Thursday, January 31, 2008


By William Fisher

Alarmed by the Bush Administration’s increasing use of the so-called “state secrets privilege” to keep politically embarrassing lawsuits against the government from ever coming before a judge, Congress is stepping in to help ensure that people with grievances can have their cases heard.

A new bill sponsored by Senators Edward M. Kennedy, a Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed. Both are members of the Senate Judiciary Committee.

The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation.

The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25% more cases each year than previous administrations, and has sought dismissal in over 90% more cases.

The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.

The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," according to Senator Kennedy's office.

In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”

The proposed new law “clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege," Kennedy says.

Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."

The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."

And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."

The absence of such rules has resulted in the dismissal of a number of high-profile lawsuits against the government. For example:

A German citizen, Khaled el-Masri complained that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition." His suit was dismissed because he would not be able to make his case except by using "[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations" -- and the CIA could not defend itself against the allegations "without using privileged evidence."

In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.

And perhaps the best-known of such cases involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation. She has since become the head of a group advocating for greater legal protections for whistleblowers who are involved in national security work.

Legal scholars and legal rights advocates have been outspoken on the Bush Administration’s use of the state secrets as a shield behind which it can conceal virtually any activity.

Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told us, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."

Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told us, “The expansion of executive power for its own sake has been a political priority of the Bush Administration since the beginning. Consistent with this agenda, the Administration has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest. This is true not just for state secret claims, but for the full scope of conceivable executive privilege claims.”

He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”

Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, says the Kennedy-Specter legislation “would go a long way towards restoring confidence that the privilege is being properly used, and would help deter abuse.” He told us, “The government's ‘say-so’ would not be enough.

He added, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”

And Gabor Rona, International Legal Director of advocacy group Human Rights First, told us, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”

Friday, January 25, 2008


By William Fisher

OK, we liberals are spooked by ‘Jesus Freaks’. We don’t want them passing a Constitutional amendment telling us who we can marry. We don’t want them teaching our kids Creationism. We don’t want them mandating that we just have to have that baby.

In short, we don’t want to have anything to do with these fringy lunatics of the religious right.

Well, no so fast. Hang on a minute.

Would you be surprised to discover that you have a lot more samenesses than differences with Christian evangelicals?

Well, so was I. Until I covered a telephone news conference last week sponsored by an evangelist group called Faith in Public Life.

The purpose of the conference call was to challenge President Bush to use his State of the Union speech to salvage his legacy by “changing course on the most pressing moral issues of our time.”

They must be talking about abortion, stem cell research, school prayer, gay marriage – those so-called ‘values issues’, I thought.

Not so.

Here’s some of what we reporters heard:

First, the participants – some of the best-known names in the evangelical world – called George W. Bush “an explicitly evangelical president” with a “sadly truncated” moral vision.

Then these Protestant and Roman Catholic leaders challenged the president to use his speech to announce major changes in his administration’s policies on war, torture, climate change, and U.S. and international poverty.

They credited Bush for some of his efforts, including his programs to address the HIV-AIDS pandemic in Africa, increasing foreign aid, and his domestic Faith-based Initiative. But it was highly critical of many other Bush Administration policies, particularly the war in Iraq, providing insufficient resources to help millions of Iraqi refugees, seeming indifference to growing poverty in the U.S., the use of torture, and failure to take a leadership position on global climate change.

The group was particularly critical of the president and his team regarding the use of torture as a tool in the war on terrorism. Rev. David Gushee, president of Evangelicals for Human Rights – did you know there was one? -- said, “In his well-intentioned efforts to protect national security, President Bush and his team over-reached by authorizing and employing torture that certainly qualify and cruel, inhuman and degrading treatment.”

Noting that “these decisions were made in secret” following the September 11, 2001 attacks on the U.S., Gushee said that once abuses such as the Abu Ghraib prison scandal were revealed, the courts, the media and public opinion forced Bush into “a kind of tactical retreat.” But, he added, Bush “still reserves the right to authorize the CIA to employ a range of secret ‘enhanced interrogation’ techniques, including waterboarding.”

He criticized the president for threatening to veto pending legislation that would make these practices illegal, and urged him to abandon his objections to using the Army Field Manual as the standard for all interrogations, including those carried out by the CIA.

“It is hard to overstate the devastating effect of this policy on the moral standing of the U.S.,” Gushee said. He added that “euphemizing torture as something else does not make it any less torture.”

He urged the president to tell the American people Monday evening, “On behalf of the U.S., I personally apologize for the use of torture by this nation.”

Fat chance!

The came Sister Anne Curtis of the Institute of the Sisters of Mercy, who recently returned from Iraq. She focused on the plight of the estimated four million Iraqis who have either fled to neighboring countries or who have been internally displaced by the war. She told us U.S. efforts to assist these refugees – many of whom have become targets for insurgents because they worked for American authorities – are under-funded and under-resourced.

