Friday, August 24, 2007


By William Fisher

The Constitutional scholars who represented extraordinary rendition victim Maher Arar charge that America is losing the war on terrorism and the civil rights of its citizens because of Bush Administration policies.

In a new book, "Less Safe, Less Free: Why America is Losing the War on Terror," law professors David Cole and Jules Lobel argue that the problem lies in the aggressive "preventive paradigm" the Bush administration adopted in the wake of 9/11.

The authors note that the Bush administration "is fond of reminding us that no terrorist attacks have occurred on domestic soil since 9/11, but they ask, "Has the administration's 'war on terror' actually made us safer?"

Their answer: "While the 'preventive paradigm' can point to few gains in our security, it has come at great cost to our ideals. In the name of preemptive security, the administration has undertaken torture; indefinite detention without trial; extraordinary renditions; disappearances into CIA 'black sites'; warrantless wiretapping of American citizens, and an illegal and disastrous war in Iraq."

These measures, they add, "constitute the core of the 'preventive paradigm', and have compromised the most basic commitments of the rule of law. And by doing so they have actually impeded our efforts to bring known terrorists to trial, limited our long-term options for security, sparked anti-American resentment and terrorist recruitment, and undermined relations even with our closest allies."

The authors offer an alternative vision for combating terrorists while preserving the rule of law. Their approach is based on "noncoercive measures and multilateral cooperation, relies on the 'soft power' of foreign relations rather than military might, and recognizes that where coercion is necessary and appropriate, it must adhere to basic legal rules, treating the rule of law as an asset, not an obstacle, in the struggle to keep us safe and free."

In an online interview with Truthout, Cole said, "This book shows that if we are to be safe in the twenty-first century, we need to be smart about counterterrorism, not just act tough. The Bush administration's 'war on terror', by adopting coercive preventive measures, has not only sacrificed some of the deepest commitments of our democracy, but has garnered few terrorists and actually made us less safe. We need to treat the rule of law as an asset, not an obstacle, if we are to avoid creating a problem even bigger than the one we faced on 9/11."

Cole, considered one of the nation's preeminent Constitutional scholars, is a professor at the Georgetown University Law Center. With other lawyers at the Center for Constitutional Rights (CCR), a legal advocacy group, he represents Maher Arar, the Canadian citizen who was rendered to Syria where he was tortured. He is also working with Arab and Muslim foreign nationals rounded up and abused in the immediate aftermath of the 9/11 attacks, and is currently challenging the constitutionality of the laws making it a crime to provide "material support" to groups designated as terrorists.

David Lobel, a CCR vice-president, is a law professor at the University of Pittsburgh. He also represents Arar, has consulted on Guantanamo Bay cases, and has worked with American servicemen challenging the army's unilateral extension of their contracts.

Maher Arar, a Syrian-born, Canadian citizen, was detained during a layover at JFK International airport in September 2002, on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied access to a lawyer. The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture.

Arar sued former Attorney General John Ashcroft, FBI Director Robert Mueller, and then-Secretary of Homeland Security Tom Ridge, as well as numerous US immigration officials. His case was dismissed when the government invoked the 'state secrets' privilege, contending that hearing the case in open court would compromise US national security. His case was dismissed and is currently being appealed.

In September 2006, after a two-year probe, the Commission of Inquiry established by the Canadian Government to "Investigate the Actions of Canadian Officials in Relation to Mr. Arar" concluded "categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada." Canadian investigators, with US cooperation, exhaustively investigated Arar and found no information that could implicate him in terrorist activities. The Canadian Government paid him $10 million.

In January 2007, after months of negotiations between the Canadian government and Arar's Canadian legal counsel, Prime Minister Stephen Harper issued a formal apology to Arar on behalf of the Canadian government.

Harper released a copy of a letter sent to Arar, apologizing "for any role Canadian officials may have played in what happened to Mr. Arar, Monia Mazigh and their family...."

Despite the inquiry's exoneration of Arar, the United States has also refused to remove Arar from its watchlist.He now lives in British Columbia.

Harper again called on Washington to remove Maher Arar from its no-fly and terrorist watch lists. He reiterated that Canada would keep pressing the United States to clear Arar's name.

Authors Cole and Lobel say their new book represents the first comprehensive review of the administration's record in fighting terrorism. They argue that 'preemptive coercion' "has not only compromised our most basic values, but has little to show in terms of captured terrorists, disrupted terrorist plots, or increased security."

They cite the July 2007 National Intelligence Estimate, which found that al Qaeda has fully reconstituted itself in Pakistan's border region. "Worldwide terrorist attacks have grown dramatically since 2001. And most experts agree that independent terrorist groups, from al Qaeda in Iraq to the individuals who bombed subways and buses in London and Madrid, have multiplied since 9/11. Meanwhile, despite its boasts, the total number of individuals the Bush administration has convicted of engaging in a terrorist act is one (Richard Reid, the shoe-bomber)."

The authors calculate that the administration's record in its anti-terrorism immigration initiatives after 9/11 is 0 for 93,000.

"These sweeping measures unearthed not a single convicted terrorist," they write, adding, "The administration's record in criminal 'terrorism' cases is not much better, as it has lost far more cases than it has won, and has brought almost no actual terrorists to justice. Similarly, by the government's own account, only about 5 percent of those it has held at Guantanamo were fighters for al Qaeda or the Taliban."

