Thursday, March 29, 2007


By William Fisher

What could turn out to be an epic battle is brewing in the US Senate. But unlike most of this chamber’s epic battles, this one pits Republican against Republican.

The battle is over the Habeas Corpus Restoration Act of 2007. The proposed legislation would repeal provisions of the Military Commissions Act of 2006 that stripped US civilian courts from jurisdiction to hear or consider applications for a writ of habeas corpus filed by aliens detained as enemy combatants.

And the protagonists are arguably two of the Senate’s sharpest legal minds: Senator Arlen Specter of Pennsylvania and Senator Lindsey Graham of South Carolina.

The principal issue in this latest chapter of the detainee drama is whether congress will, on its own, vote to reconsider a key provision of legislation it passed last year at the suggestion of the Supreme Court – or whether the case will get to the court before lawmakers have a chance to vote.

Legal advocacy organizations such as the Center for Constitutional Rights have already petitioned the high court to review the MCA, and have asked for oral arguments before summer.

Their action has been accelerated by the recent decision of a lower federal appeals court, which ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts.

The court's decision found that overruling the MCA would "defy the will of congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

Ironically, it was a suggestion contained in a Supreme Court decision that led to “the will of congress” -- passage of the MCA. The high court had previously upheld Guantanamo detainees' right to contest their incarceration in two landmark decisions in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. That decision followed similar rulings from two lower federal appeals courts.

But in its Hamdan decision, the high court said that Congress could take further action on the issue. That action resulted in enactment of the Military Commissions Act of 2006, which stripped civilian courts of jurisdiction as well as setting up special military trials for detainees.

While the senate has been preoccupied with other issues, including the president’s request for emergency supplemental spending to fund the Iraq and Afghanistan wars, the Habeas Corpus Restoration Act of 2007 has been on hold. But now that the emergency funding bill has been passed by the senate and is on its way to a Senate-House conference committee – and then to a promised presidential veto -- congress-watchers are expecting the habeas legislation to re-emerge. That action will no doubt have been made more urgent by the guilty plea of “Australian Taliban” detainee, David Hicks, the first-ever conviction by a Military Commission at Guantanamo.

When the senate begins debating the MCA, Sens. Specter and Graham can be expected to spearhead the debate. Specter will be joined by the powerful chairman of the Senate Judiciary Committee, Sen. Patrick Leahy of Vermont, a co-sponsor of the legislation, a host of other Democrats, and a few Specter-like Republicans. Graham’s position will have the backing of most Republicans, largely conservatives.

Specter – a former prosecutor – will bolster his position with panoply of complex constitutional as well as moral arguments. But at the core of these will be a straightforward legal contention: If people under the effective control of the US have no habeas rights, why did the framers of the Constitution specify that habeas rights could only be suspended in times of invasion or armed insurrection against the government? Neither of these, he says, is present today. Specter is also likely to emphasize the negative impacts of Guantanamo and its legal failings on America’s reputation abroad.

Graham, an Air Force reserve colonel who has been a military lawyer and judge for 20 years, will take the position that prisoners of war – or those designated as enemy combatants – are not protected by the Constitution and have ever had the right to petition civilian courts to determine their reasons for being held. He is also likely to argue that federal judges are not trained to hear military cases, that hundreds of habeas petitions will clog court calendars for years, that many of the civilian judges and the lawyers involved in these proceedings do not have the necessary security clearances, and that public hearings could well compromise national security by revealing classified information.

Another MCA-repeal bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.

Sen. Specter, who frequently finds himself at odds with the administration of his own party, appears to be hedging his bets. While joining Sen. Leahy in pressing for the senate to take up the MCA-repeal legislation, Specter has meanwhile submitted a “friend of the court” brief to the Supreme Court in support of a petition for a writ of certiorari that asks the court to hear the case.

The petition was filed by the Center for Constitutional Rights, the legal advocacy organization that coordinates the work of hundreds of pro-bono lawyers who have volunteered to defend Guantanamo detainees. There are still close to 400 prisoners at the Cuban base, many of whom have long since been declared “no further threat” to the US and who are awaiting release.

In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."

Wells Dixon, an attorney with the Center for Constitutional Rights Guantánamo Global Justice Initiative, said, "We are pleased that Senator Specter has joined us in asking the Court to reaffirm the right of the detainees to challenge their detention in a court of law. This will be the third time the Court rules on this issue while our clients have languished for more than five years without a chance to prove their innocence or even, in some cases, have access to an attorney. It is time to return to the rule of law on which our country was founded."

Specter does not discount further efforts by Congress to resolve the issue but argues that the Court has a critical role to play, both in establishing what the Constitution requires and in giving the detainees the opportunity to argue the merits of their cases.

He believes the debate in Congress is ultimately not helping: "While this exchange of ideas is surely healthy and appropriate, the conversation has begun to generate diminishing returns. Meanwhile, the detainees wait, and uncertainty surrounds a fundamental constitutional principle. If the Court declines to resolve these important issues in this term, the detainees could face more than another full year in legal limbo."