Talking with refugee families, she said, “I felt a great sense of shame and deep sorrow as a citizen of the U.S.,” she told us reporters. “President Bush needs to understand the reality” of the refugee situation. He has “a responsibility, a moral obligation, to end the war in Iraq, aid the refugee applicants, and provide for the necessary funding of refugee assistance,” she said.

But aren’t these the same folks who have been so tight with Dubya, Cheney, and Karl Rove? Sure didn’t sound that way. One of the speakers, Dr. Ron Sider, opined that “The evangelical world has been hurt by its identification with President Bush’s immoral choices.” Sider is president of Evangelicals for Social Action – another outfit most of us have never heard of.

But how about former Gov. Mike Huckabee’s proposal to amend the U.S. Constitution to bring it more in line with scripture? Sider said, “I would not state it that way. This is not a Christian nation. We should not talk about making the Constitution in line with any religious text.”

In fact, the group had some harsh words for the religious right. “It’s just not enough to articulate opposition to abortion, gay marriage and judicial decisions we may not like,” said Rev. Gushee.

“I think we have yet to sort out the legacy of an explicitly evangelical president who sadly has had such a truncated vision of what moral leadership looks like. The limits of that vision have been painfully apparent over the last seven years,” he declared.

While the group appeared to favor President Bush’s Faith-based Initiative, they criticized him for failing to adequately fund the program. One member noted that Bush mentioned it in his first year and last year, but between these two points has been silent on the subject.

Poverty in the U.S. was also high on the group’s agenda. Father Larry Snyder, president of Catholic Charities USA, noted that in 2002 his organization provided 43 per cent of its services to the working poor; by 2006, the number had risen to 52 per cent.

“More than 36 million people living in poverty in the U.S. is simply unacceptable. It is a moral and social crisis, because as a country we have the knowledge and the resources to significantly reduce this number,” he said. He criticized congress as well as the president for failing to pass legislation to address the long-term health care needs of poor children.

Global Warming was another major concern for the group. Rev. Paul deVries, a board member of the National Evangelical Association (NEA) and an original signer of an “Evangelical Climate Initiative” statement, urged Bush to use his Monday night speech to lay out his commitment to “take care of God’s creation.” He should “praise the scientists, praise the congress, and lay out a program to set an example for the rest of the world.”

That puts Rev. deVries on a collision course with the likes of right-wingers like James Dobson, Chuck Colson, and Richard Land, head of the Southern Baptist Convention.

But he’s been there before. These were the folks who led the NEA’s successful fight against any kind of statement supporting action to address climate change. They said it was not a “consensus” position.

The group also expressed concern about the current economic downturn triggered by the sub-prime mortgage market meltdown. Rev. deVries called attention to “the extraordinary levels of deceit” by banks and mortgage companies, and charged that “no one seems to have the guts to say so and conduct a thorough investigation.”

He added, “The bank robbers have taken over the banks.”

On achieving a peace deal between Israel and the Palestinians, Rev. Sider said President Bush could have a “huge impact” on current negotiations. But he added, “This is not going to happen unless he invests himself and his credibility” in the effort.

The moral of this story is: All evangelicals aren’t loyal Bushies. They aren’t even all Republicans. And they’re certainly not homogenous. On many, many issues, they’re pretty much like most of those who are reading this column.

Those readers won’t agree with a lot of their beliefs and positions. But there’s a lot more common ground than most of us would have guessed.

Wednesday, January 23, 2008


By William Fisher

The Pentagon office that claims to monitor terrorist threats to U.S. military bases in North America – but is known to have spied on at least 186 peaceful anti-war protests in the U.S. – has just awarded a $30 million contract to a company whose senior management includes the former Defense Department (DOD) official who set up that office.

The former DOD official is Dr. Stephen Cambone, a trusted protégé of former Defense Secretary Donald Rumsfeld. Since his resignation as DOD’s Under Secretary of Defense for Intelligence following Rumsfeld’s departure in November 2006, Cambone has been vice president for strategy of a company known as QinetiQ (pronounced “kinetic”) North America, a major British-owned defense and intelligence contractor based in McLean, Virginia.

Two months after QinetiQ hired Cambone to expand its North American operations, that company’ s Mission Solutions Group signed a five-year, $30 million contract to provide a range of unspecified “security services” to the Pentagon’s Counter-Intelligence Field Activity office, known as CIFA. While at the Pentagon, Cambone was responsible for supervising CIFA and was deeply involved in the Pentagon’s most controversial intelligence programs at a time when DOD was making concerted efforts to marginalize the Central Intelligence Agency (CIA) by setting up its own parallel intelligence apparatus.