More than half the GITMO detainees former Defense Secretary Donald Rumsfeld and other senior US government officials once called "the worst of the worst" have been released. "The administration's preventive war in Iraq has also made the United States more vulnerable to terrorism, not less, as it has prompted the creation of suicidal organizations that did not even exist prior to 9/11 in response to American tactics," the authors say.

"The administration's response to 9/11 has not only compromised fundamental principles of the rule of law, but has actually made America less safe. They have launched an aggressive campaign they call the 'preventive paradigm', started a war that has sacrificed tens of thousands of lives and wasted untold resources, and sacrificed some of our most important liberties, yet they have little or nothing to show for it. Al Qaeda has reconstituted itself in Pakistan, independent groups have sprouted up all over the world, and meanwhile the administration has convicted exactly one person for an actual terrorist attempt since 9/11 - Richard Reid, the shoe bomber," Cole and Lobell write.

The 'preventive paradigm', they explain, "is an approach adopted by the administration right after 9/11, and given that name by then-Attorney General John Ashcroft. It emphasizes the use of highly coercive measures against people or states not for wrongs they have committed in the past, but on the basis of speculative guesses about what they might do in the future. It has included special registration of Arabs and Muslims, preventive detention, intensive surveillance, coercive interrogation, and a 'preventive war' in Iraq."

"In each instance," they charge, "the administration has argued that the measures must be used before we have strong evidence of wrongdoing. And as a result, the measures have been employed against many who pose no threat at all, and have been remarkably unsuccessful in identifying actual terrorists."

"The Government locked up over 5,000 foreign nationals in preventive detention in the first two years after 9/11, sought out 8,000 Arab and Muslim men for FBI interviews, and called in 80,000 Arab and Muslim foreign nationals for special registration, fingerprinting and photographing. The idea was that we might find a terrorist. But not one of these men has been convicted of a terrorist offense," the authors contend.

The authors say their new book offers "a straightforward common-sense assessment of how we have been doing in what the Bush administration calls the 'war on terror'.

"Particularly with Bush leaving office and a campaign for a new president in full swing, it's important that we look at how the administration's 'preventive paradigm' has worked," they say.

"And we think it's particularly important to address that question from two angles - what it has done to the principles for which this country stands at its best, and what it has meant for US security. We argue that the tactic of using coercive government measures 'preventively', based not on proven past wrongdoing but speculation about future threats, has led us to compromise the most basic principles of the rule of law - equality, fair procedures, checks and balances, and the like."

At the same time, they add, the book shows that these sacrifices have not netted much if any benefit from a security standpoint. "It has netted few real terrorists and disrupted few real plots. What's worse, it has backfired, as measures such as coercive interrogation, disappearances into secret CIA prisons, indefinite detention without trial at Guantanamo, and preventive war have sparked unprecedented levels of anti-Americanism worldwide, thereby increasing the likelihood that we will be attacked again."

The book argues that "one can be 'preventive' without using harsh measures like preventive detention, coercive interrogation, and preventive war. The rule of law permits a nation to do much to protect itself while staying true to principles of justice and equality. Measures such as safeguarding nuclear stockpiles around the world, outfitting first responders, protecting vulnerable infrastructure, and screening cargo and passengers more carefully have the potential to offer substantial protection, without the sacrifices in principle that the Bush administration's approach has entailed - and without the backlash that has followed."

Wednesday, August 22, 2007


By William Fisher

A senior State Department official who resigned in 2003 to protest the American invasion of Iraq is charging that the public diplomacy efforts of Bush confidante Karen Hughes have been in place for many years, are failing to win hearts and minds overseas, and are causing US diplomats to “feel like second-class citizens at the State Department.”

John Brown, now a Senior Fellow at the University of Southern California Center on Public Diplomacy, tells Truthout he finds much of the recent praise afforded Ms. Hughes misinformed and exaggerated.

For example, Brown points out that much of America’s best public diplomacy work has always been carried out by diplomats in US Embassies around the world. But today, he says, “public diplomacy officers overseas feel hampered by security requirements that limit their ability to be in touch and communicate with local audiences. Some of these security concerns may be legitimate, but they can be Washington-driven rather than determined by a real assessment of the local situation.”

Brown adds, “PD work is often not taken as seriously as it should by other elements in the Embassy ‘country team’ that consider outreach to host-country nationals in media, academic, and artistic circles, only a secondary aspect of a US diplomatic mission's work, such as reporting to Washington or assistance to American citizens overseas.”

His recommendation: “Bureaucratically, PD officers overseas should be given far greater flexibility and budgets to carry out their work. Ms. Hughes likes to announce one ‘new initiative’ after another that make her and the administration look good (she thinks), but what could make a difference (short of Bush policy changes, which of course is the most important factor in making US PD respectable) is the empowerment of our PD diplomats abroad so that they truly can ‘engage, inform and influence’ the best and the brightest in the countries where they are posted.”

Brown, a Princeton PhD, joined the Foreign Service in 1981 and served in London, Prague, Krakow, Kiev, Belgrade and Moscow. His diplomatic work focused on press and cultural affairs.

In 2003, Brown resigned from the State Department to protest the Iraq invasion. He wrote to then Secretary of State Colin Powell: “I cannot in good conscience support President Bush's war plans against Iraq." He said the President “has failed to explain clearly why our brave men and women in uniform should be ready to sacrifice their lives in a war on Iraq at this time; to lay out the full ramifications of this war, including the extent of innocent civilian casualties; to specify the economic costs of the war for ordinary Americans; to clarify how the war would help rid the world of terror; to take international public opinion against the war into serious consideration.”