Then, even if the Congress acts to repeal the habeas section of the MCA, the new legislation could well face a Bush veto – without the votes necessary to over-ride it.

Thus, Guantanamo is likely to be with us for some time to come – the issue that simply won’t go away.

Wednesday, March 28, 2007


By William Fisher

As Australian David Hicks awaits sentencing after being the first Guantanamo detainee convicted under the Military Commissions Act, human rights organizations, legal scholars, and lawmakers, are condemning the entire MCA process and again challenging its constitutionality both in the courts and in Congress.

Earlier this week, Hicks, 31 pleaded guilty to providing material support for terrorists. He could face life imprisonment, but indications are that the U.S. may have struck a deal with the pro-Bush administration of Australian Prime Minister John Howard to have a lighter sentence imposed and to allow Hicks to serve his sentence in Australia. Howard is facing a tough campaign for re-election and the Hicks prosecution has become a major campaign issue.’’

After the tribunal judge and lawyers for both sides work out details of Hicks's plea, a full military commissions jury panel will meet to decide on a sentence.

Hicks, sometimes referred to as “the Australian Teleban”, has been in custody at Guantanamo for over five years. He was taken into custody by the U.S. military in Afghanistan in 2001 after being turned over to the Americans by the Afghan Northern Alliance, a warlord-led organization that was helping the US military. In many known cases, the Alliance received bounty payments for turning over alleged terrorists and their sympathizers. The practice has resulted in the Guantanamo detention of a number if prisoners later found to be innocent and freed. However, some of those found innocent are still being held at the Cuban base.

For most of his time in detention, Hicks was charged with no crime, and given only sporadic and restrictive access to lawyers and to his family.

Hicks’s trial has been characterized as something of a legal circus, with the colonel in charge of the court leaving many with the impression that the rules and procedures of these new bodies are still unclear.

At one point in the trial, the presiding judge, Colonel Ralph Kohlmann, ruled that one of Hicks’s civilian lawyers, including New York criminal attorney Joshua Dratel, could not represent Hicks because he had not signed a form demanded by the court saying he would conform to the regulations governing proceedings.

Dratel protested, saying he could not sign the form because the regulations governing the conduct of attorneys had not yet been formulated by the Secretary of Defense. He said he was not going to sign a blank check for his ethical obligations.

Among Judge Kohlmann’s other rulings was that an assistant to Hick’s military counsel, Marine Major Michael Mori, could not represent him because she was not a serving member of the military.

The judge also ruled in his own favor when Major Mori attempted to argue that judge Kohlmann was not impartial because he had not only effectively ruled against Hicks's defense team, but had also tried to schedule the hearing at a time when Hicks's civil lawyer was unavailable.

The judge also refused to follow the defense's suggested schedule of hearings, saying it would mean that the trial would not get underway until 2008.

Hicks offered no plea during the day’s proceedings. But late the same night, his lawyers notified the court he would plead guilty to one of the two charges against him – providing material support for terrorists. He entered no plea on the second charge – that he took part in paramilitary combat with the intent of killing American and Coalition troops. (CHECK)

As the Hicks prosecution draws to a close, the process through which it proceeded was being roundly criticized by human rights organizations, legal authorities and lawmakers.

As Mary Shaw of Amnesty International put it to IPS, “David Hicks has been detained for more than five years at Guantanamo without trial and with very limited access to his family and attorneys. He claims to have been subjected to torture and other abuses while imprisoned, but lacks the critical right to habeas corpus to challenge this treatment. Being charged and brought to trial under the hastily constructed and ill-advised military commissions system, Hicks has been denied basic rights that the United States has traditionally upheld.”

At the heart of that process is the Military Commissions Act (MCA), which was signed into law by President Bush on October 17, 2006. The act was the second attempt by the Bush administration to strip detainees of their statutory right of access to civilian courts by using habeas corpus to question the legality of their detention. This right has been twice affirmed by the Supreme Court, first in a landmark case, Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006. The act also allows for evidence obtained through torture - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an "enemy combatant."

The sentiments of Brian J. Foley, a professor at the Florida Coastal School of Law and a widely recognized constitutional lawyer, are typical of large numbers of attorneys. He told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”

He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies. As a result, our investigators lack an accurate picture of the real threat (whatever that is) and probably have an exaggerated view -- which is keeping our country in fear and wasting valuable resources and energies. Investigators are also susceptible to being toyed with by any real terrorist they've captured, who might simply send them scurrying in the opposite direction of a real attack. It's time our supposed leaders got hardheaded, and not just hard-hearted, about addressing terrorism. A tribunal system that uses only accurate evidence would be a step in that direction."

Court cases challenging the conditions of detention have been brought by lawyers representing or being coordinated by the Center for Constitutional Rights, a New York-based legal advocacy group that has mobilized hundreds of private attorneys to defend Guantanamo detainees. The CCR has again filed suit challenging the constitutionality of the MCA, particularly of the suspension of habeas corpus. If the Supreme Court decides to hear the case again, arguments would probably be heard in the spring.