Formerly known as Analex, QinetiQ’s new contract expands work that Analex was providing to CIFA since 2003. CIFA manages a database of what it regards as "suspicious incidents" in the U.S. The database includes intelligence, law enforcement, counterintelligence, and security reports, as well as raw non-validated information from DOD's "Threat and Local Observation Notice" (TALON) reporting system of unfiltered information.

In 2006, The American Civil Liberties Union (ACLU) filed a Freedom of Information request to inspect TALON’s documentation. It received and reviewed hundreds of TALON documents, among which was a 2006 memo listing 186 reports involving “anti-military protests or demonstrations in the U.S., several peaceful protesters identified as potential threats to the military, and 2,821 TALON reports relating to “U.S. person information” and “anti-military protests or demonstrations in the U.S.” These reports were entered into a DOD anti-terrorist threat database.

Pentagon documents released by the ACLU show that the DOD monitored the activities of a wide range of peace groups, including Veterans for Peace, Iraq Veterans Against the War, Military Families Speak Out, Code Pink, the American Friends Service Committee, the War Resisters League, and United for Peace and Justice.

The organization said the Pentagon’s misuse of the TALON database is just one example of increased government surveillance of innocent Americans.

“It cannot be an accident or coincidence that nearly 200 anti-war protests ended up in a Pentagon threat database,” said Ann Beeson, the ACLU’s Associate Legal Director. “This unchecked surveillance is part of a broad pattern of the Bush administration using ‘national security’ as an excuse to run roughshod over the privacy and free speech rights of Americans.”

And Mary Shaw of Amnesty International USA, told IPS, “This is a prime example of how the U.S. government has created a broad definition of "domestic terrorism" that overreaches, and can have a chilling effect on our rights to free expression, free association, and privacy. Even in times of crisis, it is important to preserve our constitutional rights. As Benjamin Franklin said, ‘He who gives up essential liberty to obtain a little temporary safety deserves neither liberty nor safety’."

Telephone calls to QinetiQ’s offices seeking comment for this article were not returned.

TALON was created after the U.S. Congress in 2002 approved a proposal backed by Rumsfeld and Vice President Richard Cheney to create a new undersecretary slot at the Pentagon specifically for intelligence. Cambone was given the job. Under the law, Cambone exercised the Secretary of Defense’s “authority, direction and control” over all DOD intelligence, counterintelligence and security policy, plans and programs.

The mission of Rumsfeld and Cambone was to give the Pentagon greater authority in the area of human intelligence, traditionally the preserve of the CIA. Cambone’s deputy was Army Lieutenant General William G. “Jerry” Boykin, then a deputy undersecretary of defense for intelligence. Boykin was later reprimanded by the Army for “inappropriate” comments made in a series of speeches given in evangelical churches while in his military uniform, in which he described the war on terrorism as a Christian battle against evil.

Civil libertarians and human rights activists have drawn parallels between CIFA’s collection and retention of data on peace groups and other activists and the domestic collection of data through such programs as COINTELPRO (Counter Intelligence Program). COINTELPRO was a program of the U.S. Federal Bureau of Investigation (FBI) aimed at investigating and disrupting dissident political organizations within the U.S. Its targets were organizations that were at the time considered to have politically radical elements, ranging from groups such as The Weahtermen, who advocated the violent overthrow of the U.S. government to such non-violent civil rights activist organizations as Martin Luther King Jr.'s Southern Christian Leadership Conference.

Such acitivites were later strictly regulated by laws such as the Privacy Act of 1974, which strengthened and specified a U.S. citizen's right to privacy as guaranteed by the Fourth Amendment to the U.S. Constitution.

According to Pulitzer Prize winning journalist Seymour Hersh of The New Yorker magazine, Cambone was also involved in the Abu Ghraib prison torture scandal. Hersh claimed the interrogations at Abu Ghraib were part of a highly classified Special Access Program (SAP) code-named Copper Green, authorized by Defense Secretary Donald Rumsfeld and ultimately overseen by Cambone.

Originally a joint CIA-Pentagon program in Afghanistan that utilized highly trained Special Operations personnel, Copper Green eventually expanded to Iraq, Hersh reported, where Cambone decided to begin using non-Special Operations personnel -- including military intelligence officers and other military personnel --to begin questioning prisoners whose status was outside the program's original brief. He wrote that the CIA objected and withdrew from the program, while Cambone apparently tasked Maj. Gen. Geoffrey Miller, former Guantánamo Bay interrogations chief, with "Gitmo-izing" Iraq's prison system.

The bottom line: Rummie may be gone, but the Bush Administration and its army of private contractors continues to be chockablock with his private armies and neocon sycophants. And most of the departed are re-entering, and earning a ton more money in the process.