“Throughout the globe,” he wrote, “the United States is becoming associated with the unjustified use of force. The president's disregard for views in other nations, borne out by his neglect of public diplomacy, is giving birth to an anti-American century.”

Brown takes issue with a number of recent assessments of Ms. Hughes’s work.

For example, he disagrees with the claim of foreign affairs analyst Nicholas Kralev who, writing in the Washington Times, said Hughes was “more aware of the nuances of US foreign policy, was strongly supportive of educational exchanges, had incorporated public diplomacy into the ‘consciousness’ of the State Department, and was streamlining the bureaucracy ‘to handle public diplomacy issues more efficiently’.”

On the contrary, Brown asserts, public diplomacy experts in US embassies abroad have been made to “feel like second-class citizens at the State Department.”

Similarly, Brown questions why Hughes is being credited with increasing foreign exchange programs. “Educational exchanges have existed for decades. And Bush's policies -- particularly in Iraq -- make Hughes's PD efforts appear hypocritical and propagandistic to overseas audiences. Put simply, in Iraq and elsewhere, we do not practice what we preach in our PD declarations about the need for mutual understanding, communication, and ‘listening to others’."

He says, “It's become quite fashionable to compare 21st century America with the Roman Empire. Like the Romans or not, at least they could not be accused of hypocrisy. They came, they saw, they conquered -- without blabbing on and on about the need for ‘mutual understanding’."

Hughes, a former Texas TV reporter and a key Bush Administration insider, was appointed Undersecretary of State for Public Diplomacy and Public Affairs in 2005.

She said recently, “For the first time, public diplomacy was recognized as a national security priority, and we got $50 million in the emergency supplemental. … we were able to show from our initial survey data that 87% of participants in our programs have a better understanding of the United States and 73% have more favorable attitudes toward our country as a result of their participation. …So we've really expanded our exchange programs. When I came, the year before I arrived, we had 27,000 people participate. This year we'll have almost 40,000. And I'm working on a budget where we're hoping to [increase participants] to more than 50,000. I've been an advocate for increasing the public diplomacy budget, and it has increased substantially since I've been here, from $677 million to $845 million…Last year we issued a record number of student visas, I think 591,000.”

Brown says, “I would love for someone with access to the proper records to check on the accuracy of these statistics.”

He also takes issue with William Rugh, who was ambassador to Yemen
from 1984 to 1987 and ambassador to the United Arab Emirates from 1992 to 1995. Writing in the Baltimore Sun last month, Rugh said Hughes had been unfairly criticized and asserted she was making “quiet progress.”

Rugh wrote:

"First, the undersecretary of state does not control the half of the traditional public diplomacy budget that goes for broadcasting (it is >under an independent board) or the Pentagon's huge information effort in Iraq and elsewhere.

“Second, 'public diplomacy' is not a panacea. Misinformation is widespread in
this world of 24/7 global chatter, and public diplomacy can help bring facts and reasoning into the ongoing discussion. But it alone cannot remake America's image abroad -- an image that is formed primarily by our policies and actions.

“Third, public diplomacy has not recovered from a decade of neglect when we
won the Cold War and Washington decided it was no longer necessary.

“The fourth reason criticism of Ms. Hughes is unfair is that there are no quick fixes. Public diplomacy includes long-term instruments such as education as well as explanations of policy, and she has taken important steps that will bear fruit in the long run.”

Brown charges that Rugh exaggerates Hughes's accomplishments. “He takes her completely at face value, without asking about her role (for example) in the
White House Iraq Group (WHIG) that led the country into war. He overlooks
many of her missteps, such as her disastrous ‘listening tour’ soon after she assumed her position.”

He asks, “If she is such a close confidante of the President, why hasn't she been able to solve some of the PD problems which (Rugh claims) she inherited?”

He also notes that the so-called “soft-power” programs Ms. Hughes claims credit for have existed for decades. “Whatever budgetary increases she has gotten for them are minimal, if you can trust her statistics. Just compare them with what the Pentagon gets to pay for its bases and golf courses.”

Brown contends that “it is Bush’s policies, not Hughes-propaganda masquerading as educational/cultural exchanges, that have the most impact on what foreign publics think about the United States. And these policies, widely considered overseas as unilateral and militaristic, show a near-total disregard for the opinions of mankind.”

He notes that “Ms. Hughes often speaks of the importance of the ‘diplomacy of deeds’. And indeed, the deeds of this administration tell the world far more about the current US regime than whatever public-diplomacy programs spinstress
Karen claims credit for. What are these deeds? A senseless war in Iraq, Guantanamo, Abu Ghraib -- just to name a few of the Bush atrocities that appall -- and kill -- our fellow human beings.”

The bottom line for Brown: “Never mind the polls that show America is more unpopular overseas than ever. After all, in the Bush world they create their own reality, and who cares about aliens who happen to share this planet with us Americans?”

Saturday, August 18, 2007


By William Fisher

The conviction of Jose Padilla - whose larger implications are being labeled by legal experts as one of today's most significant Constitutional issues - has been largely ignored by editorial writers at the nation's newspapers.

While hundreds of US dailies ran the story of the guilty verdict handed down against the Brooklyn-born "dirty bomber" last week, few front-paged the conviction, and the trial and its outcome drew editorial comment from only a relative handful of publications.