And, as the high court makes its decision, US Republican Senator Arlen Specter on March 22, 2007 submitted an amicus brief to the Court in support of the CCR’s petition urging yet another court review.

In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."

Sen. Specter, a former US attorney, is the ranking member of the powerful Senate Judiciary Committee, which has jurisdiction of legislation such as the MCA. He was the committee’s chairman when the act was passed, but became its leading minority member when control of the senate passed to the Democrats as a result of the 2006 election.

Specter, considered a moderate Republican, is also locked in what promises to be an epic battle within the Congress to amend to MCA in order to restore habeas corpus rights to detainees through the Habeas Corpus Restoration Act of 2007.

The essence of Specter’s position is that if the US Constitution did not confer habeas corpus rights, it would not have said they could be suspended only in times of invasion or insurrection – neither of which applies today.

His principal adversary in this battle is Sen. Lindsey Graham, a conservative Republican from South Carolina, and one of the principal authors of the legislation. Sen. Graham maintains that no war prisoner or “enemy combatant” has ever enjoyed the right to come before a US civil court to question the basis of his detention.

The proposed new law is being strongly supported by human rights groups and legal scholars. Amnesty International, for example, told IPS, “Amnesty International urges all members of Congress to take a significant first step in restoring U.S. leadership on human rights by supporting (the proposed law), to return habeas rights to people in U.S. custody.

The view of most opponents of the government’s current system is summed up by a CCR spokesperson:

"The military commissions are illegal under U.S. and international law for many reasons, most important that they allow the admission of evidence obtained through torture and other coercion. Two of Mr. Hicks' attorneys were barred from the proceedings yesterday. According to his family and his lawyers, he is deeply depressed. It is likely he pled guilty to the charge of providing material support in order to be able to serve his time in Australia and leave the black hole that is Guantánamo.

"Hick's guilty plea should not be seen as legitimizing in any way an utterly illegal system of off-shore penal colonies, abuse, and 'trials' that violate fundamental due process rights. If Hicks is to be tried, he could and should be tried in a real court - as the U.S. has done with similar charges in the past. What really were Hick's choices?

"This is the first military commission to be held - out of 800 detainees, only 10 were ever designated to be charged and that number has dropped to three at present. There remain 385 men at Guantánamo that the government has never shown it had a reason to hold, who have been held indefinitely with no hope of being able to prove their innocence. This is a deeply flawed process whose rules change at the will of the government with no guarantees of due process or the rule of law."

Friday, March 16, 2007


By William Fisher

For the past six years, Rep. Henry Waxman has looked like a man desperately in need of anti-depressant medication.

As the ranking minority member of the House Oversight and Government Reform Committee, the California Democrat was thwarted by his Republican colleagues in virtually every effort to exercise Congressional oversight into Bush Administration secrecy, waste, fraud, and abuse.

But this week the balding, diminutive bulldog of the House looked like a new grandpa eager to hand out cigars.

Mr. Waxman’s magical transformation turned on four words: November (when his party won control of both houses of congress); chairman (to which he was elevated by the election results); subpoena (the legal power to summon reluctant witnesses to testify at hearings, an authority reserved to the majority); and control (the power of the majority party to determine which issues get voted on the floor of the House and which ones die).

On that floor this week, Waxman led a successful charge for passage of no less than five bills designed to pull back the curtain of secrecy that has been a hallmark of the Bush Administration. Most of these bills had been languishing for years. All passed the House with varying degrees of Republican support.

The legislation included: The Whistleblower Protection Enhancement Act, which extends whistleblower protections to federal workers and contractors who specialize in national security issues; the Presidential Library Donation Reform Act, which requires that all organizations established for the purpose of raising funds for presidential libraries or their related facilities report on a quarterly basis all contributions of $200 or more; the Freedom of Information Act Amendments, which contains a dozen substantive provisions designed to increase public access to government information by strengthening the Freedom of Information Act (FOIA); and the Accountability in Contracting Act, which limits the length of noncompetitive contracts, minimizes no-bid and cost-plus contracts, requires public disclosure of justifications for no-bid contracts and disclosure of contractor overcharges, and provides additional funding for contract oversight.

Arguably, the Whistleblower Protection measure has been the most contentious. While there has been protection for whistleblowers who are federal employees, this has not covered those who work in agencies that deal with national security issues.

Both the House and Senate have held numerous hearings featuring testimony chronicling the travails of these whistleblowers – ranging from revocation of their security clearances to dismissal. But neither body has enacted legislation on the subject.

The five Waxman bills now go on to the Senate. Legislation similar to some of the five have been introduced in previous congresses, but never debated or passed. Congressional observers give this new legislation more than a fighting chance of passage.

However, President Bush has already signaled that he will veto the whistleblowers’ legislation. A memo to the committee from the Office of Management and Budget says, “It could compromise national security, is unconstitutional, and is overly burdensome and unnecessary.”

The bill, OMB says, “would expand, for the first time, whistleblower protections to employees at national security agencies who disclose classified information to Congress. H.R. 985 would permit an employee to make an individualized determination – without further review and perhaps without all relevant information – to disclose classified information. Such an independent, uncoordinated decision to disclose classified information could jeopardize not only national security programs, but also the security of the people involved in such programs.”

