housed in penal-like facilities for months and sometimes years, with virtually no due process and often without the most basic safeguards such as hearings to assess the need for continued detention. These include asylum seekers, legal immigrants, victims of human trafficking, and immigrants with no criminal records.
The Wall Street Journal has reported that private, for-profit prison companies are preparing for a wave of new business as the economic downturn makes it increasingly difficult for federal and state government officials to build and operate their own jails.
The Federal Bureau of Prisons and several state governments have sent thousands of inmates in recent months to prisons and detention centers run by Corrections Corp. of America, Geo Group Inc. and other private operators, as a crackdown on illegal immigration, a lengthening of mandatory sentences for certain crimes and other factors have overcrowded many government facilities.
The Obama Administration’s newly appointed official supervising ICE, John Morton, has pledged to turn immigration detention into a "truly civil detention system," one focused on safely and humanely holding people accused of civil immigration violations until they are deported or released.
But many immigration experts tell The Public Record that they have as yet seen virtually nothing of the proposed reforms.
These reforms include creating offices and advisory boards to focus on medical care and the management of centers, reviewing contracts with private prisons and local jails, and installing managers at the 23 largest centers to make sure complaints are heard and problems fixed.
He said Centers would face random inspections. Community groups and immigrant advocates would be invited to offer advice and comment. And the government would stop sending parents with children to a notorious prison near Austin, Texas, as it seeks alternatives to the Bush-era tactic of putting whole families behind bars.
Congress is also expressing interest in the immigration detention issue. Legislation has been introduced in both the House and the Senate that would change the laws governing immigration detention and increase oversight and enforceability of detention standards.
Most immigration authorities are recommending legally binding standards governing basic levels of care and conditions inside immigration detention facilities. Simply having the government consolidate its oversight is not enough - there have to be mechanisms in place to hold the government accountable.
Clinical depression. Bipolar disorders. Eye surgery. Type 2 diabetes. Hypertension. Abscessed and broken teeth. Severe chest pains. Cancer-like pain.
These are some of the untreated health complaints from men and women held in detention at the behest of U.S. Immigration and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF), where lack of medical care has resulted in severe complications and even death.
SDCF is an ICE facility run by Corrections Corporations of America, Inc. (CCA), the country's largest for-profit correctional services provider. In its lawsuit, the ACLU challenged medical care policies and denial of needed treatment by ICE and the Division of Immigration Health Services, which it says has led to suffering and death among detainees.
After more than two years of legal sparring, ICE officials have now agreed to provide immigration detainees with constitutionally adequate” levels of medical and mental health care. The pledge is part of an agreement settling an American Civil Liberties Union (ACLU) lawsuit charging that deficient care at the San Diego facility caused unnecessary suffering and death.
As part of the settlement, ICE has also agreed to change its policy on medical care that had led to the denial of what ICE deemed to be "non-emergency" care, including heart surgeries and cancer biopsies.
"For the first time, ICE has committed to providing all necessary health care to immigration detainees beyond just emergency care," said cooperating attorney Elizabeth Alexander, former Director of the ACLU National Prison Project and lead counsel on the case.
The stories she tells of what happens to sick detainees are grisly. “One man was brought in with such high blood pressure that if he was not in custody, he would have been sent to an emergency room immediately, “ she told The Public Record. She added: “He was denied treatment and shortly thereafter her suffered a massive heart attack and died.”
She said he was denied treatment because the treatment he needed – a coronary artery bypass – was not considered an ‘emergency’ procedure, the only condition under which care could be provided.
Another detainee had for over a year been denied a biopsy to detect a possible cancer. He died soon afterward.
"For too long, ICE's own policies allowed it to provide detainees with nothing beyond a narrow definition of emergency. This settlement is recognition that it is unconstitutional not to provide people in government custody with all necessary health care," Alexander said.
Originally filed in June 2007 by the ACLU, the ACLU of San Diego and Imperial Counties, and the law firm Cooley LLP, the complaint stated that detainees at SDCF were routinely subjected to long delays before treatment, denied necessary medication for chronic illnesses and refused essential referrals prescribed by medical staff.
The plaintiffs charged that the medical, mental health, dental, and vision care provided to detainees at SDCF was grossly deficient, “causing them great physical suffering and mental anguish, that amounts to punishment in violation of the Fifth Amendment to the United States Constitution.”
Their complaint said, “SDCF medical staff routinely ignore requests for urgent care by detainees with dangerous and painful health problems. Detainees often must submit multiple written sick call requests, over the course of several weeks or months, before they are able to see a doctor or nurse. When they are seen by medical staff, detainees typically receive superficial or inappropriate care, often by staff unqualified to provide proper care. In many cases, detainees receive nothing more than pain medication for their medical problems and are denied necessary treatments and essential diagnostic tests based on official DIHS policies that result in unnecessary pain and suffering, and create a substantial risk of serious injury or death.”
The suit charges that health care for immigration detainees around the country, and at SDCF, is premised on the often-false notion that detention is short-term.
But Attorney Alexander says, “In truth, many detainees spend months or years awaiting a final determination of their immigration case, and are forced to suffer needlessly as a result of defendants’ polices and practices. In some instances, the denial of treatment—and the physical and mental anguish that result—further detainees to waive their legal rights in immigration proceedings in order to expedite their removal from the United States and their release from detention.”
ICE’s actions “deny basic human needs, inflict unnecessary pain and suffering, and put plaintiffs at substantial risk of physical injury, illness, and premature death,” the suit charges.
The lawsuit charged that the refusal of immigration officials to provide appropriate medical care punished immigration detainees in violation of the Fifth Amendment, which prohibits the infliction of unnecessary pain and suffering on federal detainees. Because SDCF holds civil immigrant detainees not serving a criminal sentence, the Fifth Amendment applies to protect their civil rights.
Among the settlement agreement's other provisions are requirements that detainees at SDCF receive health care that meets or exceeds National Commission on Correctional Health Care standards and that an additional full-time psychiatrist and four full-time psychiatric nurses be hired to ensure that detainees receive adequate mental health care.
The settlement also requires immigration officials to remove from existing policies all statements suggesting that detainees will receive only emergency medical services and to include in the same policies explicit statements mandating that detainees shall be provided medical care whenever it is necessary to address a serious medical need.
"The government has a fundamental obligation to provide decent medical care to the people it locks up. The quality of medical care provided to detainees at the San Diego Correctional Facility has been unconstitutional," said David Blair-Loy, Legal Director of the ACLU of San Diego and Imperial Counties. "Immigration officials must ensure that immigration detainees do not suffer or die unnecessarily."
"This is a major step toward ending the unconstitutional and inhumane lack of treatment given to the civil immigration detainees at SDCF," said Anthony M. Stiegler, litigation partner at Cooley LLP. "It is at odds with our American values to allow people to suffer long-term health consequences or even death because authorities refuse to treat them."
The suit also focused on ICE’s policy of “failing to hire sufficient staff to care for the serious dental needs of detainees, failing to provide adequate screening and monitoring of detainees with serious mental health needs and not providing “safe and appropriate housing” for such detainees.
The suit also highlighted the policies and practices of ICE, including:
• failing to maintain sick call request forms together with patient medical records and to respond to sick call requests in a timely manner;
• failing to monitor detainees with chronic conditions;
• failing to maintain an adequate system to provide prescription medication refills and to ensure continuity of treatment;
• failing to make timely referrals for specialty care;
• denying necessary medical care, including dental and vision care, in accordance with official DIHS policies;
• failing to hire sufficient staff to care for the serious dental needs of detainees; and
• failing to provide adequate screening and monitoring of detainees with serious mental health needs and to provide safe and appropriate housing for such detainees
ICE’s problems with its detention facilities go back many years – to the days before the founding of the Department of Homeland Security in 2002, when ICE was still the Immigration and Naturalization Service (INS).