Among the exceptions was a small number of the naton's 1,400-plus newspapers that have consistently opposed the Bush Administration's approach to the "global war on terror" - and a few that have been staunch supporters of that approach.

Yet virtually all Constitutional scholars and civil liberties advocates remain outraged that a US citizen was held virtually incommunicado in a navy brig for years before getting his day in court.

While few express any support for Padilla, most view his case as raising critical issues that go far beyond his three-month Miami trial.

Their issues range from questioning the authority of the president to declare anyone, including a US citizen, an unlawful enemy combatant; the Constitution's guarantee of a speedy trial and the right to confront one's accusers; Padilla's capacity to participate in his own defense after allegedly being abused while being held in solitary confinement for more than three years; and the legality of the concept of prolonged "preventive detention."

Larry Cox, executive director of Amnesty USA, summed up the position of much of the civil liberties community. Padilla's trial, he said, "failed to address a key issue which poses a great threat to all Americans -- detention of a US citizen without charge, as well as alleged torture and ill-treatment during detention."

He added, the jury's verdict "cannot be seen as an endorsement of a regime of unreviewable executive detention. President Bush should not take today's ruling as permission to continue to hold Americans outside the law at his whim."

The Padilla story began in May 2002, when he stepped off a plane in Chicago and was met by federal agents armed with a material witness warrant, which enabled them to arrest him without a criminal charge.

Padilla spent a month in a jail in New York on that warrant, until President Bush declared him an enemy combatant, sparking a lengthy Legal battle over presidential powers to detain US citizens indefinitely.

During that period, then Attorney General John Ashcroft hastily called a news conference during a visit to Moscow to announce Padilla's arrest and his intention to detonate a radioactive "dirty bomb" in a major US city and to blow up apartment buildings.

Padilla was then transferred to a Navy brig in Charleston, S.C., where he was held incommunicado, refused access to a lawyer, and allegedly tortured. He was not charged with a crime or afforded basic constitutional rights until late 2005, when the Supreme Court was poised to consider his appeal.

His three-month trial opened in Broward County, where Padilla once lived. The 36-year-old and two co-defendants were quickly found guilty of conspiracy to murder, kidnap and maim people, as well as providing material support to terrorists. Between his arrest and his trial, the "dirty bomb" allegation disappeared. Unless his conviction is reversed on appeal, Padilla faces life imprisonment.

Padilla's conviction "is a significant victory in our efforts to fight the threat posed by terrorists and their supporters,'' Attorney General Alberto Gonzales said in a statement. "As this trial demonstrated, we will use our authority as prosecutors to dismantle terrorist networks and those who support them in the United States and abroad.''

During the period when Ashcroft and other Bush Administration officials were trumpeting the "dirty bomb" charges, some of the nation's editorial writers became cheerleaders for the Bush Administration's approach to counter-terrorism.

But most - with a few exceptions -- have been silent on the Padilla verdict. One of the exceptions is the Charleston S.C. Evening Post, which hailed the verdict as a "Double Victory" and a "resounding vindication of the Bush Administration's policy of preventing acts of terror."

Said its editorial page, "In May 2002, when Padilla was arrested, the major concern was to prevent another attack. Padilla wanted to carry out murder and mayhem on a similar scale of horror to 9/11. He was prevented from doing so and had his day in court. Score a victory for counter-terrorism and for American justice."

But most of the few newspapers that editorialized on the verdict took another view. Typical was the Sarasota (Fla.) Herald Tribune, which wrote, "Military courts have their place, and foreigners are not entitled to all the protections of US citizens. But Padilla was born in America and arrested on US soil. His case belonged in the US courts, where prosecutors finally demonstrated that they did, in fact, have a case against him."

Other Florida newspapers also weighed in editorially. The South Florida Sun-Sentinel opined, "There shouldn't be any displeasure that Jose Padilla was found guilty in a Miami courtroom of supporting terrorism. The speed in which the verdict was returned indicates the jury was convinced of his guilt. But there should be plenty of concern about how the entire case was mishandled by the federal government, and the Bush administration, which has its own definition of citizen rights and protections. It is hard for anyone to feel good about the way this case went forward.

"Some critics of Bush's strategy say the nation should rely less on military might to fight terrorism and focus more on tracking down al-Qaida and other groups through criminal investigations. The Padilla case indicated that charges against American citizens, at least, can be successfully prosecuted in civilian courts without resorting to secret military tribunals."

And the Daytona Beach News-Journal, an aggressively anti-Bush daily, said in an editorial entitled "Jose Padilla verdict masks a gross travesty", "A jury in Miami took less than two days to find Jose Padilla guilty of conspiracy to fund and support Islamic terrorism abroad. It's not quite the end of the story, if rights and due process are to matter at all in America.

"The Padilla verdict ...coming as it did at the end of a five-year odyssey of exaggerated accusations and stunning abuses of power against an American citizen, speaks more of the Bush administration's manipulation of fears, facts and prejudices to deceptive ends than of justice done. Why should this case matter to you? Because the abuses it entailed along the way have yet to be rectified either by Congress or the Supreme Court. Until then, what happened to Padilla can happen to anyone."

Nearby, the Palm Beach Post's editorial -- "Arbitrary Justice" -- oncluded: "Guilty, the right way." Meaning, in a civilian court.

Elsewhere, editorial coverage was arguably more predictable.