OMB adds, “Rather than promote and protect genuine disclosures of matters of real public concern, it would likely increase the number of frivolous complaints and waste resources. If (the bill) were presented to the President, his senior advisors would recommend that he veto the bill.”

Waxman’s committee takes a decidedly different view. “These are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified information on a routine basis. Our own government has concluded that they can be trusted to work on the most sensitive law enforcement and intelligence projects. This bill would finally give these courageous individuals the protection they deserve, ”the panel says.

The proposed legislation would also ensure that employees who work for companies with government contracts are protected when they report waste, fraud, and abuse of U.S. taxpayer dollars. Existing legal protections for these employees are deficient, and often they fear that reporting an abuse of taxpayer dollars will cost them their jobs.

Another provision includes a clarification regarding disclosure of actions that threaten the integrity of federal science. Over the last few years, the politicization of science has been rampant. It is important that employees who see such examples know that they are eligible for whistleblower protection, and that our science-based agencies get the clear message that retaliating against these employees is unacceptable.

The bill responds to court decisions by the U.S. Court of Appeals for the Federal Circuit limiting the scope of disclosures protected under current law. It clarifies that “any” disclosure regarding waste, fraud, or abuse means “without restriction as to time, place, form, motive, context, or prior disclosure” and includes formal or informal communication. The bill also provides that a whistleblower can rebut the presumption that a federal official performed his or her duties in accordance with the law by providing substantial evidence to the contrary. The Federal Circuit has required a higher standard, irrefutable proof, to rebut this presumption. Furthermore, the bill allows whistleblowers access to federal district courts if the Merit Systems Protection Board (MSPB) does not take action on their claims within 180 days.

Testimony previously presented to Congress highlights the dilemma facing national security whistleblowers. It is a litany of retaliations taken against people who have spoken out about abuse of Iraqi prisoners at Abu Ghraib, illicit federal wiretapping, and other alleged misconduct.

Perhaps the most high-profile example is Sibel Edmonds. She began working for the FBI shortly after the Sept. 11 attacks, translating top-secret documents pertaining to suspected terrorists. She was fired in the spring of 2002 after reporting concerns about sabotage, intimidation, corruption, and incompetence to superiors. In October 2002, at the request of FBI Director Robert Mueller, then Attorney General John Ashcroft imposed a gag order on Ms. Edmonds, citing possible damage to diplomatic relations or national security. Ms. Edmonds sued and appealed her case all the way to the Supreme Court. But the high court agreed with lower courts that trying her case would compromise “state secrets.”

Ms. Edmonds is the founder of the National Security Whistleblowers Coalition (NSWBC). She told us, “National Security employees’ should not have to sacrifice their careers or financial security in doing what is right. Good employees are being chased out of jobs and fired by those who either are engaged in wrongful behavior or don’t want to hear about.”

She added, “A national security employee has to choose between career and conscience when confronted with agency wrongdoing. We need to adopt protections for employees that allow them to be secure in their jobs and encourage them to report waste, fraud, and abuse of power.”

The stories congress has heard from others are equally troublesome. For example:

Specialist Samuel Provance said he was demoted and humiliated after telling a general investigating the Abu Ghraib scandal that senior officers had covered up detainee abuses at Abu Ghraib. He said he tried to tell the general “things he didn’t want to hear,” adding, "Young soldiers were scapegoated while superiors misrepresented what had happened and tried to misdirect attention away from what was really going on." Provance lost his security clearance, was placed under a “gag order,” and is now stationed in Germany, where his responsibilities consist of "picking up trash and guard duty.”

Lt. Col. Anthony Shaffer was among the first to allege that the Pentagon ran a data-mining program known as “Able Danger.” He said he believes that the program identified Mohammed Atta before he became the lead hijacker in the 2001 terrorist attacks, though a Pentagon review found no evidence to support that conclusion. Shaffer’s security clearance was revoked.

Russell Tice, a former intelligence officer at the National Security Agency (NSA), charged that there were "illegalities and unconstitutional activity" in the agency’s so-called ‘special-access programs’ but was advised that he could not discuss them even with members of the Senate and House Intelligence Committees in closed session. He told the Committee the Defense Department’s harassment of him included spreading rumors that he suffers from bipolar disease.

Mike German resigned as an FBI agent after reporting that other agents and managers mishandled a major counterterrorism case in 2002 and falsified records. The Justice Department inspector general confirmed German's allegations, and that he was retaliated against – his security clearance was revoked.

Richard Levernier's job as a senior Department of Energy nuclear security specialist was to test how well prepared America's nuclear weapons sites were to defend against a terrorist attack. He testified that the tests he supervised showed a 50 percent failure rate. When he reported this to his superiors, he was demoted and his security clearance revoked. He says he was forced into early retirement.