The substandard and often brutal conditions in immigration detention facilities run by the INS are well documented. And immigration experts believe that very little of a material nature has changed since then.
In response to a lawsuit brought by the American Civil Liberties Union (ACLU), the U.S. Department of Homeland Security (DHS) revealed that the government had failed to disclose eleven more deaths in immigration detention facilities.
In April, DHS officials released what they called a comprehensive list of all deaths in detention. That list included a total of 90 individuals. But the government has now admitted to a total of 104 in-custody deaths since fiscal year 2003.
But the ACLU is continuing to express doubt that they now have a complete tally of those who have died while in ICE custody.
David Shapiro, staff attorney with the ACLU National Prison Project, told IPS, "Even after the government's announcement yesterday we still can have no real confidence that each and every death has been accounted for.”
At the immigration detention center in Basile, Louisiana, more than 60 detainees have recently been on hunger strikes to protest conditions Authorities there retaliated by putting the hunger strikers in solitary confinement.
And the Los Angeles detention center has been another target of criticism. Civil rights groups are suing ICE in federal district court for detaining immigrants in “egregious and unsanitary conditions” in that facility.
The lawsuit, filed by the ACLU of Southern California, the National Immigration Law Center, and a private law firm, also charges that the unsanitary conditions have led ICE to deprive immigrants of due-process rights such as access to mail or attorneys while in detention.
The Los Angeles facility, known as “B-18,” is allowed to temporarily house detainees for no more than 12 hours. But in what the ACLU calls “a perverse distortion of its original purpose,” it says immigration officials have kept detainees for weeks by shuttling them to local jails in the evenings and on weekends, and returning them to the facility on the next business day, the lawsuit said.
The lawsuit also alleged that immigration officials often fail to notify detainees that they have the right to obtain release on bail while their cases remain pending.
The lawsuit said B-18 has not provided basic medication besides the lack of sanitary equipment. It charges that some of the facilities to which detainees are shuttled have similar gross deficiencies: Detainees are not permitted to shower in jail. Up to 50 detainees routinely share one open commode, one urinal (or two open commodes) and one sink. At some local jails, overcrowding and vents that blow extremely cold air on the bunks force detainees to sleep on mattresses on the floor. At B-18 and other jails, guards force detainees to remain inside through the entire day, and only permit them to go outside when shuttling them between detention centers. They are not permitted to have any physical recreation.
ICE's city, county and private prisons and jails also house serious criminals. The ACLU says that immigration detainees are mixed in with the general prison population, housed in penal-like facilities for months and sometimes years, with virtually no due process and often without the most basic safeguards such as hearings to assess the need for continued detention. These include asylum seekers, legal immigrants, victims of human trafficking, and immigrants with no criminal records.
The Wall Street Journal has reported that private, for-profit prison companies are preparing for a wave of new business as the economic downturn makes it increasingly difficult for federal and state government officials to build and operate their own jails.
The Federal Bureau of Prisons and several state governments have sent thousands of inmates in recent months to prisons and detention centers run by Corrections Corp. of America, Geo Group Inc. and other private operators, as a crackdown on illegal immigration, a lengthening of mandatory sentences for certain crimes and other factors have overcrowded many government facilities.
The Obama Administration’s newly appointed official supervising ICE, John Morton, has pledged to turn immigration detention into a "truly civil detention system," one focused on safely and humanely holding people accused of civil immigration violations until they are deported or released.
But many immigration experts tell The Public Record that they have as yet seen virtually nothing of the proposed reforms.
These reforms include creating offices and advisory boards to focus on medical care and the management of centers, reviewing contracts with private prisons and local jails, and installing managers at the 23 largest centers to make sure complaints are heard and problems fixed.
He said Centers would face random inspections. Community groups and immigrant advocates would be invited to offer advice and comment. And the government would stop sending parents with children to a notorious prison near Austin, Texas, as it seeks alternatives to the Bush-era tactic of putting whole families behind bars.
Congress is also expressing interest in the immigration detention issue. Legislation has been introduced in both the House and the Senate that would change the laws governing immigration detention and increase oversight and enforceability of detention standards.
Most immigration authorities are recommending legally binding standards governing basic levels of care and conditions inside immigration detention facilities. Simply having the government consolidate its oversight is not enough - there have to be mechanisms in place to hold the government accountable.
Tuesday, December 21, 2010
U.S. Senate: Double-Dip Roller-Coaster
By William Fisher
It was a bittersweet day in the US Senate Saturday.
For some, it was a day of joy and high-fives. For others, it was a day of anger, frustration and disbelief.
The anger and frustration came first, when the Senators deep-sixed a bill that would've provided a conditional path to citizenship for the children of illegal immigrants.
Senate Democrats failed to gather the 60 votes required to overcome a Republican filibuster on the seemingly benign DREAM Act. DREAM stands for “Development, Relief and Education of Alien Minors Act.” The House of Representatives passed this bill earlier this month.
The final vote to end debate and put the measure to a floor vote was 55-41, Three Republicans — Sens. Lisa Murkowski of Alaska, Robert Bennett of Utah and Richard Lugar of Indiana — voted with the Democrats. But five Democratic senators — Mark Pryor of Arkansas, Kay Hagan of North Carolina, Ben Nelson of Nebraska and Jon Tester and Max Baucus of Montana — moved to the Republican side of the aisle. Sen. Joe Manchin, Democrat of West Virginia, who had announced his opposition to the bill, was not present for the vote.
If Majority Leader Harry Reid had been able to hold his caucus together, these six Democrats would have made the difference between debate and silence.
Bottom line is that, net, the defections from the GOP were not enough to put together the 60 votes needed to break the Republican filibuster.
The DREAM Act has been rattling around Congress since 2001. It was re-introduced in a rare show of bipartisanship by Senators Dick Durbin, Democrat of Illinois, and then-Senator Chuck Hegel of Nebraska and Richard Lugar of Indiana, both Republicans.
The bill would have provided certain illegal and deportable alien students a long and windy path toward US citizenship. Eligible would have been those who graduates from US high schools, were of good moral character, arrived in the U.S. illegally as minors, and had been in the country continuously and illegally for at least five years prior to the bill's enactment.
These achievements would have then given these young people the opportunity to earn conditional permanent residency if they completed two years in the military or two years at a four- year institution of higher learning.
The students would obtain temporary residency for a six year period.
President Barack Obama, who promised in the 2008 presidential campaign to revamp U.S. immigration laws, called Saturday's vote "incredibly disappointing."
And looking at the faces of the young people – they called themselves the DREAMers –who had been sitting in the Senate gallery, and earlier had been for weeks aggressively lobbying Congress persons, staging marches in the nation’s Capitol and throughout the country – looking at the faces of these youngsters, one could read expressions of disbelief, anger, frustration, bewilderment.
They seemed to be asking, “Why would they do this to us? After all, we’re not terrorists. We’re Americans. For most of us, America is the only country we have ever known. Where are we supposed to go now?”
Virtually all human and civil rights groups and immigration and education experts were outspokenly supportive of the DREAM Act.
Its defeat is a major blow to President Obama and an ominous harbinger of the chances that Congress will be able to pass anything that looks remotely like comprehensive immigration reform when Republican assume control of the House of Representatives in January.
The second major vote during Saturday’s rare Senate session was on repeal of the discriminatory and controversial “Don’t Ask, Don’t Tell” policy.