If you were hoping that Bob Gates was going to change all that, get over it.

Wednesday, January 16, 2008


By William Fisher

In an electoral campaign system tactically dominated by “niche politics,” major candidates for their party’s presidential nominations are running as fast as they can from one potentially influential constituency.

The constituency is the seven-million-strong American Muslim community. And the reason for the politicians’ flight is the fear of being seen as “soft on national security.”

Arguably, presidential wannabe John McCain, the “straight-talking” Republican Senator from Arizona, has become the poster child for the denigration of American Muslims. In response to a question about the possibility of a Muslim’s running for president, McCain said that his faith probably offers better spiritual guidance than that of a follower of Islam.

“Since this nation was founded primarily on Christian principles, that’s a decision the American people would have to make, but personally, I prefer someone who I know who has a solid grounding in my faith,” he said in a speech on the campaign trail.

McCain, and his rival, Mike Huckabee, an evangelist Baptist minister and three-term governor of Arkansas, have arguably been the most outspoken against Muslims. But the theme appears to be tacitly embraced by virtually all White House hopefuls of both parties.

In Michigan, site of this week’s Republican primary contest, one American Muslim businessman said, "They're all falling over each other to demonize Muslims and Islam. They're trying to appeal to the power of prejudice and hate. ... And it's brainless. Everybody knows we have a problem with terrorism. Let's focus on how to deal with it, instead of focusing on a faith or a people."

This view is shared by many in Michigan's sizable Muslim and Arab-American communities. Local Muslims feel under siege as candidates scramble to bolster their national security credentials with words Muslims say slander their religion.

In a recent TV ad for former New York mayor Rudy Giuliani, images of angry Muslim men and women appear on screen with a voice-over warning of "a people perverted."

Most American Muslims say they have no problems with talk of fighting terrorists. But they find Republican candidates consistently equating Islam with terrorism and crossing the line into bigotry.

Among candidates, the single exception appears to be Democrat Dennis Kucinich, an Ohio congressman and former mayor of Cleveland. He has reached out to American Muslims by including mosques in his campaign itinerary. But his chances of winning his party’s nomination are judged to be less than nil.

According to Ibrahim Hooper, strategic communications director of The Council on American-Islamic Relations (CAIR), an advocacy group for Muslims in North America, “It should be clear to any candidate that American Muslims are a key group of voters who defy simplistic labeling and maintain an independent streak that should be taken into account by all those running for public office.”

But this is not happening, says Corey Saylor, CAIR’s national legislative director.
“There is virtually no sign of outreach by candidates for the presidential nomination,” says Saylor. He told us he doubts such outreach will occur until the American Muslim community becomes a lot stronger politically.

To encourage that development, the Washington DC-based not-for-profit organization has recently launched a voter education program with its own website (

CAIR’S Saylor told us, “American Muslims are basically conservative. They voted for George W. Bush in 2000, but switched to John Kerry in 2004, because they felt their civil rights and liberties were under attack” by politicians who equated Islam with terror.

The exact number of American Muslim voters is not known. But Saylor says a conservative estimate can be found in the 400,000-strong database CAIR developed for a 2006 attitude survey of this constituency.

CAIR says that today American Muslims are viewed as potential swing-voters in key battleground states such as Florida, Michigan, Illinois, Ohio, Pennsylvania and Wisconsin.

The 2006 survey profile reported that American Muslims are young, highly educated, professional, middle class, family oriented, and religiously diverse. The survey found that there was no clear majority in party membership: 42% said they considered themselves Democrats; 17% said they were Republicans; 28% said they did not belong to any party.

The survey also showed that Muslim voters believe anti-Americanism in the Muslim world is a serious problem, one that can only benefit from the unique perspective and input of American Muslims.

In the current election cycle, CAIR says, Muslims still are evaluating the candidates. Saylor disclosed that a new soon-to-be-released CAIR survey indicates that almost half of Muslim voters remain undecided about their choice for president.

But Samer Shehata, professor of Arab Politics at Georgetown University, thinks that American Muslims, like many other U.S. voters, will eventually make their choices. He believes that “Muslim voters will turn out in large numbers on election day – possibly more than at any other time in the nation’s history, and with enthusiasm.”

He says he expects that a large percentage of American-Muslims are supporters of Obama for several reasons: First, the majority of American-Muslims are African-American; second, Obama is viewed as more fair and balanced when it comes to the Palestinian-Israeli conflict than Hilary Clinton, for example; third, Obama was against the Iraq war from the very beginning, unlike Hilary Clinton despite her spin.”

Omid Safi, professor of Islamic studies at the University of North Carolina, and one of the founders of the Progressive Muslim movement in the U.S. and Canada, says candidates’ reticence to talk to Muslim voters is matched by a profound distrust of politicians by members of this community.