Bunnatine H. "Bunny" Greenhouse, the senior contracting officer for the Army Corps of Engineers, objected -- first, internally, then publicly -- to a multi-billion dollar, no-bid contract with the Halliburton Company for work in Iraq. She was removed from the senior executive service, the top rank of civilian government employees, because of “poor performance reviews.” But Greenhouse's attorney, Michael D. Kohn, says the performance reviews "were conducted by the very subjects" of Greenhouse's allegations…” Greenhouse went public with her concerns over the volume of Iraq-related work given to Halliburton by the Corps without competition, but her complaints within the agency were ignored. She started gave interviews to national publications and testified before a Democrat-sponsored Capitol Hill event on contracting in Iraq.

"I can unequivocally state that the abuse related to contracts awarded to (Halliburton subsidiary) KBR represents the most blatant and improper abuse I have witnessed" in 20 years working on government contracts, Greenhouse said.

All these witnesses said they tried to follow the chain of command for reporting wrongdoing, but were rebuffed or stonewalled. Some started by going to their immediate supervisors; others went to the Inspectors General of their agencies; a few eventually told their stories to congresspersons or to the media.

The timing of the House vote on the Waxman legislation could not have been more appropriate. It came during Sunshine Week, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, non-profits, schools and others interested in the public's right to know.

Whether the Bush Administration supports that right remains to be seen.

Monday, March 12, 2007


By William Fisher

During his recent swearing-in of retired Vice Adm. Mike McConnell as the second director of national intelligence, President Bush ordered the nation’s national security agencies to mount a major push to increase the recruiting of people with the language skills and cultural background to collect information on al-Qaida and other terrorist groups.

Both the president and McConnell highlighted on the consistent failure of American intelligence-gathering to hire operatives who speak languages such as Arabic or Farsi.

"The old policies have hampered some common-sense reforms, such as hiring first-and second-generation Americans who possess native language skills, cultural insights and a keen understanding of the threats we face," McConnell said.

Emblematic of the foreign language deficit is the fact that of the 1,000 employees of the massive new U.S. Embassy inside the Green Zone bubble in Baghdad, there are only six who are fluent in Arabic.

Indeed, the shortage of Arabic speakers was one of the red flags the State Department sent to Defense Secretary Donald Rumsfeld before the invasion of Iraq. Such advice appears to have been largely ignored, particularly as it came from the Pentagon’s chief rival. And most diplomatic sources say that even if the new DOD chief, Robert Gates, is prepared to heed that kind of counsel, it may be too late for it to make any difference because producing home-grown Arabic speakers takes years.

President Bush appears to have understood the importance of the issue; in 2005 he ordered then-CIA Director Porter Goss to increase the number of Arabic-speakers by 50 per cent. The CIA – and the FBI, the DOD, and the Department of Homeland Security – all failed to meet that goal. What they did achieve was an exponential increase in job applications from Arabic speakers.

That was largely the result of a recruiting binge by the national security agencies. For example, they offered generous sign-on bonuses of up to $25,000 for new hires fluent in Arabic and other crucial languages. They participated in college job fairs. The CIA placed ads in local newspapers in communities where there is a heavy concentration of Arab-Americans. One featured a photo of the Statue of Liberty with the words: "For over 100 years, Arab Americans have served the nation. Today we need you more than ever."

The intelligence reorganization law signed by the president also authorized the Agency to study so-called ‘heritage communities’ such as metropolitan Detroit’s Arab populations with foreign language abilities. It also earmarked money for a pilot program to recruit foreign-language speakers into a civilian linguist reserve corps.

But numerous intelligence and foreign policy scholars, as well as representatives of the American Muslim community, are expressing serious doubts that McConnell and the nation’s 16 intelligence-gathering agencies can make serious progress in recruiting substantial numbers of recruits.

Many believe that the Bush Administration has been sending mixed signals to American Muslims – the most likely source of new recruits into the intelligence community. On the one hand, they say, agencies like the FBI and the CIA, the State Department, and the Department of Homeland Security have been conducting a “recruiting blitz” for some time now, with disappointing results.

There appear to be a number of reasons. But Muslim American leaders assign much of the failure to the reality that the very agencies engaging in outreach programs are at the same time harassing the American Muslim community and exploiting public fears that stem from the 9/11 attacks.

They charge that the techniques being used include secret eavesdropping and surveillance, racial profiling at the nation’s airports, holding widely publicized press conferences to announce “high profile” criminal charges that frequently fizzle out before they ever come to court, and shutting down charities supporting Muslim causes as fronts for the support of terrorist organizations.

The public at large is also fearful and suspicious of Arab- and other Muslim-Americans. Recent polls indicate that almost half of Americans have a negative perception of Islam and that one in four of those surveyed have "extreme" anti-Muslim views. A survey by the Council on American Islamic Relations (CAIR) found that a quarter of Americans consistently believe stereotypes such as: "Muslims value life less than other people" and "The Muslim religion teaches violence and hatred."

In 2005, CAIR received 1,972 civil rights complaints, compared to 1,522 in 2004. This constitutes a 29.6 percent increase in the total number of complaints of anti-Muslim harassment, violence, and discriminatory treatment from 2004. Today, the number continues to increase.