Said The New York Times, "It is hard to disagree with the jury's guilty verdict against Jose Padilla, the accused, but never formally charged, dirty bomber. But it would be a mistake to see it as a vindication for the Bush administration's serial abuse of the American legal system in the name of fighting terrorism. On the way to this verdict, the government repeatedly trampled on the Constitution, and its prosecution of Mr. Padilla was so cynical and inept that the crime he was convicted of - conspiracy to commit terrorism overseas - bears no relation to the ambitious plot to wreak mass destruction inside the United States, which the Justice Department first loudly proclaimed. Even with the guilty verdict, this conviction remains a shining example of how not to prosecute terrorism cases."

A similar note was struck by The Washington Post, which wrote, "Every person held by the government -- US citizen or not -- must have due process to challenge that detention. The presumption must be that US citizens can rely on the federal courts to oversee their prosecutions. And Mr. Padilla's abhorrent disappearance into limbo should come to be remembered as an aberration never to be repeated."

A somewhat different theme appeared in the Los Angeles Times. "Padilla's importance is in what it sanctions but did not decide: the government's confinement of US citizens without charges. Padilla's military detention and his treatment while detained may in fact have been unlawful. The Bush administration's real victory, then, was in preventing the courts from saying so."

Said The Baltimore Sun, "Jose Padilla was a petty criminal who found Islam in an American prison and thought that in jihad he could amount to something. He didn't: One government intelligence report suggests that the idea of a dirty bomb was a ruse to allow him to get away from the al-Qaida camp where he was staying. He's pathetic, actually. Yet because of someone like this, the Bush administration was willing to junk the Constitution and redefine the legal system as it saw fit. That's the real crime."

And the widely respected Christian Science Monitor wrote, "America can't win a global war to defend its values by stepping on them...One protection from Islamic terrorists lies in clinging to the civic virtues that terrorists seek to end. Such values are a source of safety and should not be eroded in trying to kill, capture - or prosecute - suspected terrorists. One of America's strengths in this war lies in being able to rally other nations to its side by upholding universal principles. That same strength also weakens terrorists."

Editorial writers will doubtless have another chance to weigh in on the issues raised by the Padilla prosecution - as he appeals his conviction.

According to Marjorie Cohn, president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, there are numerous avenues for appeal. She told Truthout, "The appeals court erred in upholding the government's authority to imprison a US citizen for several years without charges. The government violated Padilla's due process rights by failing to bring timely charges against him. Finally, Padilla's lawyers' motion to declare him incompetent to stand trial because of the torture and abuse to which the government subjected him during his pretrial detention was wrongly denied. Any of these errors, or all of them cumulatively, could result in reversal of Padilla's convictions on appeal."

But the consensus among civil libertarians is perhaps best summed up by one of the nation's leading Constitutional law experts. According to David Cole, Professor at Georgetown University Law Center, "The conviction shows that the government did not need to assert the extraordinary power to detain Padilla without charges for several years. But at the same time, because of how they treated Padilla in detention and others in CIA black sites, the government was never able to bring him to trial on the much more serious charges of plotting a 'dirty bomb' and blowing up apartments in the United States. In essence, the administration gambled that it could get Padilla on something, even if it couldn't hold him responsible for what they say he was planning to do. In this instance, they prevailed. But do we really want the government gambling with our national security?"

Whether editorial writers will opt to try to address that question next time around remains to be seen.

Sunday, August 12, 2007


By William Fisher

The Bush Administration's policies for treatment of prisoners in the
so-called "global war on terror" are being challenged by a consistently under-reported segment of America's "faith communities" - long dominated by right-wing televangelists such as James Dobson, Jerry Falwell and Pat Robertson.

A coalition of more than 125 Christian, Jewish, Muslim, Sikh and other religious organizations - collectively known as NRCAT, the National Religious Campaign Against Torture - is conducting an increasingly robust and sophisticated lobbying and grassroots action campaign to override an executive order by President Bush that permits the Central Intelligence Agency to use undefined "alternative interrogation techniques" in questioning alleged terror suspects.

According to NRCAT's organizer, Rev. George Hunsinger, a professor at the Princeton Theological Seminary, "More than 20,000 people of faith have endorsed NRCAT's Statement of Conscience", entitled, "Torture is a Moral Issue."

Heading the coalition is Linda Gustitus, former Chief of Staff to Senator Carl Levin (D-Michigan). Gustitus, a Washington attorney with 24 years of Capitol Hill experience, is a Unitarian and is also co-chair of the Washington Region Religious Campaign Against Torture (WRRCAT).

Coalition members include such prominent religious groups as Adventist Peace Fellowship, the American Baptist Churches USA, the Evangelical Lutheran Church in America, the Fellowship of Reconciliation, the General Board of Global Ministries of the United Methodist Church, the Islamic Society of North America, the Jewish Council for Public Affairs, the National Council of Churches, the Presbyterian Church (USA), the Union for Reform Judaism, and the World Sikh Council - American Region.

The focus of the Coalition's campaign is passage of legislation known as the "Restoring the Constitution Act of 2007," introduced in mid-February of this year by Sen. Chris Dodd (D-Ct.). It would repeal portions of the Military Commissions Act of 2006 (MCA). Similar legislation was introduced in the House of Representatives by Rep. Jerrold Nadler (D-NY) in March.