Principal spokesman for opponents of the measure was Republican Senator John McCain of Arizona, a much-decorated former military officer and presidential candidate in 2008. McCain said he was deeply concerned about “troop morale and unit cohesion” if gay men and lesbians were allowed to serve openly.
He cited testimony from the various service chiefs, who said in a Congressional hearing last week that they were opposed to the repeal but would follow orders from the Commander-in-Chief and implement the policy of that was the will of the civilian leadership. Repeal has been endorsed by Defense Secretary Robert Gates and by Admiral Mike Mullen, chairman of the Joint Chiefs of Staff.
Today is a sad day," McCain said.
Before recommending repeal, the Defense Department carried out an extensive survey of how service members currently in uniform would feel about having openly gay or lesbian colleagues. A high proportion said it would have little or no effect on their performance. The figure was even higher among troops currently serving in units known to have gay or lesbian members.
In a historic vote, the Senate voted 56-43 to enact legislation that would repeal DADT, sending the historic bill to the president’s desk for signature. The “Don’t Ask, Don’t Tell” Repeal Act of 2010 (H.R. 2965) was passed in the House of Representatives last Wednesday.
“Don't Ask, Don't Tell” was passed into law under President Bill Clinton in 1993 and, since 1994, more than 14,000 qualified and committed service members, both men and women, have been discharged under the policy simply on the basis of their sexual orientation. Gay members of the armed forces could continue to serve only if they kept their sexual orientation a secret.
The momentum to repeal “Don’t Ask, Don’t Tell” has been building for nearly a year with President Obama calling for its repeal in his State of the Union address and some of the highest-ranking members of the military calling for the policy to end.
Laura W. Murphy, Director of the Washington Legislative Office of the American Civil Liberties Union (ACLU), said in a statement, “For nearly two decades, gay and lesbian service members have been forced to hide who they are in order to serve their country. That will soon end. The significance of this vote should not be underestimated and should serve as confirmation that we should not and cannot codify discrimination into our laws.”
She added, “‘Don’t Ask, Don’t Tell’ had no place in a country where we value the equal treatment of all our citizens. We urge President Obama to swiftly sign this bill and ensure that our gay and lesbian service members can serve their country with honesty and dignity.”
Virtually all civil liberties advocates campaigned for repeal.
Their efforts – and those of a much larger and well-organized campaign favoring repeal, paid off on Saturday, when, by a vote of 63 to 33, supporters of repeal mustered the 60 votes needed to “invoke cloture” – Congress-speak for cutting off debate.
Those numbers made virtually certain that there was enough support in the Senate to bring the measure to a final vote.
In the ensuing debate, the remarks of Senators on both sides of the aisle provide some insight into the flavor of the dialogue.
“I don’t care who you love,” Senator Ron Wyden, Democrat of Oregon, said as the debate opened. “If you love this country enough to risk your life for it, you shouldn’t have to hide who you are.”
“This isn’t broke,” Senator James M. Inhofe, Republican of Oklahoma, said of about the policy. “It is working very well.”
“In the middle of a military conflict, is not the time to do it,” said Senator Saxby Chambliss, Republican of Georgia.
Speaking of the 14,000 members of the armed forces who had been forced to leave the ranks under the policy, Senator Joseph Lieberman, Independent of Connecticut and a staunch supporter of repeal, commented, “What a waste.”
"As Barry Goldwater said, 'You don't have to be straight to shoot straight,' " said Senate Majority Leader Harry M. Reid of Nevada, referring to the late GOP senator from Arizona.
Sen. John McCain (R-Arizona.), a leading opponent of the measure, said liberals with no military experience were pushing a social agenda on troops during wartime despite reservations among the fighting forces.
And Senator Carl Levin, Democrat of Michigan and chairman of the Armed Services Committee, said, “I’m not here for partisan reasons. I’m here because men and women wearing the uniform of the United States who are gay and lesbian have died for this country, because gay and lesbian men and women wearing the uniform of this country have their lives on the line right now.”
The Senate will now send the bill to President Obama for his signature. Repeal would not take effect immediately. Some 60 days are being allowed for other procedural steps.
More importantly, the bill requires repeal to become effective only after the defense secretary determines that policies are in place to carry out the repeal “consistent with military standards for readiness, effectiveness, unit cohesion, and recruiting and retention.”
Repeal of DADT represents a major win for the White House. The New York Times reported that activists were saying it represented an emotional moment for members of the gay community nationwide.
Votes for repeal were far more bipartisan than is customary in Washington these days. The bill's co-sponsor is Maine Republican Sen. Susan Collins. Six other Republicans joined the Democrats to vote for repeal -- George V. Voinovich of Ohio, Mark Steven Kirk, newly elected from Illinois, Scott Brown of Massachusetts, Lisa Murkowski of Alaska, Olympia J. Snowe of Maine, John Ensign of Nevada, and – in a surprise move -- Sen. Richard Burr of North Carolina.
Only a week ago, the effort to repeal the “don’t ask, don’t tell” policy seemed to be dead and in danger of fading for at least two years with Republicans about to take control of the House. The provision eliminating the ban was initially included in a broader Pentagon policy bill, and Republican backers of repeal had refused to join in cutting off a filibuster against the underlying bill because of objections over the ability to debate the measure.
Remarks from two Senators probably best sum up the feelings on both sides of the debate:
Republican John McCain said, “There will be high fives all over the liberal bastions of America, and we’ll see the talk shows tomorrow, a bunch of people talking about how great it is. Most of them have never served in the military or maybe not even known someone in the military.”
Democratic Senator Barbara Boxer of California, referring to individuals and organizations who had fought for repeal for many years, said, “We have come a long way because people put their fear aside and they came forward and they told their stories. They took the light and they focused it on the truth. We've come a long way because of their families who loved them and have spoken out," Boxer said. "This is America at its best, when we open our arms to equality, freedom and justice."
I suppose one would have to be a true down-in-the-weeds Congress-watcher to understand what happened in the Senate on Saturday. Here we have a seemingly benign, relatively simple, compassionate, common-sense, low-cost piece of legislation going down in flames. And crashing and burning with tens of thousands of kids who were looking to DREAM to help them chart their future. And doing so just before Christmas.
And in DADT, we have an incredibly complex piece of legislation that will doubtless present both civilian and military leadership, as well as the President, with a host of challenges. Change within the Armed Services is never easy to achieve. This particular change pits the status quo against shifting social values and standards.
As Harry Truman’s integration of the military was much harder than its supporters expected, and took far longer than its supporters expected, it finally happened. So now we all have to hope that the leaders of our military – and all of its members – will be blessed with the wisdom to manage this transition wisely.
Because it’s time to do the right thing.
It was a bittersweet day in the US Senate Saturday.
For some, it was a day of joy and high-fives. For others, it was a day of anger, frustration and disbelief.
The anger and frustration came first, when the Senators deep-sixed a bill that would've provided a conditional path to citizenship for the children of illegal immigrants.
Senate Democrats failed to gather the 60 votes required to overcome a Republican filibuster on the seemingly benign DREAM Act. DREAM stands for “Development, Relief and Education of Alien Minors Act.” The House of Representatives passed this bill earlier this month.
The final vote to end debate and put the measure to a floor vote was 55-41, Three Republicans — Sens. Lisa Murkowski of Alaska, Robert Bennett of Utah and Richard Lugar of Indiana — voted with the Democrats. But five Democratic senators — Mark Pryor of Arkansas, Kay Hagan of North Carolina, Ben Nelson of Nebraska and Jon Tester and Max Baucus of Montana — moved to the Republican side of the aisle. Sen. Joe Manchin, Democrat of West Virginia, who had announced his opposition to the bill, was not present for the vote.