Prominent members of America’s evangelical community have joined the Muslim-bashing. Religious leaders, such as the Rev. Franklin Graham, the Rev. Jerry Falwell, and the Rev. Jerry Vines, past president of the Southern Baptist Convention, have publicly branding Islam, or Islam's prophet Muhammad, as inherently evil and violent.

Graham, son of the evangelist Billy Graham and head of a global missions agency, Samaritan's Purse, said that Islam was ''a very evil and wicked religion.'' Vines described Muhammad as ''a demon-possessed pedophile.'' Falwell said in a ''60 Minutes'' interview that ''Muhammad was a terrorist.''

This rise of “Islamophobia” can be traced back to 9/11, when the U.S. Department of Justice began rounding up Arabs and other Muslims and – mistakenly – anybody who looked “Middle Eastern,” including Sikhs from South Asia. In the months after the attacks, some 5,000 men were held in detention without charges, most without access to lawyers or family members. As confirmed in an investigation by the DOJ Inspector-General, many were held in solitary confinement and physically abused.

There were no prosecutions and no convictions of any of these people. Some, who were in the U.S. with expired visas or who had committed other immigration infractions, were deported.

What is the impact on Muslims and other Americans of Arab descent? One, who spoke on condition of anonymity, said, “It sometimes feels suffocating being in the US now. We cannot turn on our TV in the evening to watch CNN or MSNBC or the other ‘news stations’ because of people like Glenn Beck and others who consistently spew hate, nonsense and misinformation about Islam and Arabs on primetime. And if we try to watch mindless drama on TV we are bombarded with shows about Middle East/Arab and Islamic terrorism -- shows like 24, Sleeper Cell, The Agency, etc. It is very difficult being an Arab/Muslim American these days.”

But there are also less dramatic and more prosaic reasons as well. For example, American education has long neglected foreign language study and American students have for years shown little appetite for learning them; Arabic is a particularly difficult language to learn. While the number of college-level Arabic language students has increased substantially since the attacks of 9/11, many drop out and even those who complete their courses will not come anywhere near qualifying as fluent.

Another reason is the Byzantine bureaucracy associated with receiving security clearances. The FBI says that since Sept. 11, the agency has processed 30,000 applicants for jobs as linguists in Arabic, Farsi, and other tongues. But it points out that "out of 20 applicants, we'd be lucky to get one or two."

So what has happened to these applicants? Many have been rejected after – or before –their first interview. Many more have been waiting years for their security clearances. Among these job-seekers, by the time those clearances arrive, applicants have already found other jobs.

But the key constraint appears to be that Arab and Muslim-Americans are frequently rejected for security clearances on the preposterous basis that they have contacts in the Middle East – like friends and families. Recruiters are particularly hesitant to approve people in this group of applicants; none wants to be the guy who approves the next “sleeping Osama.”

The shortage is no less acute at the State Department. A bipartisan State Department advisory panel on public diplomacy, headed by Edward Djerejian, a former ambassador to Israel and Syria, found that only 54 of 279 Arabic speakers employed by State were fluent. Of those, only six were fluent enough to appear on Arabic television programs.

Many other forms of more and less subtle discrimination are also taking place. For example, seven Muslims who have been waiting years to become U.S. citizens were finally notified that their applications had been approved, but only after they joined a lawsuit accusing immigration officials of illegally delaying background checks and allowing applications to linger indefinitely. In Texas, three Muslim Americans wrongly accused of planning a terrorist attack on a Michigan bridge, and having their bank accounts closed and their neighbors accuse them of being terrorists, demanded that authorities issue a public apology for targeting them because of their race. And an internal investigation by the Justice Department concluded there was "reasonable cause" to believe that senior FBI officials retaliated against the bureau's highest-ranking Arabic speaker for complaining that he was cut out of terrorism cases despite his expertise.

Such developments obviously have an influence on Muslim-American attitudes and, indirectly, on the ability of intelligence agencies to recruit these individuals.

According to the Heritage Foundation, a Washington-based think tank, their failure to do so has resulted in analysts at the CIA, the FBI, the Defense Intelligence Agency, and the National Security Agency, finding themselves “awash in untranslated gleanings of intelligence” in Arabic.

Some U.S. Government spokespersons acknowledge the complaints of American Arabs and Muslims. For example, head of the civil rights division of the Department of Homeland Security, says fighting terrorism while respecting civil rights involves "difficult challenges." He adds that the government needs the help of these groups to fight terrorism at home: "Homeland security isn't gonna be won by people sitting in a building inside the Beltway, " he says.

But many Muslim and Arab Americans believe that official bridge building is thinly-disguised propaganda.

In Dearborn, Michigan, which is home to the largest Muslim-American concentration in the U.S., community activist Kenwah Dabaja, told the Los Angeles Times that government "outreach" was a misnomer. "It's not about reaching out to us and including us. It's not really outreach. To some it's recruiting and propaganda spreading," she said, adding there was a need for genuine closer ties.