Ms. Gustitus called the Bush Executive Order "another shameful step in the US treatment of detainees in the 'war on terror'." She said, "As people of faith -- who value our common humanity and our religious responsibility to treat all people with decency and the due process protections of civilized law -- we urge the President immediately to stop the use of interrogation techniques that are cruel and inhuman, to disclose what the "alternative interrogation techniques" are, to close all secret prisons, to stop rendition to countries that torture and to give the International Red Cross access to detainees held in U.S. custody. We call on Congress to prohibit the use of any CIA funds for programs or activities that fail to treat all persons detained with decency and the protections of due process."

The Military Commissions Act, passed by Congress in late 2006, defined and established enemy combatant status, laid out procedures for Military Commissions trying those charged by the US with criminal violations in association with the administration's "global war on terror," authorized the president to define what acts constitute torture, and eliminated the protection of habeas corpus for non-citizen detainees.

The NRCAT coalition is also supporting pending legislation that would restore habeas corpus authority to the federal courts to hear habeas petitions from US-held detainees, and a bill that would stop the practice of 'extraordinary rendition' in which detainees are secretly sent to countries that have a known history of prisoner torture and other human rights abuses.

While Congress departed for its August recess without acting on the Dodd and similar legislation, Rev. Hunsinger told Truthout that NRCAT "will push for action in the fall." However, he predicted that "it is most likely the Dodd bill will be addressed piecemeal, in specific items, as opposed to the whole bill."

The reason, according to Hunsinger, is that "the coalition's strategy of trying to attach the habeas restoration legislation to the Defense Department authorization bill did not work" because Senate Republicans "threatened to filibuster."

The DOD authorization bill is scheduled to come up again in September.

The Dodd legislation reasserts US adherence to the Geneva Conventions, assuring humane treatment for all prisoners, military and civilian; prohibits evidence obtained through torture to be used in court; returns the US to outlawing hearsay testimony and testimony obtained through coercion; holds accountable those who have authorized or committed acts of torture; removes the power of the President to decide who is an "enemy combatant"; and restores detainees' right of habeas corpus to challenge the reason for their imprisonment.

The Bush executive order, issued last month following a series of court defeats of Administration detention policies, prohibits the use of torture but allows the CIA to continue to use undefined and undisclosed "alternative interrogation techniques."

NRCAT chair Gustitus says this caveat "calls into question whether the prohibition is real." In addition, she says, the executive order "does not close secret prisons nor prohibit sending detainees to countries which have been known to use torture in interrogation (rendition to torture), nor assure that every detainee has access to the International Red Cross."

Among NRCAT's more remarkable members are a number of heavy-hitters who are members of the Christian evangelical community, which has often remained silent on issues such as detainee torture and rendition while focusing on its more customary hot-button "values" issues like abortion and gay marriage.

One of NRCAT's more prominent evangelicals is Dr. David P. Gushee, Professor of Moral Philosophy at Union University, a leading Baptist institution located in Jackson, Tennessee. Gushee is also co-chair of Evangelicals for Human Rights (EHR).

Gushee was among a group of 17 prominent evangelical leaders and scholars who issued "An Evangelical Declaration Against Torture: Protecting Human Rights in an Age of Terror" last month.

Writing "as Christians and US citizens," the Declaration's authors declared:

"We renounce the resort to torture and cruel, inhuman and degrading treatment of detainees, call for the extension of procedural protections and human rights to all detainees, seek clear government-wide embrace of the Geneva Conventions, including those articles banning torture and cruel treatment of prisoners, and urge the reversal of any US government law, policy or practice that violates the moral standards outlined in this Declaration."

The Declaration was endorsed by board of the National Association of Evangelicals, a body claiming to represent 45,000 evangelical Protestant churches with 30 million members.

But it also drew sharp criticism from religious conservatives. Daniel R. Heimbach, a Southern Baptist professor of ethics at Southwestern Baptist Theological Seminary, called the evangelical Declaration a "diatribe" that was "confused and dangerous," mainly because it failed to pinpoint exactly where coercive interrogation crossed into torture.

And Mark D. Tooley, a leader of the neoconservative Institute on Religion and Democracy, charged that the Declaration was the work of "pseudo-pacifist academics and antiwar activists" who were contributing to "a barely disguised crusade against the US war against terror."

But for the 17 drafters, the Declaration's foundation was "the sanctity of human life, a moral status irrevocably bestowed by the Creator upon each person."

The Declaration strongly commended the recent changes in the Army Field Manual specifying forbidden practices. But it criticized the Bush administration's successful effort, through the Military Commissions Act, to exempt the CIA from such prohibitions and from rigorous judicial and Congressional oversight, to limit habeas corpus, and to loosen rules on the use of evidence and to allow indefinite detention of those the Administration designates unlawful enemy combatants.

These provisions, the Declaration says, "violate basic principles of due process" and "create the conditions in which further prisoner abuse is made more likely."

Polling on torture and terrorism conducted by the Pew Research Center in 2004, 2005 and 2006 found that a small majority of the public held that torture of "suspected terrorists in order to gain important information" could "never" or "rarely" be justified.

The survey found that in every religious group, those who said they worshiped weekly appeared only slightly more restrictive toward torture than less observant believers. The poll data also showed that white evangelicals were somewhat more permissive toward torture than other religious groups.

But Gushee says growing endorsement of EHR's Declaration "may mark the beginning of the triumph of 'Christ' over 'culture' on this issue in politically and theologically conservative America. Torture (or euphemisms for torture) cannot stand up to the scrutiny of the Scriptures."