If Majority Leader Harry Reid had been able to hold his caucus together, these six Democrats would have made the difference between debate and silence.
Bottom line is that, net, the defections from the GOP were not enough to put together the 60 votes needed to break the Republican filibuster.
The DREAM Act has been rattling around Congress since 2001. It was re-introduced in a rare show of bipartisanship by Senators Dick Durbin, Democrat of Illinois, and then-Senator Chuck Hegel of Nebraska and Richard Lugar of Indiana, both Republicans.
The bill would have provided certain illegal and deportable alien students a long and windy path toward US citizenship. Eligible would have been those who graduates from US high schools, were of good moral character, arrived in the U.S. illegally as minors, and had been in the country continuously and illegally for at least five years prior to the bill's enactment.
These achievements would have then given these young people the opportunity to earn conditional permanent residency if they completed two years in the military or two years at a four- year institution of higher learning.
The students would obtain temporary residency for a six year period.
President Barack Obama, who promised in the 2008 presidential campaign to revamp U.S. immigration laws, called Saturday's vote "incredibly disappointing."
And looking at the faces of the young people – they called themselves the DREAMers –who had been sitting in the Senate gallery, and earlier had been for weeks aggressively lobbying Congress persons, staging marches in the nation’s Capitol and throughout the country – looking at the faces of these youngsters, one could read expressions of disbelief, anger, frustration, bewilderment.
They seemed to be asking, “Why would they do this to us? After all, we’re not terrorists. We’re Americans. For most of us, America is the only country we have ever known. Where are we supposed to go now?”
Virtually all human and civil rights groups and immigration and education experts were outspokenly supportive of the DREAM Act.
Its defeat is a major blow to President Obama and an ominous harbinger of the chances that Congress will be able to pass anything that looks remotely like comprehensive immigration reform when Republican assume control of the House of Representatives in January.
The second major vote during Saturday’s rare Senate session was on repeal of the discriminatory and controversial “Don’t Ask, Don’t Tell” policy.
Principal spokesman for opponents of the measure was Republican Senator John McCain of Arizona, a much-decorated former military officer and presidential candidate in 2008. McCain said he was deeply concerned about “troop morale and unit cohesion” if gay men and lesbians were allowed to serve openly.
He cited testimony from the various service chiefs, who said in a Congressional hearing last week that they were opposed to the repeal but would follow orders from the Commander-in-Chief and implement the policy of that was the will of the civilian leadership. Repeal has been endorsed by Defense Secretary Robert Gates and by Admiral Mike Mullen, chairman of the Joint Chiefs of Staff.
Today is a sad day," McCain said.
Before recommending repeal, the Defense Department carried out an extensive survey of how service members currently in uniform would feel about having openly gay or lesbian colleagues. A high proportion said it would have little or no effect on their performance. The figure was even higher among troops currently serving in units known to have gay or lesbian members.
In a historic vote, the Senate voted 56-43 to enact legislation that would repeal DADT, sending the historic bill to the president’s desk for signature. The “Don’t Ask, Don’t Tell” Repeal Act of 2010 (H.R. 2965) was passed in the House of Representatives last Wednesday.
“Don't Ask, Don't Tell” was passed into law under President Bill Clinton in 1993 and, since 1994, more than 14,000 qualified and committed service members, both men and women, have been discharged under the policy simply on the basis of their sexual orientation. Gay members of the armed forces could continue to serve only if they kept their sexual orientation a secret.
The momentum to repeal “Don’t Ask, Don’t Tell” has been building for nearly a year with President Obama calling for its repeal in his State of the Union address and some of the highest-ranking members of the military calling for the policy to end.
Laura W. Murphy, Director of the Washington Legislative Office of the American Civil Liberties Union (ACLU), said in a statement, “For nearly two decades, gay and lesbian service members have been forced to hide who they are in order to serve their country. That will soon end. The significance of this vote should not be underestimated and should serve as confirmation that we should not and cannot codify discrimination into our laws.”
She added, “‘Don’t Ask, Don’t Tell’ had no place in a country where we value the equal treatment of all our citizens. We urge President Obama to swiftly sign this bill and ensure that our gay and lesbian service members can serve their country with honesty and dignity.”
Virtually all civil liberties advocates campaigned for repeal.
Their efforts – and those of a much larger and well-organized campaign favoring repeal, paid off on Saturday, when, by a vote of 63 to 33, supporters of repeal mustered the 60 votes needed to “invoke cloture” – Congress-speak for cutting off debate.
Those numbers made virtually certain that there was enough support in the Senate to bring the measure to a final vote.
In the ensuing debate, the remarks of Senators on both sides of the aisle provide some insight into the flavor of the dialogue.
“I don’t care who you love,” Senator Ron Wyden, Democrat of Oregon, said as the debate opened. “If you love this country enough to risk your life for it, you shouldn’t have to hide who you are.”
“This isn’t broke,” Senator James M. Inhofe, Republican of Oklahoma, said of about the policy. “It is working very well.”
“In the middle of a military conflict, is not the time to do it,” said Senator Saxby Chambliss, Republican of Georgia.
Speaking of the 14,000 members of the armed forces who had been forced to leave the ranks under the policy, Senator Joseph Lieberman, Independent of Connecticut and a staunch supporter of repeal, commented, “What a waste.”
"As Barry Goldwater said, 'You don't have to be straight to shoot straight,' " said Senate Majority Leader Harry M. Reid of Nevada, referring to the late GOP senator from Arizona.
Sen. John McCain (R-Arizona.), a leading opponent of the measure, said liberals with no military experience were pushing a social agenda on troops during wartime despite reservations among the fighting forces.
And Senator Carl Levin, Democrat of Michigan and chairman of the Armed Services Committee, said, “I’m not here for partisan reasons. I’m here because men and women wearing the uniform of the United States who are gay and lesbian have died for this country, because gay and lesbian men and women wearing the uniform of this country have their lives on the line right now.”
The Senate will now send the bill to President Obama for his signature. Repeal would not take effect immediately. Some 60 days are being allowed for other procedural steps.
More importantly, the bill requires repeal to become effective only after the defense secretary determines that policies are in place to carry out the repeal “consistent with military standards for readiness, effectiveness, unit cohesion, and recruiting and retention.”
Repeal of DADT represents a major win for the White House. The New York Times reported that activists were saying it represented an emotional moment for members of the gay community nationwide.
Votes for repeal were far more bipartisan than is customary in Washington these days. The bill's co-sponsor is Maine Republican Sen. Susan Collins. Six other Republicans joined the Democrats to vote for repeal -- George V. Voinovich of Ohio, Mark Steven Kirk, newly elected from Illinois, Scott Brown of Massachusetts, Lisa Murkowski of Alaska, Olympia J. Snowe of Maine, John Ensign of Nevada, and – in a surprise move -- Sen. Richard Burr of North Carolina.
Only a week ago, the effort to repeal the “don’t ask, don’t tell” policy seemed to be dead and in danger of fading for at least two years with Republicans about to take control of the House. The provision eliminating the ban was initially included in a broader Pentagon policy bill, and Republican backers of repeal had refused to join in cutting off a filibuster against the underlying bill because of objections over the ability to debate the measure.
Remarks from two Senators probably best sum up the feelings on both sides of the debate:
Republican John McCain said, “There will be high fives all over the liberal bastions of America, and we’ll see the talk shows tomorrow, a bunch of people talking about how great it is. Most of them have never served in the military or maybe not even known someone in the military.”