Some community members also feared they were under surveillance, especially after the disclosure of domestic wiretapping as part of counterterrorism efforts.

A Dearborn Imam praised the regular meetings senior administration and law enforcement officials have held with community leaders such as him, but he said it wasn't enough.

"Outreach means that you treat me equally and respect me like any other U.S. citizen. You don't look at me with a suspicious eye unless you have overwhelming evidence," he said.

Samer Shehata, professor of Arab Politics at Georgetown University, probably speaks for the feelings in the most of the U.S. Muslim community, “Quite simply,” he told me, Islamophobia “produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc.”

Prof. Shehata adds, “This is damaging certainly for all Americans and it is also damaging for the reputation of the U.S. overseas. One of the questions I hear the most whenever I am in Egypt and other parts of the Middle East is: how is it like now in the U.S. for Arabs? Have you been the victim of discrimination, bigotry, abuse?”

How intelligence czar McConnell will fare in carrying out the Bush mandate remains to be seen. But, given the attitudes of Muslim Americans and the cautious bureaucracy of our intelligence agencies, it’s likely to be a steep uphill climb.

Tuesday, March 06, 2007


By William Fisher

Two of the Bush Administration’s signature issues may soon face further challenges in the U.S. Supreme Court. In one case, the high court will be asked to review lower court decisions upholding the constitutionality of the Military Commissions Act. In the other, lawyers may contest the government’s use of the so-called ‘state secrets privilege’ in a case involving the practice of “extraordinary rendition.”

Both cases are being seen as tests of the court’s commitment to more open government and to the constitutional concept of checks and balances between the executive and legislative branches of government. And both are likely to cast a spotlight on the new prominence of Justice Anthony Kennedy, who has become the ‘moderate swing vote’ in close court decisions since the retirement of Justice Sandra Day O’Connor last year. Justice O’Connor was frequently the “5” in 5-4 court decisions.

The Center for Constitutional Rights (CCR), a New York-based legal advocacy organization, yesterday (March 5) asked the Supreme Court to review a lower court decision dismissing cases filed on behalf of detainees at Guantánamo Bay. The Court is expected to grant review and is being asked to hear the cases in May. Under this schedule, the Court would likely hand down a decision in June or July.

These would be the first cases argued before the Supreme Court challenging the constitutionality of the Military Commissions Act of 2006 (MCA). The MCA, which the Bush administration hurriedly pushed through Congress, was signed into law by the President in October 2006. It was the second attempt by the Bush administration to strip detainees of their statutory right to challenge their detention in the courts.

The Supreme Court has affirmed this right in two previous cases -- Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006. The Court held in Rasul that Guantánamo is not beyond the reach of US law and that the detainees there have the right to challenge their detention in US courts, and directed the lower courts to consider the merits of those challenges. It reaffirmed that ruling in Hamdan. This would be the third time the Court takes up the issue.

Despite the Court's two previous rulings, nearly 400 detainees still remain imprisoned at Guantánamo Bay without charge or trial, never having had any meaningful chance to show that they deserve to be released.

By stripping federal civilian courts of jurisdiction to hear habeas corpus petitions, the MCA gave President Bush the right to indefinitely hold detainees outside the US without charges.

The appeals court's majority decision found that overruling the MCA would "defy the will of Congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

In her appeals court dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed apply to foreign nationals outside the US and that the lawmakers' action had "exceeded the powers of Congress." The US Constitution stipulates that habeas may be suspended only "when in cases of rebellion or invasion the public safety may require it." This is likely to be at the heart of the appeal to the Supreme Court.

The US Justice Department expressed approval of the ruling. It believes that foreign detainees enjoy no constitutional rights when they are detained in other countries.

Shayana Kadidal, supervising attorney of CCR's Guantánamo Global Justice Initiative, said, "The Supreme Court has twice ruled in favor of the detainees. Yet hundreds of men have been imprisoned for more than five years without ever having a fair hearing because the administration, the lower courts and Congress have effectively ignored those rulings. The Court needs to make plain for the third time that it meant what it said."

The current appeal to the nation’s highest court involves two cases. Al Odah v. United States consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court's Rasul decision. Boumediene v. United States involves six Bosnian-Algerian humanitarian workers seized by the US military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention and ordered local authorities to release them.

In Al Odah, Senior US District Court Judge Joyce Hens Green held that detainees possess "the fundamental right to due process of law under the Fifth Amendment" and that certain detainees are protected by the Geneva Conventions. US District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were argued together on appeal. The Court of Appeals took nearly two years to decide the cases.

The MCA is also facing legislative challenges. Congressional Democrats -- now a majority in both houses -- have already introduced bills, one co-sponsored by a powerful Republican, to amend the MCA and restore habeas rights for detainees.

Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, and that committee's senior Republican, Senator Arlen Specter of Pennsylvania, have introduced a bill that would restore habeas corpus rights.

Another bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.

Shayana Kadidal, managing attorney of the Center for Constitutional Rights (CCR) Guantanamo Global Justice Initiative, pointed out that the MCA "also allows for evidence obtained through torture -- a violation of the Geneva Conventions -- and greatly widens the scope of who the president can label an 'enemy combatant'."