He told us, “All the candidates talk about Muslims, but very few talk with Muslims.” If they did, he added, they would discover that “all the same issues of education, environment, economy, healthcare, etc., that affect all Americans also affect American Muslims.”

He says, “None of the Republicans get serious attention from American Muslims. And as for the Democrats, it is remarkable how little interest Hillary Clinton generates, mainly because many Muslims do not trust her ethics. She has done everything in her power to antagonize Muslims by embracing ardently pro-Israel positions. There is great interest in Obama among many American Muslims.”

Prof. Safi decries what he sees as a “Jesus litmus test” for political candidates this year. “Even Hillary and Obama think they have to prove themselves faithful Christians,” he says.

“The issue is not whether they are Christians or what kind of Christians. The issue is what kind of country we are, what kind of country we want to be. Candidates should not be running to be the Christian president of America. They should want to be the President of the United States of America," he says.

He adds, “There is a profound disgust with the erosion of civil liberties, policies of rampant militarism, systematic corruption, and arrogance that the Bush administration has displayed.” The result, he says, is that “in 2000 the majority of American Muslims voted for Bush, and eight years later his support would probably be in the single digits among the same community.”

Samar Jarrrah, the Palestinian-born American author of "Arab Voices Speak to American Hearts," strikes a more optimistic note. She believes that candidates will eventually acknowledge the American Muslim community and that the political influence of that community will grow over time.

She told us, “It is an uphill battle, but it will never be as tough as it was for the Jews, black Americans, and women. Our interests as American Muslims are
intertwined with millions of Americans who care for the constitution, justice as well as fairness in foreign policy.” She believes the time will come when candidates will stop feeling that “endorsing a Muslim group is a kiss of death.”

Maybe so. But it’s clear that such a time is still well over the horizon. And will likely just stay there until politicians and their campaign advisors no longer think they can score political points by pandering to our civic ignorance.

Sunday, January 13, 2008


By William Fisher

As the world last week marked the sixth anniversary of the arrival of the first orange-jumpsuit-clad prisoners at the U.S. Naval Base at Guantanamo Bay, Cuba, human rights organizations are attempting to focus public and congressional scrutiny on what some are calling “the other GITMO.”

The “Other GITMO” is a prison located on the U.S. military base at base in the ancient city of Bagram near Charikar in Parvan, Afghanistan. The detention center was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses some 630 prisoners –close to three times as many as are still held at Guantanamo.

In 2005, following well-documented accounts of detainee deaths, torture, and “disappeared” prisoners, the U.S. undertook efforts to turn the facility over to the Afghan Government. But, thanks to a series of legal, bureaucratic and administrative missteps, the prison is still under American military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.

The ICRC report is said to cite massive overcrowding, "harsh" conditions, lack of clarity about the legal basis for detention, prisoners held "incommunicado," in "a previously undisclosed warren of isolation cells," and "sometimes subjected to cruel treatment in violation of the Geneva Conventions." Some prisoners have been held without charges or lawyers for more than five years. The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors and at times subjugated to cruel treatment in violation of the Geneva Conventions.

According to Hina Shamsi of the American Civil Liberties Union (ACLU), “Bagram appears to be just as bad, if not worse, than Guantanamo. When a prisoner is in American custody and under American control, our values are at stake and our commitment to the rule of law is tested.” She told IPS, “The abuses cited by the Red Cross give us cause for concern that we may be failing the test. The Bush administration is not content to limit its regime of illegal detention to Guantanamo, and has tried to foist it on Afghanistan.”

She added, “Both Congress and the Executive Branch need to investigate what's happening at Bagram if we are to avoid a tragic repetition of history.”

The problems at Bagram burst into the headlines in 2005, after the New York Times obtained a 2,000-page U.S. Army report concerning the deaths of two unarmed civilian Afghani prisoners guarded by U.S. armed forces in 2002.

American military officials in Afghanistan initially said the deaths were from natural causes. Lt. Gen. Daniel K. McNeill, the American commander of allied forces in Afghanistan at the time, denied then that prisoners had been chained to the ceiling or that conditions at Bagram endangered the lives of prisoners.

But after an investigation by The New York Times, the Army acknowledged that the deaths were homicides. The prisoners were chained to the ceiling and beaten, causing their deaths. Military coroners ruled that both the prisoners' deaths were homicide. Autopsies revealed severe trauma to both prisoners' legs, describing the trauma as comparable to being run over by a bus. Last fall, Army investigators implicated 28 soldiers and reservists and recommended that they face criminal charges, including negligent homicide.

The U.S. military has spent more than $30 million to build an Afghan prison outside Kabul that meets international humane treatment standards and has trained Afghan guards.