Democratic Senator Barbara Boxer of California, referring to individuals and organizations who had fought for repeal for many years, said, “We have come a long way because people put their fear aside and they came forward and they told their stories. They took the light and they focused it on the truth. We've come a long way because of their families who loved them and have spoken out," Boxer said. "This is America at its best, when we open our arms to equality, freedom and justice."
I suppose one would have to be a true down-in-the-weeds Congress-watcher to understand what happened in the Senate on Saturday. Here we have a seemingly benign, relatively simple, compassionate, common-sense, low-cost piece of legislation going down in flames. And crashing and burning with tens of thousands of kids who were looking to DREAM to help them chart their future. And doing so just before Christmas.
And in DADT, we have an incredibly complex piece of legislation that will doubtless present both civilian and military leadership, as well as the President, with a host of challenges. Change within the Armed Services is never easy to achieve. This particular change pits the status quo against shifting social values and standards.
As Harry Truman’s integration of the military was much harder than its supporters expected, and took far longer than its supporters expected, it finally happened. So now we all have to hope that the leaders of our military – and all of its members – will be blessed with the wisdom to manage this transition wisely.
Because it’s time to do the right thing.
Monday, December 20, 2010
PROMISES TO KEEP
By William Fisher
“Diplomatic assurances” -- promises not to torture -- are sought by a government when it is transferring a detainee to the custody of another government. In the past, such assurances have often proved worthless; they have come from countries that have a long history of brutality against prisoners.
And, according to a new report from the Columbia University law school’s Human Rights Clinic, the U.S. is continuing to follow the same protocol. The result may well be further prisoner abuse because the government’s approach to transfers lacks institutional safeguards –“transparency, judicial review and systematic monitoring.”
For that reason, many human rights experts argue that a crucial part of the “war on terror” is being waged with “blissful ignorance.”
The report – “Promises to Keep” – says the U.S. may send a terror suspect to another country with a supposed promise that the detainee will be treated humanely. “Not surprisingly, it often doesn’t work out that way. The government knows this, and yet it’s still trying to move detainees out of the country.”
The report was written by Naureen Shah, a counterterrorism policy expert and lawyer at Columbia.
At his 2009 confirmation hearing to become director of the Central Intelligence Agency (CIA), Leon Panetta told Congress that, “using renditions, we may very well direct individuals to third countries.” Referring to past cases where assurances were used, Panetta said: “I will seek the same kind of assurances that they will not be treated inhumanely. I intend to use the State Department to assure that those assurances are, in fact, implemented and stood by those countries.”
But that is precisely the procedure that has been followed since the Clinton Administration – and which has produced some of the most heinous examples of torture and even death in detention.
The report notes that the Obama administration “initially signaled an interest in reforming its transfer and assurances practices. An interagency task force established in January 2009 recommended better monitoring and State Department involvement in evaluating assurances in all cases.” But it adds that “the government has not announced any steps to implement its recommendations.”
It notes that, “as this report went to print, the offices of Inspector General of the State Department, Department of Homeland Security and Department of Defense were in the process of reviewing assurances practice.”
While the government has suggested that it has wide discretion over how and when to use assurances, as well as whether to disclose that use, “it has provided next to no information about its minimum standards and
protocols for negotiating assurances, monitoring returned individuals and responding to allegations of abuse.”
“It has refused to acknowledge past breaches of assurances or provide redress to victims. In litigation, it has argued that disclosure would jeopardize US foreign policy interests and the government’s ability to negotiate assurances in future cases,” the report adds.
The report says the “strongest message” from the 2010 Wikileaks situation is that “US diplomats take protection against torture seriously but that individual efforts are not sufficient.”
It notes that “from the trickle of cables released on Wikileaks, more details are emerging, documenting both the scrupulous efforts of individual diplomats and the specific failures of particular assurances. While more details of specific cases will certainly emerge, thus far the leaks simply reinforce the need for clear policies and broader transparency to ensure appropriate vetting and accountability.”
Several cables released in December 2010 reference the efforts by the US to transfer detainees from Guantanamo, the report says. “The cables show how the US resisted Chinese and Tunisian diplomatic pressure to repatriate their nationals because of concerns that the detainees would be mistreated.”
“The US even had to resist Chinese and Tunisian pressures on other governments not to accept their nationals for resettlement,” the report says, adding, “One cable shows the US ambassador to Tunisia acknowledging credible reports that an already repatriated Tunisian national was mistreated. The ambassador also rejects Tunisia’s claims that the International Committee of the Red Cross had access to Tunisian prisons.”
Other leaked cables reveal that US diplomats offered financial and political incentives to foreign governments to safely resettle Guantanamo detainees, including a rejected “incentive package” of USD $3 million and promises of US help in obtaining International Monetary Fund assistance, the report claims.
The potential recipient governments appeared most concerned about public reaction in their own countries or foreign policy considerations such as risking China’s ire for resettling its nationals held at Guantanamo. But “none expressed concern about judicial review or public scrutiny of the assurances.”
The report notes that leading human rights advocates have condemned the practice of relying on assurances. “According to them, assurances are inherently unreliable in countries that have already demonstrated their willingness to torture in violation of local and international law.”
But the report concludes that “whatever the doubts about their ultimate effectiveness…there are clearly better and worse ways of employing assurances: they can serve as the cynical, legalistic veneer to a conscious abdication of responsibility, or a sincere effort to diminish the likelihood of an individual’s mistreatment.”
“From the past decade, there is evidence of the cynical, the sincere and much that falls in between, where mistakes or incompetence make the motives irrelevant,” the report says.
“In their first known use after 9/11, Sweden obtained vague assurances from Egypt that it would respect the rights of two asylum seekers returned to Egypt by a team of masked US commandos. Swedish diplomats waited five weeks before checking on the detainees and, then, did so in the presence of prison officials,” the report declares.
“For the US the first government acknowledgment of assurances after 9/11 was made to deflect responsibility for the alleged torture of Maher Arar, a Canadian citizen whom the US transferred to Syria. Years later, it emerged that the State Department had dismissed any concerns about the transfer without bothering to review the conditions.”
In the Arar case, the State Department failed to play any significant role, the report says. In summary proceedings, Arar, a Canadian citizen, was removed from the US and ultimately transferred to the custody of Syrian intelligence officials, who tortured Arar despite providing assurances to the US government.
Though the State Department denied involvement in the case, then-Deputy Secretary of State Richard Armitage acknowledged that he had a “brief—only two to three minutes, and casual” conversation about Arar with then-Deputy Attorney General Larry Thompson, who asked whether he had any “foreign policy objections” to removing Arar to Syria. According to Armitage, his “only concern was whether Mr. Arar was a United States citizen,” adding that “Syria was helping us with Al Qaeda.”
And in the 2006 extradition of Kulbir Singh Barapind, a Sikh separatist who feared torture by local police, by whom he had previously been tortured, the “US State Department made passing reference to an earlier case where there had been credible reports of torture.“ The Department was “unable authoritatively to confirm” whether the individuals were tortured.
“The State Department’s analysis did not address whether the police officers who previously tortured Barapind still held positions of authority or whether the central government authorities giving the assurances had the ability to supervise or control the state police. Instead, the State Department relied on the existence of Indian laws prohibiting torture—laws that were in place when Barapind was previously tortured,” the report declared.
The report said, “These examples could be treated as unfortunate gaffes committed by pressured officials operating in a difficult environment without clear instructions. Both Canada and Sweden were forced to respond robustly. A public inquiry in Canada led the government to apologize to Arar and pay CAD $10.5 million in damages. The early disclosures have led US allies to expose the practice to public debate and judicial scrutiny.”