The second case involves a German citizen, Khalid El-Masri, who was on vacation in Macedonia when he was kidnapped and transported to a CIA-run "black site" in Afghanistan. After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation. He was never charged with a crime.

With the help of the American Civil Liberties Union, El-Masri sued former CIA director George Tenet, other CIA officials, and four US-based aviation corporations, with violations of US and universal human rights laws. El-Masri claims he was “victimized by the CIA's policy of ‘extraordinary rendition’." He is seeking an apology from the CIA.

The US Government responded to the suit by invoking the “state secrets privilege”, arguing that a public trial of a lawsuit against a former head of the Central Intelligence Agency for abducting and imprisoning a German citizen would lead to disclosure of information harmful to US national security.

The US Court of Appeals recently ruled in favor of the Government, opening the way for a challenge in the US Supreme Court. ACLU lawyers are currently considering such an appeal, contending that the Bush Administration’s frequent use of the state secrets privilege is little more than legal sleight-of-hand to keep illegal or embarrassing information hidden from public scrutiny.

Once rarely used, the “state secrets privilege” has over the past five years become a routine defense used by the US Government to keep cases from being tried.

The privilege is based on a series of US legal precedents allowing the federal government to dismiss legal cases that it claims would threaten foreign policy, military intelligence, or national security.

A relic of the Cold War with the former Soviet Union, it has been invoked numerous times since the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon. Judges have denied the privilege on only five occasions.

It was used against Sibel Edmonds, a former FBI translator, who was fired in retaliation for reporting security breaches and possible espionage within the Bureau. Lower courts dismissed the case when former Attorney General John Ashcroft invoked the state secrets privilege and the Supreme Court upheld that decision. It has also been used to block legal actions by other “whistleblowers” who work in the national security field.

The privilege was also invoked to stop the suit brought by Maher Arar, a Syrian-born Canadian citizen who was stopped at New York’s John F. Kennedy airport on his way back to Canada from a vacation in North Africa, detained for several days without access to a lawyer or to his family, and then flown to Syria, where he was imprisoned and tortured for 10 months. He was released without charges.

A two-year investigation by a Canadian Commission found that the Canadian Government had provided the US with false information and that there was no basis for believing Arar had any connection with terrorists. Canada issued an apology and paid Arar more than $2 million in damages. The head of the Royal Canadian Mounted Police resigned over the matter.

The US Government has consistently refused to discuss details of the case.
However, Secretary of State Condoleeza Rice has admitted El-Masri’s kidnapping and detention was the result of a “mistake” by the CIA. The incident threatened to sour US relations with Germany following the election of Angela Merkel as Chancellor. Rice traveled to Europe in an attempt to repair the damage following Germany’s opposition to the American invasion of Iraq.

The ACLU believes “there is an acute need for clarification of the state secrets doctrine because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court.”

The Lebanese-born Al-Masri says he took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days, without access to anyone, including his wife.

He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He claims he was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania. He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan.

The aviation companies accused of transporting him during his detention are also protected by the “state secrets” privilege.

El-Masri’s suit seeks an explanation and an apology from the CIA.

If the El-Masri suit goes forward to the Supreme Court, it will also shine a bright light on the US practice of “extraordinary rendition,” which involves sending persons detained by the US to prisons in countries known to practice torture.

According to Michael Scheuer, a 22-year veteran of the CIA who resigned from the agency in 2004, the practice started in 1995 during the Clinton Administration as a means of holding and interrogating people suspected of having ties to Al Qaida and Osama Bin Laden.

Secretary of State Rice has defended the practice, saying it was a vital tool in the war on terror. However, she has insisted that the U.S. does not "send anyone to a country to be tortured."

"The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured," she said. "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."

But most human rights and foreign affairs experts believe that such “diplomatic assurances” are worthless. They say there is ample evidence that detainees who are “rendered” to other countries are frequently subjected to torture. The US has rendered prisoners to a number of countries that have notoriously poor human rights records, including Egypt, Jordan, Syria, Afghanistan and Algeria, as well as to suspected CIA secret prisons in Eastern Europe.

The existence of the Eastern European prisons was revealed by the Washington Post. The Post reported that prisoners were routinely tortured, using such techniques as “waterboarding” – submerging a prisoner in restraints in water to convince him he was drowning -- mock execution, prolonged shackling, being threatened with dogs, and "cold cell," in which prisoners are held naked in low temperatures and doused with cold water.

Rendition is known to have been a CIA practice for some years. But its frequency increased exponentially after 9/11, with reportedly dozens of prisoners being kidnapped from Italy, Sweden and other European countries. Italy has recently indicted a number of US citizens, believed to be CIA agents, for kidnapping an Italian citizen on Italian soil. The US has indicated that the accused will not be extradited to stand trial.

Earlier, a report by investigators for the European Parliament said they had evidence that the CIA had flown 1,000 undeclared flights over Europe since 2001, in some cases transporting terrorist suspects abducted within the European Union to countries known to use torture.