Whether NRCAT can translate its theological position into successful political action remains to be determined after the August Congressional recess. If Capital Hill know-how was the key, the coalition might be home free. But influential politicians and powerful political forces promise a difficult uphill climb for NRCAT and its allies.

The obstacles include: Democrats do not have the super-majorities required to pass the Dodd bill and similar legislation in either the House or the Senate. The fall agendas in both House and Senate are already larger than the available time. Influential conservative Republican legislators such as Lindsay Graham of South Carolina, a former military lawyer and judge, have vowed to block any attempt to amend the Military Commissions Act. Democrats, looking toward the 2008 election, are unlikely to want to risk a Bush veto and charges that they are "soft on terrorism" and other national security concerns.

Given those conditions, many are doubtful that the 110th Congress will
make any meaningful progress on issues related to prisoner detention and interrogation.

Monday, August 06, 2007

Partisan Loyalties Hamper Reform of Immigration Asylum System

By William Fisher

More fuel may soon get thrown on the current fire over the credibility and competence of Attorney General Alberto Gonzales.

The reason is the recent disclosures that many DOJ-appointed judges charged with deciding whether to grant immigrants' requests for asylum in the United States, or deport them to countries where they could face harsh and inhumane persecution, are frequently chosen on the basis of party political affiliation, have little or no experience in immigration law, and lack nationally-uniform rules for decision-making.

Some of the results of what some critics are calling "cowboy justice" are jaw-dropping disparities in outcomes. For example, one judge is 1820% more likely to grant an asylum than another judge in the same courthouse, one US Court of Appeals is 1148% more likely to rule in favor of an asylum-seeker than another US Court of Appeals, and the fate of asylum-seekers is often decided not by the facts of the case but rather by a clerk's random assignment of an applicant to one asylum officer rather than another, or one immigration judge rather than another.

Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of US Courts of Appeals render about 77,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country.

The nation's 215 Immigration Judges are required to cope with filings of over 300,000 cases a year. With only 215 Judges, a single Judge has to dispose of 1,400 cases a year or nearly twenty-seven cases a week, or more than five each business day, simply to stay abreast of his docket.

A recent study published in the Stanford University Law Review concludes that "in the world of asylum adjudication, there is remarkable variation in decision-making from one official to the next, from one office to the next, from one region to the next, from one judicial circuit to the next, and from one year to the next, even during periods when there has been no intervening change in the law."

The study adds, "When an asylum seeker stands before an official or court who will decide whether she will be deported or can remain in the United States, the result may be determined as much or more by who that official is, or where the court is located, as it is by the facts and law of the case. The arguably arbitrary factors of place and time are particularly discomfiting in asylum cases, because the result of an erroneous decision that is unfavorable to the bona fide applicant is an order of deportation to a nation where she is in grave danger."

The study is entitled "Refugee Roulette:Disparities in Asylum Adjudication." Its authors are Jaya Ramji-Nogales of Temple Univeristy Law School, and Andrew I. Schoenholtz and Philip G. Scgrag, both of Georgetown Univeristy Law Center.

The study's authors found troubling trends at each stage of the asylum-seeking process. For example, when a negative decision of an immigration judge or the Board of Immigration Appeals (BIA) is taken to its last practical stop -- a Federal Court of Appeals -- factors unrelated to the merits of cases "significantly affect an appellant's chance of obtaining a remand."

These factors, the study found, include, at the Board of Immigration Appeals, a Republican Attorney General's 2002 decision to purge the Board of many members selected by his Democratic predecessor, and to require cursory opinions, at best, rather than careful analyses of appellants' contentions. At the Court of Appeals level, the most obvious extraneous factor affecting the outcomes of cases is the region of the country in which the asylum applicant happened to settle before filing his or her application."

The researchers found that "officers who adjudicate asylum applications in some of the eight regional offices of the Department of Homeland Security's Asylum Office appear to have grant rates that reflect personal outlooks rather than an office consensus. Over the course of a seven-year period, more than 20% of the asylum officers in three of these regional offices had grant rates for applicants from asylee-producing countries that deviated from the regional norm by more than 50%. In only three offices did fewer than 10% of the asylum officers have grant rates that deviated from the regional norm by more than 50%. In one office, there was so little consensus that most of the officers deviated from the office norm by more than 50%."

A large majority of asylum-seekers is not represented by lawyers. Unrepresented asylum applicants in immigration court win at a rate of 16% while represented applicants win at a rate of 46%. Many applicants have difficulty understanding English, and translators are either non-existent or of poor quality. If a case reaches a US Court of Appeals, the judge on that court is forced to make a decision on the basis of ordinarily cursory and incomplete notes rather than verbatim transcripts of lower court proceedings. The DOJ does not require transcripts and does not provide resources for their preparation.

The study also found that female asylum-seekers are more likely to win their appeal than males.

The study confirms many of the findings of an analysis carried out by The Washington Post, which found that politicization of the asylum-seeking process is as rampant among DOJ-appointed immigration officials as it has been shown to be among US Attorneys.

The Post found that "At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law...."

The newspaper added, "These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney."

The Post analysis -- the first systematic examination of appointees to immigration courts, the relationships that led to their selection, and the experience they brought to their position - offered a number of examples to support its conclusion that party partisanship is playing an increasing role in determining who is allowed to remain in the US.

