Monday, February 21, 2005


By William Fisher

Civil libertarians are wondering if America’s new attorney general, Alberto Gonzales, will repeat one of the legacies left by his predecessor, John Ashcroft: razzle-dazzle news conferences announcing the arrests of terrorists, followed by trials in which no one is charged or tried for any terror-related offenses.

The latest chapter in this legacy is the conviction of Dr. Rafil Dhafir, an
Iraqi-American oncologist, who was convicted last week on 59 of 60 counts, including violating economic sanctions against Iraq, Medicare fraud and tax evasion.

The government alleged that Dr. Dhafir illegally raised millions of dollars and violated U.S sanctions by sending funds to Iraq through his charity -- "Help the Needy" – and also diverted some of these funds for his personal use.

He is thought to be the only U.S citizen convicted of breaking the Iraq sanctions, though other organizations such as Voices in the Wilderness, Veterans for Peace, Pax Christi USA, the American Friends Service Committee, the Order of St Dominic (Dominican priests), Conscience International, Global Exchange, and the International Action Center, have admitted breaking the sanctions with Iraq since before the U.S. invasion.

When Dhafir was arrested in upstate New York in February 2003, Attorney General Ashcroft trumpeted the arrest as part of President Bush's war on terror. He said, “Those who covertly seek to channel money into Iraq under the guise of charitable work will be caught and prosecuted. As President Bush leads an international coalition to end Saddam Hussein's tyranny and support for terror, the Justice Department will see that individuals within our borders cannot undermine these efforts.”

And New York Governor George Pataki declared, 'It is again troubling to see…that there are clear terrorists living here in New York State among us...who are supporting or aiding and abetting those who would destroy our way of life and kill our friends and neighbors.'

But no terrorism charges were ever bought against Dr. Dhafir. A member of Dhafir’s defense team, Joel Cohen, believes that his client “was clearly targeted, clearly investigated, clearly indicted, tried, and clearly convicted because he is a Muslim, (and) because he is a person of Iraqi ancestry….”

The judge in Dhafir’s case denied a defense motion to allow mention of Dhafir’s religion or refer to terrorism during the trial.

David Cole, a professor at Georgetown University Law Center and an internationally recognized legal authority on civil liberties, believes the Dhafir case is emblematic of a pattern created by the Ashcroft Justice Department.

“Not one person of the more than 5,000 locked up as a foreign national in preventive detention by John Ashcroft was ever convicted of a terrorist crime.
The only convictions have been of U.S. citizens. John Ashcroft labeled them as suspected terrorists, but it turned out they had nothing to do with terrorism whatsoever, “ Cole said.

In his end-of-year speech to DOJ employees, Ashcroft said “375 people have been charged in terror-related cases over the past three years and 190 have been convicted or pleaded guilty.”

But, according to Cole, “what Ashcroft doesn't say is that most of those people are not indicted on anything to do with terrorism. What he doesn't say is that a Syracuse University research department looked at Justice Department figures found that the median sentence imposed on persons convicted for crimes in cases that the DOJ labeled as terrorism was 14 days. Now, 14 days is not the kind of sentence you get if you're convicted of terrorism. It's the kind of sentence you get if you're convicted of some completely petty crime.”

The Ashcroft DOJ has brought several other high-profile prosecutions. Among them is the case of “The Lackawanna Six”. Arrested in the Yemeni community of this old steel town in upstate New York, the six young men were charged under the federal anti-terrorism statute with providing material support to al-Quaida which, prior to September 11, 2001, had been designated by the Secretary of State as a “foreign terrorist organization.”

Specifically, the men were charged with providing “material support” in the form of training. The training consisted of paying for a uniform, attending the training camp where they learned to use weapons, and standing guard duty. The charges against them also specified viewing videotapes of the bombing of the USS Cole and speeches by Osama Bin-Laden.

None of the defendants engaged in acts that were, at the time, obviously criminal in nature. It was not until several months after their return from Afghanistan that planes crashed into the World Trade Center. The six young men agree to plead guilty to providing "material support" to al Qaeda. Prosecutors said the defendants belonged to a terrorist "sleeper cell."

"One by one," President Bush declared after the arrests, "we're hunting the killers down." Deputy Attorney General Larry D. Thompson said the arrests showed terrorism was not limited to large cities. "It lurks in small towns and rural areas," he said.