But the United States has never publicly acknowledged fault or a need to improve, the report notes, adding:
“The US continues to maintain broad secrecy about its current practice while insisting that others trust it to respect the law and do the right thing. The US government hints publicly at improvements in internal processes while claiming that frank disclosure and judicial review—now extensive in Europe and Canada—are unnecessary and counterproductive.
Disclosing the process or text of assurances would harm diplomatic relations, according to US officials, and judicial review would undermine the ability of the US government to ‘speak with one voice,’ the report says.
Diplomatic assurances are also used in some immigration cases. In those cases, the US does not acknowledge the right of the individual to challenge the assurances, the report says.
In one immigration case, the report details, the government terminated the “deferral of removal” of Sami Khouzam, a Coptic Christian facing persecution in Egypt, on the basis of Egyptian assurances it received in 2004. But it did not inform Khouzam of the termination of his status—and his loss of protection—until May 2007, three days before he was arrested and detained in preparation for imminent removal. In 2008, the Third Circuit Court of Appeals held that by failing to provide Khouzam any opportunity to challenge his removal, the government violated his due process rights.
Rigorous and systematic State Department scrutiny is a crucial safeguard, particularly in the absence of judicial review, the report suggests.
“At least since 2005, the US government has solicited assurances of humane treatment in the transfer of every individual out of Guantanamo. It has declined to repatriate detainees to home countries due to their records on torture or reports of mistreatment to previously returned detainees, including China, Syria, Tunisia and Uzbekistan. In the case of China and Tunisia, it has resisted intense diplomatic pressure by foreign diplomats to repatriate their nationals,” the report notes, but adds:
“Publicly, the government has refused to acknowledge cases of breached assurances, including its failure to ensure effective post-return monitoring, or foreclose the option of repatriating nationals to home countries with records of torture. This leaves the 33 Guantanamo detainees who have been cleared for release but who face such repatriation in limbo.”
“Even as the government seeks to negotiate their resettlement in safe third countries, in courts, it has argued that its authority to repatriate them is absolute and unfettered by judicial review, as long as it declares the transfer compatible with US policy against torture,” the report says.
In July 2010, the US Supreme Court acceded to government arguments against judicial review, refusing to block the transfers of two Algerian detainees who feared mistreatment by government authorities or extremists. UN experts Manfred Nowak and Martin Scheinin condemned the decision, saying they were “extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin.”
“This could become the first involuntary transfers of Guantanamo detainees of the Obama administration,” the UN experts said. “While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it.”
Individuals picked up by US forces in Afghanistan face abuse or prolonged detention without trial when transferred to Afghan custody or repatriated home. US transfers in Afghanistan occur in various contexts: short-term US detention and transfer to Afghan intelligence; transfers of Afghan nationals held for longer periods at US-run facilities; and possible repatriations of non-Afghan nationals.
The US International Security Assistance Force (ISAF) transfers apprehended individuals to the Afghan intelligence agency National Directorate of Security (NDS), which is notorious for abuse. In 2007, the US joined Canada, the UK, the Netherlands, Norway and Denmark in signing an exchange of letters with the Afghan government intended to establish a common approach to these “battlefield transfers.” But the UK and Canada have both experienced problems with monitoring the treatment of transferred detainees, and there are credible reports that torture has occurred on a large scale.
As of winter 2010, the US was pursuing a bilateral agreement with the Afghan government about a new monitoring arrangement, expected to be in place within months, but the details were unknown.
USFOR-A (non-ISAF US forces) may hold individuals detained by its ISAF forces for up to 14 days. US authorities assess whether the individuals should be released, transferred to Afghan authorities or sent to the US detention facility at Parwan, which was opened in 2009 to replace the Bagram Theater Internment Facility.
At present, the report says, there are about 1,000 detainees at Parwan. “As the US prepares to transfer the Parwan facility to Afghan authorities in 2011, detainees there face the prospect of prolonged pre-trial detention and the possibility of unfair trials, given the poor condition of the Afghan criminal justice system,” the report warns, adding: “The 50 or fewer non-Afghan nationals at Parwan may be repatriated to their home countries or held in some other US facility in Afghanistan—US plans, and the role of assurances, are unknown.”
The US has also conducted renditions—transfers outside of legal process— but the frequency of these practices, their legal basis and the role of assurances is unclear. The US has conducted renditions to justice,” or kidnappings for the purpose of delivering individuals to criminal prosecution in foreign countries since before 9/11.
Former CIA official Michael Scheuer told Congress in 2007 that under the Clinton administration, the US sought assurances that each foreign government would treat captured al-Qaeda “fighters” according to “its own laws.” But according to Scheuer, “[t]here [were] no qualms at all about sending people to Cairo and kind of joking up our sleeves about what would happen to those people in Cairo—Egyptian prison.”
The US has also conducted, directed or assisted in “extraordinary renditions” -- transferring individuals without legal process for the purpose of interrogation or detention. Individuals have been held in secret US-run facilities, delivered to foreign authorities, or held in camps ostensibly run by foreign authorities but directed and funded by the US government, the report notes.
Key human rights experts and tribunals have expressed skepticism about the reliability of assurances, and articulated circumstances under which they should not be used. “But this non-categorical approach has left the door open to experimentation, including by the UK and Canada, which, like the US, have used assurances in deportations and transfers in Afghanistan. Their experiences demonstrate both the persistent deficiencies of assurances and the feasibility of better practice by the US,” the report says.
It notes that countries have long used assurances in extradition and related contexts, albeit more commonly in the context of guarantees against imposition of the death penalty. “In the context of torture, human rights fact-finding and monitoring bodies have long sought assurances from governments that detainees they visit and interview will not later be abused in retaliation,” it says.
These practices may partially explain why key human rights experts and tribunals initially accepted and even encouraged the use of assurances against torture. For instance, in 1996, then-Special Rapportuer on Torture Nigel Rodley encouraged Canada to seek assurances if it insisted on deporting a failed asylum-seeker to Algeria, calling it “perfectly appropriate and not uncommon.” In contrast, the European Court of Human Rights rejected assurances against torture in a 1996 case, Chahal v. UK, based on a scrutinizing assessment of their reliability.
By 2004, a series of revelations about the “global spider’s web,” as European Parliament member Dick Marty put it in a 2006 report, of US-directed renditions and torture—including the role of assurances— “had recast the debate from the question of assurances’ effectiveness to whether they should be rejected on principle,” the report noted.
In 2005, UN High Commissioner on Human Rights Louise Arbour indicted assurances as “threaten[ing] to empty international human rights law of its content.”
According to Arbour: “Diplomatic assurances basically create a two-class system among detainees, attempting to provide for a special bilateral protection and monitoring regime for a selected few and ignoring the systemic torture of other detainees, even though all are entitled to the equal protection of existing UN instruments.”
Arbour’s position mirrored the emerging perspective of major human rights organizations, the report says. While some advocates privately debated whether to suggest basic requirements for reliable assurances, others insisted that such a position would undermine the advocacy message that assurances should be rejected wholesale—the “reject rather than regulate” position.
Key human rights organizations continue to urge governments to abandon the concept of assurances altogether, emphasizing, as Amnesty International put it in a 2010 report, that the international human rights system is “fundamentally undermined when states seek to circumvent it with non-binding, bilateral promises not to torture.”
To date, no coalition of human rights groups has reached consensus on guidelines for assurances, nor have UN or Council of Europe bodies.
As then-Special Rapporteur on Torture Theo Van Boven emphasized in a 2004 report to the UN General Assembly, specific guarantees are critical to ensuring that diplomatic assurances are not “empty gestures.”