But the number of detainees keeps growing, due to the intensifying combat in Afghanistan. One result is that there is room for only about half the prisoners the U.S. originally planned to put in the new detention center.

Efforts to transfer Bagram’s 630-plus prisoners to Afghan control have run into myriad other problems. First, there were turf battles between the different ministries of the Afghan government. Then Afghan officials rejected pressure from Washington to adopt a detention system modeled on the Bush administration's "enemy combatant" legal framework, with military commissions such as those at Guantánamo.

The ACLU’s Shamsi says that, “While conditions at Bagram have improved, at least since the universal revulsion at the revelations of Abu Ghraib and Congress' passage of the Detainee Treatment Act of 2005, the tragic mistakes of the past may be in danger of repetition.”

She also raises the possibility that there may be prisoners in Afghanistan who are not "Department of Defense detainees," as one Pentagon official has referred to them, but are instead held by the CIA or another civilian agency.

“We know that the CIA was holding "ghost prisoners" -- prisoners held in secret, hidden from the Red Cross -- at a secret facility called the "Salt Pit" in Afghanistan. She notes that the administration has never renounced the CIA's illegal secret detention and interrogation program that President Bush revealed in September 2006. She adds concern that Special Operations forces may not be following Department of Defense directives on the registration of prisoners.

According to Shamsi, “It is clear that another lesson from the torture scandal seems to have been ignored: different rules for different agencies and different prisoners are an invitation to abuse.”

The situation at Bagram has been largely overshadowed by the continuing controversy surrounding Guantanamo. Just last week, a U.S. appeals court ruled that four former Guantanamo prisoners, all British citizens, have no right to sue top Pentagon officials and military officers for torture, abuse and violations of their religious rights. The four who brought the lawsuit were released from Guantanamo in 2004 after being held for more than two years. The suit sought $10 million in damages and named then-Defense Secretary Donald Rumsfeld and 10 military commanders.

The men claimed they were subjected to various forms of torture, harassed as they practiced their religion and forced to shave their religious beards. In one instance, a guard threw a Koran in a toilet bucket, according to the lawsuit.

The appeals court cited a lack of jurisdiction over the lawsuit, ruled the defendants enjoyed qualified immunity for acts taken within the scope of their government jobs and held the religious right law did not apply to the detainees.

Eric Lewis, the attorney who argued the case for the detainees, vowed to appeal to the U.S. Supreme Court.

"It is an awful day for the rule of law and common decency when a court finds that torture is all in a days' work for the secretary of defense and senior generals," Lewis said.
Another attorney for the plaintiffs, Michael Ratner of the Center for Constitutional Rights, expressed disappointment that the appeals court failed to hold "Rumsfeld and the chain of command accountable for torture at Guantanamo."

Guantanamo and Bagram have been virtually ignored by candidates for the 2008 presidential nomination. One exception is former Arkansas governor Mike Huckabee, who acknowledged that Guantanamo has become a damaging symbol for the United States and is "not in our best interests."

President Bush has said he would like to close Guantanamo, but has taken no action to do so. In June 2007, Bush's former Secretary of State Colin Powell said, "If it was up to me, I would close Guantanamo -- not tomorrow, this afternoon," explaining that "we have shaken the belief that the world had in America's justice system by keeping a place like Guantanamo open." And Defense Secretary Robert Gates has reportedly pushed to close the facility because he felt the detention facility had "become so tainted abroad that legal proceedings at Guantanamo would be viewed as illegitimate."

Saturday, January 12, 2008


By William Fisher

As if the pollsters and the media who analyze and report on their findings didn’t make enough mistakes in the Iowa caucuses and the New Hampshire primary, here’s another:

The folks who conducted the exit polls following the Iowa caucuses and the New Hampshire primary asked departing Republican voters if they were evangelicals." But they didn’t ask the same question of exiting Democrats – apparently assuming there weren't any evangelicals voting for Democrats.

That’s because the conventional wisdom is that Evangelical = Republican.

It’s that wisdom that appears to have been accepted by the outfits that conducted the exit polls.

But it just ain’t so, says Katie Barge of Faith in Public Life. She says it’s “an assumption that is demonstrably not true.”

She notes that polling organizations and media experts on religion explain to us that “evangelicals care mostly or only about abortion and gay marriage, and not about other issues.” And that, she says, “is even more mistaken.”

She explains: “The issues that most concern evangelicals today, especially a younger generation, include poverty, the environment and climate change, human rights, and the morality of a foreign policy where war is the first resort.”

She adds, “This year those issues are drawing a growing number of evangelicals to consider the Democratic candidates.” This broadening agenda, she says, has made the evangelical community “increasingly diverse politically.”