But, according to defense attorneys, the defendants pled guilty because the federal government implicitly threatened to send them to a military prison without trial. Instead, they accepted prison terms of 61/2 to 9 years. But prosecutors never offered evidence that the Lackawanna defendants intended to commit an act of terrorism.

In another high-profile case, known as the "Detroit terror cell prosecution," a US federal judge threw out the June 2003 convictions of three Detroit-area men accused of being members of a terrorist “sleeper operational combat cell.”

The ruling came at the request of the Justice Department itself. The department admitted that prosecutors railroaded the defendants to prison, concealing dozens of pieces of exculpatory evidence that should have been given to defense attorneys during the trial.

Until their dismissal, the Detroit convictions were the only successful post-9/11 terror-related prosecutions, and had been hailed by administration officials and cited as one of the Justice Department’s “notable achievements”.

In his ruling, the judge said that in its “ruthless drive to convict Arab and Islamic suspects”, the DOJ “overcame not only its professional judgment, but its broader obligations to the justice system and the rule of law.”

As White House counsel, Ashcroft’s successor, Alberto Gonzales, was deeply involved in recommending policy options to President Bush for conducting the ‘war on terror’, as well as in the issue of what constitutes torture of prisoners.

First as a U.S. Senator and then as Attorney General, John Ashcroft was always a controversial firebrand. By contrast, Alberto Gonzales is soft-spoken and seemingly more contemplative. But, given his loyalty to the president and the administration’s unrelenting commitment to defeating the terrorists, it may be a stretch to think that there will be any fundamental change in the DOJ.


By William Fisher

The defense team in the case of a 23-year-old American citizen held in a Saudi Arabian prison for over a year without charge has had to respond to a U.S. Government motion to dismiss the case without ever seeing the government’s motion.

David Cole of the Georgetown Law Center, one of Ali’s defense attorneys, said, “I’ve been involved in many secret evidence cases before, but never where a U.S. citizen’s liberty has been at stake. The government maintains that it can dispose of a legal challenge to a U.S. citizen’s detention without even allowing his lawyers to see the evidence or the argument being used against him. We are left to fight shadows."

Ali, a Houston-born student, was arrested in Saudi Arabia in June 2003, while taking an exam at the University of Medina, and has since been held in a Saudi prison without charge or access to legal counsel. Saudi authorities claim they have no case against Ali, and that his detention was at the behest of the U.S. Government. The U.S. Government claims it had nothing to do with his arrest or imprisonment, but has declined to publicly produce any evidence to document this claim. Agents of the Federal Bureau of Investigation visited Ali during his detention. The U.S. Government has reportedly asked Saudi authorities to indict Ali or return him to U.S. custody.

The suit against the government was brought last summer by Ali’s Jordanian-born parents, who contend that their son is in de-facto detention by the U.S. government. They allege the U.S. arranged for their son to be held by the Saudi government on suspicion of terrorist acts and that U.S. authorities expected he would be tortured there. In December 2004, U.S. District Judge John D. Bates ruled that that the parents could seek government documents to try to prove these allegations, but the government maintains the documents are secret.

The defense team believes the government is trying have the case dismissed to avoid disclosing its role in Ali's imprisonment.

In a new brief filed on behalf of Ali’s parents, the defense contends that “no court at any level” has ever dismissed a case “where the physical liberty of a U.S. citizen is at stake. To the contrary, courts have consistently held that reliance on secret evidence in proceedings where physical liberty is at stake violates due process.”

The brief continued, “The government’s interest in national security cannot be so all-encompassing that it requires that [Petitioners] be denied virtually every fundamental feature of due process.”

“Nothing is more fundamental to the American system of justice than the notion that adversarial testing is the best way to avoid error and protect individual rights,” the brief said. The government “cannot both keep evidence secret and use it affirmatively to block any legal challenge to the detention of a U.S. citizen,” the defense brief declared.

The government has argued that U.S. courts have no jurisdiction over what happens to an American citizen held abroad. But the defense says, “No court has found that the state secrets privilege may trump a U.S. citizen’s right to be free from unlawful incarceration.”

The defense brief contends that “one would be hard pressed to design a procedure more likely to result in erroneous deprivation” of Mr. Abu Ali’s liberty than dismissal of his case “based on a secret, one-sided presentation of facts and legal argument.”