Van Boven recommended that safeguards “explicitly included in the assurances to be obtained” reflect international human rights norms and standards, including: prompt access to a lawyer; recording of all interrogation sessions and of the identity of all persons present; prompt and independent medical examination; and forbidding incommunicado detention or detention at undisclosed places.
Transparency in Decision-Making: Lack of transparency casts a pall on assurances-based transfers, prompting skepticism. In its most recent report on the US, the UN Committee Against Torture cited “the secrecy of [assurances] procedures including the absence of judicial scrutiny,” and called on the US to “establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review.”
“Diplomatic assurances” -- promises not to torture -- are sought by a government when it is transferring a detainee to the custody of another government. In the past, such assurances have often proved worthless; they have come from countries that have a long history of brutality against prisoners.
And, according to a new report from the Columbia University law school’s Human Rights Clinic, the U.S. is continuing to follow the same protocol. The result may well be further prisoner abuse because the government’s approach to transfers lacks institutional safeguards –“transparency, judicial review and systematic monitoring.”
For that reason, many human rights experts argue that a crucial part of the “war on terror” is being waged with “blissful ignorance.”
The report – “Promises to Keep” – says the U.S. may send a terror suspect to another country with a supposed promise that the detainee will be treated humanely. “Not surprisingly, it often doesn’t work out that way. The government knows this, and yet it’s still trying to move detainees out of the country.”
The report was written by Naureen Shah, a counterterrorism policy expert and lawyer at Columbia.
At his 2009 confirmation hearing to become director of the Central Intelligence Agency (CIA), Leon Panetta told Congress that, “using renditions, we may very well direct individuals to third countries.” Referring to past cases where assurances were used, Panetta said: “I will seek the same kind of assurances that they will not be treated inhumanely. I intend to use the State Department to assure that those assurances are, in fact, implemented and stood by those countries.”
But that is precisely the procedure that has been followed since the Clinton Administration – and which has produced some of the most heinous examples of torture and even death in detention.
The report notes that the Obama administration “initially signaled an interest in reforming its transfer and assurances practices. An interagency task force established in January 2009 recommended better monitoring and State Department involvement in evaluating assurances in all cases.” But it adds that “the government has not announced any steps to implement its recommendations.”
It notes that, “as this report went to print, the offices of Inspector General of the State Department, Department of Homeland Security and Department of Defense were in the process of reviewing assurances practice.”
While the government has suggested that it has wide discretion over how and when to use assurances, as well as whether to disclose that use, “it has provided next to no information about its minimum standards and
protocols for negotiating assurances, monitoring returned individuals and responding to allegations of abuse.”
“It has refused to acknowledge past breaches of assurances or provide redress to victims. In litigation, it has argued that disclosure would jeopardize US foreign policy interests and the government’s ability to negotiate assurances in future cases,” the report adds.
The report says the “strongest message” from the 2010 Wikileaks situation is that “US diplomats take protection against torture seriously but that individual efforts are not sufficient.”
It notes that “from the trickle of cables released on Wikileaks, more details are emerging, documenting both the scrupulous efforts of individual diplomats and the specific failures of particular assurances. While more details of specific cases will certainly emerge, thus far the leaks simply reinforce the need for clear policies and broader transparency to ensure appropriate vetting and accountability.”
Several cables released in December 2010 reference the efforts by the US to transfer detainees from Guantanamo, the report says. “The cables show how the US resisted Chinese and Tunisian diplomatic pressure to repatriate their nationals because of concerns that the detainees would be mistreated.”
“The US even had to resist Chinese and Tunisian pressures on other governments not to accept their nationals for resettlement,” the report says, adding, “One cable shows the US ambassador to Tunisia acknowledging credible reports that an already repatriated Tunisian national was mistreated. The ambassador also rejects Tunisia’s claims that the International Committee of the Red Cross had access to Tunisian prisons.”
Other leaked cables reveal that US diplomats offered financial and political incentives to foreign governments to safely resettle Guantanamo detainees, including a rejected “incentive package” of USD $3 million and promises of US help in obtaining International Monetary Fund assistance, the report claims.
The potential recipient governments appeared most concerned about public reaction in their own countries or foreign policy considerations such as risking China’s ire for resettling its nationals held at Guantanamo. But “none expressed concern about judicial review or public scrutiny of the assurances.”
The report notes that leading human rights advocates have condemned the practice of relying on assurances. “According to them, assurances are inherently unreliable in countries that have already demonstrated their willingness to torture in violation of local and international law.”
But the report concludes that “whatever the doubts about their ultimate effectiveness…there are clearly better and worse ways of employing assurances: they can serve as the cynical, legalistic veneer to a conscious abdication of responsibility, or a sincere effort to diminish the likelihood of an individual’s mistreatment.”
“From the past decade, there is evidence of the cynical, the sincere and much that falls in between, where mistakes or incompetence make the motives irrelevant,” the report says.
“In their first known use after 9/11, Sweden obtained vague assurances from Egypt that it would respect the rights of two asylum seekers returned to Egypt by a team of masked US commandos. Swedish diplomats waited five weeks before checking on the detainees and, then, did so in the presence of prison officials,” the report declares.
“For the US the first government acknowledgment of assurances after 9/11 was made to deflect responsibility for the alleged torture of Maher Arar, a Canadian citizen whom the US transferred to Syria. Years later, it emerged that the State Department had dismissed any concerns about the transfer without bothering to review the conditions.”
In the Arar case, the State Department failed to play any significant role, the report says. In summary proceedings, Arar, a Canadian citizen, was removed from the US and ultimately transferred to the custody of Syrian intelligence officials, who tortured Arar despite providing assurances to the US government.
Though the State Department denied involvement in the case, then-Deputy Secretary of State Richard Armitage acknowledged that he had a “brief—only two to three minutes, and casual” conversation about Arar with then-Deputy Attorney General Larry Thompson, who asked whether he had any “foreign policy objections” to removing Arar to Syria. According to Armitage, his “only concern was whether Mr. Arar was a United States citizen,” adding that “Syria was helping us with Al Qaeda.”
And in the 2006 extradition of Kulbir Singh Barapind, a Sikh separatist who feared torture by local police, by whom he had previously been tortured, the “US State Department made passing reference to an earlier case where there had been credible reports of torture.“ The Department was “unable authoritatively to confirm” whether the individuals were tortured.
“The State Department’s analysis did not address whether the police officers who previously tortured Barapind still held positions of authority or whether the central government authorities giving the assurances had the ability to supervise or control the state police. Instead, the State Department relied on the existence of Indian laws prohibiting torture—laws that were in place when Barapind was previously tortured,” the report declared.
The report said, “These examples could be treated as unfortunate gaffes committed by pressured officials operating in a difficult environment without clear instructions. Both Canada and Sweden were forced to respond robustly. A public inquiry in Canada led the government to apologize to Arar and pay CAD $10.5 million in damages. The early disclosures have led US allies to expose the practice to public debate and judicial scrutiny.”
But the United States has never publicly acknowledged fault or a need to improve, the report notes, adding:
“The US continues to maintain broad secrecy about its current practice while insisting that others trust it to respect the law and do the right thing. The US government hints publicly at improvements in internal processes while claiming that frank disclosure and judicial review—now extensive in Europe and Canada—are unnecessary and counterproductive.
Disclosing the process or text of assurances would harm diplomatic relations, according to US officials, and judicial review would undermine the ability of the US government to ‘speak with one voice,’ the report says.
Diplomatic assurances are also used in some immigration cases. In those cases, the US does not acknowledge the right of the individual to challenge the assurances, the report says.