For example, the Post says, "Two newly appointed immigration judges were failed candidates for the US Tax Court nominated by President Bush; one fudged his taxes and the other was deemed unqualified to be a tax judge by the nation's largest association of lawyers. Both were Republican loyalists. Justice officials also gave immigration judgeships to a New Jersey election law specialist who represented GOP candidates, a former treasurer of the Louisiana Republican Party, a White House domestic policy adviser and a conservative crusader against pornography."

The Post review was based on DOJ records and research into the backgrounds of the 37 current judges approved by Attorney General Gonzales or his predecessor, John D. Ashcroft, starting in 2004.

That year, The Post adds, "is when the Justice Department began to jettison the civil service process that traditionally guided the selections in favor of political considerations, according to sworn congressional testimony by one senior department official and a statement by the lawyer for another official."

Since the terrorist attacks of 9/11, the Bush administration has used the nation's immigration courts and its judges to deport hundreds of non-citizens who were detained as terrorism suspects but were never charged with crimes.

Since then, the DOJ has created stiffer guidelines and new rules that make it even more difficult for people the government doesn't want to remain in the country.

The DOJ's introduction of politics into judges' selection of judges was revealed in the Congressional testimonies of former Gonzales Chief of Staff Kyle Sampson and DOJ White House Liaison Monica Goodling. While these two witnesses did specify which immigration judges had been chosen because of their political orientations, The Post study reveals the Republican ties of many.

Sampson and Goodling testified that they were told the practice was legal. But Justice spokesman Dean Boyd said that immigration judges are considered civil service employees who may not be chosen based on political factors, unlike judges in federal criminal courts. Goodling admitted in her testimony that she "may have crossed the line."

Politics is not the only issue involved in hiring immigration judges. In 2005, the government's chief immigration lawyer in El Paso for 22 years filed a lawsuit claiming she was denied a judgeship twice in favor of less-qualified white men who were hired without an open application process.

Her suit alleged that, between 2001 and late 2005, only two Latinos were appointed nationwide as immigration judges. The immigration bench is overwhelmingly male and white, even though Spanish-speaking people from Latin America make up at least 70 percent of the caseload.

The US District Court for the District of Columbia ruled against the DOJ. It found that Ms. Gonzales "had identified a particular policy that has a discriminatory effect on a particular group."

The Court ruled that of the two other applicants for the position, one lacked Ms. Gonzales' experience and another failed to meet the minimum qualifications for the job.

In 2003, the Law Review study says, it was discovered that the "reforms" mandated by Attorney General Ashcroft -- firing five Clinton appointees and encouraging others to leave, requiring most decisions to be decided by summary affirmances or very short opinions, and replacing three-member panel decision-making with single-member affirmances for most asylum cases - "resulted in a sudden and drastic reduction in the rate at which the Board rendered decisions favorable to asylum applicants."

The study concludes with a wide-ranging series of recommendations. These include:

* Within each regional asylum office and within each immigration court, the adjudicators with particularly high and particularly low grant rates should confer with each other and try to ascertain the cause of this phenomenon...If the differences are based on ideologies or preconceptions of the adjudicators, these should be discussed with the regional or national director (in the case of an asylum office) or chief immigration judge (in the case of immigration court.)

* More training should be offered to promote greater consistency. Training for immigration judges should include units on judicial temperament. For example, immigration lawyers have sometimes complained that after an immigration judge is lied to several times by nationals of a particular country, the judge tends to suspect that all nationals of that country are liars. The training could include counseling on impartiality, avoiding stereotyping, and not taking personally the misconduct that the judges sometimes encounter from people who are desperate to remain in the United States.

* The government should implement more rigorous hiring standards. To be selected as an immigration judge, a candidate should have to demonstrate that he or she is sensitive to cultural differences and likely to treat all parties respectfully; capable of managing a large docket without becoming impatient; predisposed to be very careful in judging the credibility of people who claim to be victims of trauma or torture; and able to produce well-reasoned decisions that take into account all of the evidence and arguments presented by the parties.

* Congress and the Department of Justice should provide immigration courts with resources to enable the judges to work at the standards expected of bodies that adjudicate important cases. At present, the immigration courts are severely understaffed.

* Every immigration judge should be assigned at least one law clerk, and the quality of recording and interpretation should be improved. An increase in the number of judges is only a start on improving resources.

* The government should provide appointed counsel for any indigent asylum applicant who must defend himself in a removal proceeding in immigration court. People who are trying to prove that they are refugees within the meaning of federal law should not be required to compile supporting affidavits and make highly technical legal arguments without professional advocates, when the consequence of losing may be deportation to countries in which they face imprisonment, torture, and death.

* The Board of Immigration Appeals (BIA) should keep and publish statistics on the decisions of individual members, at least in asylum cases. If one member is granting asylum or remanding asylum cases at ten times the rate of another member, the Board itself, and the public, should at least be aware of this fact.

* The DOJ should amend the BIA's operating regulations to prohibit the Board from assigning asylum cases to a single member for decision. Given the apparently huge differences of opinion among adjudicators about who deserves asylum, more than one member should review each case, and the reviewers should discuss the reasons for any differences of opinion.

* Immigration Courts should have statutory independence from the DOJ, and Immigration Judges should be confirmed by the Senate as part of a new independent agency.

* Congress should amend the judicial review provision of the Immigration and Nationality Act to restore a more normal role for the federal courts in their review of asylum decisions. Currently, the federal courts defer excessively, especially in the southern circuits, to decisions of immigration courts and the Board of Immigration Appeals, even though those decisions appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or not the asylum applicant had representation or dependents in the United States.