The government, according to the brief, “has taken the position that the Court should review unrebutted evidence and argument, and actively participate in the factual development of the case. But the Court cannot take the place of an advocate. Even when courts have the opportunity to review secret evidence, they have consistently ruled the petitioners’ rights are not adequately protected” when they have no access to the evidence to be used against them.

It adds that the government’s latest motion to dismiss “is nothing less than an attempt to unilaterally proceed under the flawed ‘discovery proposal’ it previously advanced. The government seeks to short-circuit discovery altogether by instead submitting a one-sided, secret presentation of its version of the facts on the very issue discovery was designed to illuminate – whether Mr. Abu Ali is in the United States’ constructive custody.”

As evidence that the U.S. is involved in Ali’s detention in Saudi Arabia, the brief charges that “less than 24 hours after this Court’s recent hearing…Ali was allowed to call his parents for the first time since November, but allowed to speak for only ten minutes and was not allowed to answer any questions about his treatment at the prison or consular visits.”

Ali‘s family charges that their son is a victim of ‘rendition’ – in which suspects are taken to, or held by, other countries and interrogated without the protection of U.S. laws. The practice is known to be used by the Central Intelligence Agency (CIA) and other agencies. Frequently, the targets of ‘rendition’ are sent to or detained by countries known to torture or abuse prisoners.

At an earlier hearing in Washington last week, Judge Bates said he had “serious reservations about dismissing the case “based on information that would be presented to him privately in chambers”. He said that although he was “mindful of the government's concerns about national security, he would be “reluctant to dismiss” claims of unjust imprisonment without a public explanation.”

Two months after his arrest, in September 2003, Ali was interrogated by FBI agents, who reportedly threatened to declare him an “enemy combatant” and send him to Guantanamo Bay, or put him on trial in Saudi Arabia, where he would have no legal defense. He was then placed in solitary confinement for three months.

But “The Washington Post” reported that the Saudi embassy said in an e-mail that a senior Saudi official had issued the following statement: Abu Ali "is being detained with the full knowledge and support of the U.S. government. There is an ongoing investigation regarding this individual. At this time, we have received no request for extradition."

Abu Ali’s parents are being represented by the prominent Washington, D.C. law firm of Arnold & Porter, The World Organization For Human Rights USA, an advocacy group, and Mr. Cole.

U.S interest in Ali stems from an alleged connection to a now-concluded Virginia terrorism case. During a July 2003 bail hearing for one of the Virginia defendants, Sabri Benkhala, said Ali was an associate of his who had allegedly confessed to belonging to al-Q’aeda during interrogations that were conducted by Saudi Arabia authorities and observed by the FBI. Benkhala was acquitted of the charges.

No date has been set for the judge's decision.


By William Fisher

“If a local candidate wants to be on television, and cannot afford to advertise, his only hope may be to have a freak accident,” said U.S. Senator John McCain as he introduced legislation to compel local television stations to improve their coverage of local political campaigns.

“One of the most startling statistics from the study is the ratio of political advertisements to candidate news stories aired during a half-hour news cast. Reduced news coverage led candidates to spend over $1.6 billion on television ads in 2004 to introduce themselves to voters, double the amount spent in 2000,” he declared.

McCain, a Republican from Arizona, is the co-author of the McCain-Feingold campaign finance reform legislation. Most observers find this law had little effect on campaign contributions during the 2004 presidential campaign due to a loophole that allowed unlimited spending by so-called “527 groups” – not-for-profit organizations not connected to candidates’ organizations or party apparatus.

In an effort to encourage local television outlets to devote more time to coverage of local races, McCain introduced his “Localism in Broadcasting Reform Act of 2005.” The proposal would reduce the license term for broadcasters from eight years to three years, thereby requiring broadcasters to provide the Federal Communications Commission (FCC) with information every three years on why their license should be renewed.

The bill would also require the FCC to review five percent of all license and renewal applications, and would command broadcasters to post on their Internet sites information detailing their commitment to local public affairs programming.

McCain’s effort was triggered by a new study carried by the Lear Center Local News Archive ( at the University of Southern California (USC) Annenberg School for Communication. Principal Investigators were Martin Kaplan, Associate Dean of the Annenberg School and Director of The Norman Lear Center; Ken Goldstein Professor of Political Science at the University of Wisconsin-Madison, and Director of the University’s Center for the Study of Politics; and Matthew Hale, Assistant Professor at the Center for Public Service at Seton Hall University.