In one immigration case, the report details, the government terminated the “deferral of removal” of Sami Khouzam, a Coptic Christian facing persecution in Egypt, on the basis of Egyptian assurances it received in 2004. But it did not inform Khouzam of the termination of his status—and his loss of protection—until May 2007, three days before he was arrested and detained in preparation for imminent removal. In 2008, the Third Circuit Court of Appeals held that by failing to provide Khouzam any opportunity to challenge his removal, the government violated his due process rights.
Rigorous and systematic State Department scrutiny is a crucial safeguard, particularly in the absence of judicial review, the report suggests.
“At least since 2005, the US government has solicited assurances of humane treatment in the transfer of every individual out of Guantanamo. It has declined to repatriate detainees to home countries due to their records on torture or reports of mistreatment to previously returned detainees, including China, Syria, Tunisia and Uzbekistan. In the case of China and Tunisia, it has resisted intense diplomatic pressure by foreign diplomats to repatriate their nationals,” the report notes, but adds:
“Publicly, the government has refused to acknowledge cases of breached assurances, including its failure to ensure effective post-return monitoring, or foreclose the option of repatriating nationals to home countries with records of torture. This leaves the 33 Guantanamo detainees who have been cleared for release but who face such repatriation in limbo.”
“Even as the government seeks to negotiate their resettlement in safe third countries, in courts, it has argued that its authority to repatriate them is absolute and unfettered by judicial review, as long as it declares the transfer compatible with US policy against torture,” the report says.
In July 2010, the US Supreme Court acceded to government arguments against judicial review, refusing to block the transfers of two Algerian detainees who feared mistreatment by government authorities or extremists. UN experts Manfred Nowak and Martin Scheinin condemned the decision, saying they were “extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin.”
“This could become the first involuntary transfers of Guantanamo detainees of the Obama administration,” the UN experts said. “While we appreciate the efforts of the authorities to close the Guantánamo detention facility, the risk assessment should be a meaningful and fair process, and the courts should be part of it.”
Individuals picked up by US forces in Afghanistan face abuse or prolonged detention without trial when transferred to Afghan custody or repatriated home. US transfers in Afghanistan occur in various contexts: short-term US detention and transfer to Afghan intelligence; transfers of Afghan nationals held for longer periods at US-run facilities; and possible repatriations of non-Afghan nationals.
The US International Security Assistance Force (ISAF) transfers apprehended individuals to the Afghan intelligence agency National Directorate of Security (NDS), which is notorious for abuse. In 2007, the US joined Canada, the UK, the Netherlands, Norway and Denmark in signing an exchange of letters with the Afghan government intended to establish a common approach to these “battlefield transfers.” But the UK and Canada have both experienced problems with monitoring the treatment of transferred detainees, and there are credible reports that torture has occurred on a large scale.
As of winter 2010, the US was pursuing a bilateral agreement with the Afghan government about a new monitoring arrangement, expected to be in place within months, but the details were unknown.
USFOR-A (non-ISAF US forces) may hold individuals detained by its ISAF forces for up to 14 days. US authorities assess whether the individuals should be released, transferred to Afghan authorities or sent to the US detention facility at Parwan, which was opened in 2009 to replace the Bagram Theater Internment Facility.
At present, the report says, there are about 1,000 detainees at Parwan. “As the US prepares to transfer the Parwan facility to Afghan authorities in 2011, detainees there face the prospect of prolonged pre-trial detention and the possibility of unfair trials, given the poor condition of the Afghan criminal justice system,” the report warns, adding: “The 50 or fewer non-Afghan nationals at Parwan may be repatriated to their home countries or held in some other US facility in Afghanistan—US plans, and the role of assurances, are unknown.”
The US has also conducted renditions—transfers outside of legal process— but the frequency of these practices, their legal basis and the role of assurances is unclear. The US has conducted renditions to justice,” or kidnappings for the purpose of delivering individuals to criminal prosecution in foreign countries since before 9/11.
Former CIA official Michael Scheuer told Congress in 2007 that under the Clinton administration, the US sought assurances that each foreign government would treat captured al-Qaeda “fighters” according to “its own laws.” But according to Scheuer, “[t]here [were] no qualms at all about sending people to Cairo and kind of joking up our sleeves about what would happen to those people in Cairo—Egyptian prison.”
The US has also conducted, directed or assisted in “extraordinary renditions” -- transferring individuals without legal process for the purpose of interrogation or detention. Individuals have been held in secret US-run facilities, delivered to foreign authorities, or held in camps ostensibly run by foreign authorities but directed and funded by the US government, the report notes.
Key human rights experts and tribunals have expressed skepticism about the reliability of assurances, and articulated circumstances under which they should not be used. “But this non-categorical approach has left the door open to experimentation, including by the UK and Canada, which, like the US, have used assurances in deportations and transfers in Afghanistan. Their experiences demonstrate both the persistent deficiencies of assurances and the feasibility of better practice by the US,” the report says.
It notes that countries have long used assurances in extradition and related contexts, albeit more commonly in the context of guarantees against imposition of the death penalty. “In the context of torture, human rights fact-finding and monitoring bodies have long sought assurances from governments that detainees they visit and interview will not later be abused in retaliation,” it says.
These practices may partially explain why key human rights experts and tribunals initially accepted and even encouraged the use of assurances against torture. For instance, in 1996, then-Special Rapportuer on Torture Nigel Rodley encouraged Canada to seek assurances if it insisted on deporting a failed asylum-seeker to Algeria, calling it “perfectly appropriate and not uncommon.” In contrast, the European Court of Human Rights rejected assurances against torture in a 1996 case, Chahal v. UK, based on a scrutinizing assessment of their reliability.
By 2004, a series of revelations about the “global spider’s web,” as European Parliament member Dick Marty put it in a 2006 report, of US-directed renditions and torture—including the role of assurances— “had recast the debate from the question of assurances’ effectiveness to whether they should be rejected on principle,” the report noted.
In 2005, UN High Commissioner on Human Rights Louise Arbour indicted assurances as “threaten[ing] to empty international human rights law of its content.”
According to Arbour: “Diplomatic assurances basically create a two-class system among detainees, attempting to provide for a special bilateral protection and monitoring regime for a selected few and ignoring the systemic torture of other detainees, even though all are entitled to the equal protection of existing UN instruments.”
Arbour’s position mirrored the emerging perspective of major human rights organizations, the report says. While some advocates privately debated whether to suggest basic requirements for reliable assurances, others insisted that such a position would undermine the advocacy message that assurances should be rejected wholesale—the “reject rather than regulate” position.
Key human rights organizations continue to urge governments to abandon the concept of assurances altogether, emphasizing, as Amnesty International put it in a 2010 report, that the international human rights system is “fundamentally undermined when states seek to circumvent it with non-binding, bilateral promises not to torture.”
To date, no coalition of human rights groups has reached consensus on guidelines for assurances, nor have UN or Council of Europe bodies.
As then-Special Rapporteur on Torture Theo Van Boven emphasized in a 2004 report to the UN General Assembly, specific guarantees are critical to ensuring that diplomatic assurances are not “empty gestures.”
Van Boven recommended that safeguards “explicitly included in the assurances to be obtained” reflect international human rights norms and standards, including: prompt access to a lawyer; recording of all interrogation sessions and of the identity of all persons present; prompt and independent medical examination; and forbidding incommunicado detention or detention at undisclosed places.
Transparency in Decision-Making: Lack of transparency casts a pall on assurances-based transfers, prompting skepticism. In its most recent report on the US, the UN Committee Against Torture cited “the secrecy of [assurances] procedures including the absence of judicial scrutiny,” and called on the US to “establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review.”
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