Barge is not alone. Michelle Boorstein and Jon Cohen, writing in the Washington Post’s “The Trail,” remind us that since nearly eight in ten white evangelicals voted for President Bush in 2004, Democrats have been plowing thought, money and time into changing the story line. They have faith advisers, faith forums and faith strategies that show there is such a thing as a progressive evangelical.”

Not unreasonably, a group of leading progressive evangelicals was upset enough by the acceptance of old stereotypes and caricatures that they fired off a letter to the polling and political directors of media outlets represented in the National Election Pool.

The signatories included such luminaries as Dr. Joel Hunter, Senior Pastor of the Northland Church in Orlando and head of The Christian Coalition, an organization once synonymous with the Religious Right; David Neff, Editor of Christianity Today; Rev. Jim Wallis, best-selling author and founder of the Sojourners; Paul Corts, President of the Council for Christian Colleges and Universities, and other equally high-profile clergymen and theologians.

Here, in part, is what they wrote:

“Religion is playing an unprecedented role in the 2008 presidential campaign; the need for accurate and thorough information about religious voters is difficult to overstate. Thus far, the National Election Pool’s exit poll surveys have pigeonholed evangelicals, reinforcing the false stereotype that we are beholden to one political party.

“Your entrance and exit polls at the Iowa caucuses asked Republican caucus-goers if they were 'born-again or evangelical Christian(s)', but did not ask the same question of Democrats. This omission left a substantive hole in subsequent news coverage of the caucuses. Based on your polling, the public helpfully learned that born-again or evangelical Christians played a central role in Mike Huckabee’s victory, but received no information about the impact of evangelical voters in the Democratic race.

“As reported by numerous news organizations, candidates of both parties spoke explicitly of their religious faith while campaigning in Iowa and have robust faith outreach operations. By omitting the question of evangelical/born-again identification from the Democratic polls, you prevented the public from seeing the full picture of how the bipartisan courtship of evangelical voters affected the outcome of the first contest of the 2008 campaign and perpetuated the misperception that all evangelical Christians are Republicans.
“No party can own any faith.”

The letter closes by noting, “With voters entering polling sites in Michigan, Nevada and South Carolina in the coming days and weeks and Super Tuesday following shortly thereafter, it is imperative for you to remedy the imbalance in your exit polling immediately. Evangelicalism is not a monolithic movement that fits neatly into one party.”

The reaction from the recipients thus far?

Chuck Todd from NBC -- the only one to respond so far -- wrote back, "I will share this with the team... thank you for your concern."

No word at all yet from any of the other networks. Michael Mokrzycki, AP's director of polling, declined to give details about how the group came up with its questions, but said "if you've seen the questionnaires it is clear we're working with limited real estate and thus must make judgments about priorities."

Given the Jerry Falwell-Pat Robertson-James Dobson history of religion in politics, the idea of an Evangelical Democrat may well seem counter-intuitive.

But we have a right to expect that the people whose work informs us about our political landscape -- and the journalists who use that work as the rationale for many of their own conclusions – keep their knowledge base current.

The times, they are a-changin'.

Or are they?

There is a larger point to this debate. Here’s how it’s seen by Rev. George Hunsinger, a professor at the Princeton Theological Seminary:

“I think the essential point would be that there are no religious qualifications for holding public office. JFK made that point years ago while Romney recently fudged it.

“Whether there should be questions about religious affiliation in exit polling is less clear. In exit polling as it is currently conducted, perhaps best not.

“But the larger problem of exit polling and superficiality, like the problem of TV candidates' debates and superficiality, is the real nub. If we take the Lincoln-Douglas debates as a standard, we can begin to gauge how far our public discourse has fallen.

“The superficiality of our public discourse -- and especially the slide toward tabloid news coverage -- can hardly be seen as an accident. Our rulers clearly want a general public that has no interest in genuine thought. That way we, the people are more easily manipulated and controlled. Call it creeping Orwellianism.”


Tuesday, January 08, 2008


By William Fisher

I have watched my last presidential debate.

I am sick to death of well-coiffed cable TV news anchors asking vapid questions designed to generate heat, not light. I am sick to death of presidential wannabees filibustering questions they choose to avoid by delivering slogans, not answers.

And I am sick to death of the faux choice presented to voters: Change versus Experience. Could someone out there please tell me exactly what that’s supposed to mean?

True, there were some questions – and a bunch of soundbite answers -- about a few of the great issues that will face the next president: Like energy policy, health care, free trade, and the Iraq “surge.”

But these meticulously choreographed-for-TV tableaus should be remembered for what wasn’t covered at all.

Here, in no particular rank order, are a baker’s dozen questions the moderators managed to ignore:

1. What steps will you take to restore constitutional checks and balances between the three co-equal branches of our government?