Key study findings include:

Local stations devoted 12 times as much coverage to sports and weather than they did to coverage of local elections.

Eight times more news coverage went to stories about accidental injuries than local elections

Sixty-four percent of the 4,333 broadcasts captured contained at least one election story. A typical half-hour of news contained three minutes and 11 seconds of campaign coverage. An average campaign story was 86 seconds long, and an average candidate soundbite (which appeared in just 28 percent of the stories) was 12 seconds long.

Fifty-five percent of the broadcasts captured contained a presidential story. By contrast, just eight percent of those broadcasts contained a story about a local candidate race, which includes campaigns for the U.S. House, state senate or assembly, mayor or city council seat, judgeship, law enforcement posts, education-related offices, and regional and county offices. Eight times more coverage went to stories about accidental injuries, and 12 times more coverage to sports and weather, than to coverage of all local races combined.

Nineteen percent of the stories focused on voting issues such as the location of polling stations, absentee ballot information and reports on early voting efforts, as well as on national voting issues like potential voting irregularities. Just under five percent of the stories focused on local and statewide ballot initiatives.

More stories focused on campaign strategy and the horserace (44 percent of the stories captured) than on campaign issues (32 percent).

The amount of time given to presidential news coverage was in most cases roughly equivalent to the amount of presidential advertising time, even in markets where the presidential race was competitive. By contrast, in races for the U.S. Senate, ads outnumbered news by as much as 17-to-one, and in U.S. House races by as much as seven-to-one.

These findings are based on an analysis of evening news broadcasts aired between 5:00 p.m. and 11:30 p.m. by 44 affiliates of ABC, CBS, Fox and NBC in 11 markets during the 29-day period from October 4 to November 1, 2004. The markets are New York, Los Angeles, Philadelphia, Dallas, Seattle, Miami, Denver, Orlando, Tampa, Dayton and Des Moines. Together, they account for 23 percent of all television viewers in the country.

The study also examined local political news on Spanish-language television stations in Los Angeles, New York City and Miami. On average, these stations did even worse than English-language stations. English-language stations averaged more campaign stories, longer campaign stories and contained more candidate soundbites than Spanish-language stations.

Election-focused news comprised 11.2 percent of all English-language news and 9.5 percent of all Spanish language news aired by local affiliates.

Sixty-four percent of the English-language campaign stories, and 67 percent of the Spanish-language campaign stories, focused on the presidential race. Only six percent of the English-language campaign stories, and just three percent of the campaign stories on the Spanish-language stations, focused on local races, such as those for the U.S. House, State Senate, State Assembly, mayor, courts, law enforcement, education-related offices, and other regional offices.

The average length of an English-language story was one minute 43 seconds. The average length of a Spanish-language story was one minute 18 seconds. The average length of a candidate soundbite on the English-language stations was 12 seconds, compared to 10 seconds for an average Spanish-language soundbite.

The Annenberg School’s Kaplan recalled, "Last summer, Senator McCain and (former) FCC Chairman Michael Powell challenged America’s broadcasters to live up to the promise in their licenses to provide significant coverage of local races. Based on our findings, it looks like that challenge pretty much fell on deaf ears. Coverage of local politics on local news is an endangered species."

He said, "There are stations that do a good job covering campaigns and local politics, but often they do it despite murderous pressures for ratings and the assumption that audiences are turned off by public affairs programming. It takes real leadership from news directors and station managers to overcome those odds."

McCain said: “To those broadcasters whose dismal performance is captured in this study or whose performance was as dismal as the broadcasters in the study, I question how you are meeting your obligation to use the Nation’s spectrum to serve the “public interest.” He added: “I refuse to believe that the ‘public interest’ is served by three minutes of campaign coverage and a 12 second sound bite from a candidate during a half-hour local news program. Citizens deserve more from their local broadcaster.”

A number of factors contribute to the poor showing of local television. Among them: Viewers seem to prefer accidents, fires and murders to politics; news staffs and budgets of local TV stations have been shrinking for the past few years; one of the reasons is that increased media concentration has made it possible for news to be fed to local stations from a central source, usually the owner of a chain of television stations.