2. Do you think these three branches are actually co-equal? Or do you believe in the “unitary executive” theory that gives the president far more sweeping powers? For example, do you believe the president should be allowed to use “signing statements” to nullify parts of laws passed by congress? Do you think the Office of the Vice President is part of the Executive Branch of government?

3. Do you agree with President Bush that Guantanamo Bay should be closed? What would you do with the people imprisoned there? Do you think Combat Status Review Tribunals and Military Commissions offer detainees the chance of a fair hearing? What about habeas corpus?

4. The Bush Administration has run one of the most secretive governments in American history. What steps will you take to restore more transparency to the Executive Branch?

5. How would you remove partisan politics from the Department of Justice? And make other federal agencies more efficient?

6. Do you think waterboarding is torture? And are there circumstances under which it should be allowed?

7. The United States has diplomatic relations with – and provides huge amounts of aid to – some of the world’s most repressive governments. Do you think it’s time to rethink our Cuba policy?

8. Do you think some presidential action is needed to reach out more effectively to the American Muslim community, to keep its members from becoming radicalized into home-grown terrorists?

9. Do you think the US should press India, Israel and Pakistan to sign the Nuclear Non-Proliferation Treaty? What further steps would you take to ensure the security of nuclear stockpiles?

10. What would you do to accelerate an agreement between the Israelis and the Palestinians for the establishment of two separate states? Would you press Israel to reexamine its policies regarding West Bank settlements?

11. China and India represent a third of the world’s population – and an ever-increasing amount of the world’s greenhouse gas emissions? What incentives can you offer these countries to cap these emissions according to a mandatory timetable, absent a pledge from the US to do likewise?

12. Do you think US national security is enhanced or injured by our current no-talk policies toward Iran and Syria?

13. What steps would you take to restore respect for the US in the world community?

There are no easy answers to any of these questions. Which is precisely why they should have been asked. The candidates’ answers would speak volumes about how each of them would approach the Presidency.

Forget Experience versus Change. That’s a construct unworthy of serious journalists. It is bumper-sticker lingo from campaign managers. Of course Experience is invaluable; the more you have, the better the chances your new administration will craft the most promising options. If that happens, Change might just take care of itself.

Thursday, January 03, 2008

The poem below was written by my longtime friend, Gwen Gould. In addition to writing moving poetry, Gwen is a professional musician -- a gifted conductor who has enriched our little upstate New York area for many years with her community sings, recitals, and concerts with the Columbia Festival Orchestra.
Ice Storm
a seasonal sestina

On a day when all is gray
at the cusp of winter,
tears of the sunless sky
freeze the pace of life.
A gentle but treacherous rain
clothes my world in icy crystals.

In the scant light of early morn, freezing crystals
form on the filagre of branches, gray
and darkened from the rain.
This harbinger of winter
suggests the coming season of my life;
I can conjure it clearly in the foreboding sky.

A hawk swoops by, alone in the sky.
No hint of light illuminates the crystals
in the stiff branches devoid of life.
The sky is still a gloomy gray.
Unrelenting is the approach of winter
I long for a warm spring rain.

But this treacherous winter rain
thickens the darkness of the sky,
chilled in the stillness of winter.
My eyes are the dim crystals
and my memory the sky's dull gray,
slipping down the icy spine of life.

A slender beam of light parts the dull sky, life
is nourished by warming showers of new rain,
that do not wash away the gray
in my hair, but clear the sky
of its thickness and melt the crystals,
thawing my life for another winter.

Now shine the muted colors of early winter.
Slanting rays of light affim new life.
Gleams of wisdom are the crystals
that wash over me like the rain.
Light now beams from a luminous sky.
Russet and beige glow against the gray.

The surface of my life, made shiny by the rain
and toughened by the winter's frozen crystals,
glistens gray and hopeful in the bright winter sky.

Wednesday, January 02, 2008


By William Fisher

The government’s spotty record in obtaining convictions of people charged with providing “material support” to terrorist organizations is adding new impetus to the efforts of prominent constitutional lawyers to seek substantial changes in the law.

The latest failure in a terrorism-financing prosecution came late in 2007, when a Texas jury failed to render any guilty verdicts in the trial of the Holy Land Foundation (HLF) – once the largest and most prominent charity dedicated to supporting Palestinian and other Muslim causes. Several HLF officials were charged with giving money to Hamas, the militant Palestinian organization designated a terrorist group by the U.S. in 1995. The trial ended with a mix of acquittals and deadlocks.

The Federal Bureau of Investigation started looking into HLF in 1993. In December 2001, the U.S. Treasury Department (DOT) seized and confiscated the charity’s assets and records, effectively putting the organization out of business. Given that outcome, some legal scholars have questioned why the government pursued a criminal prosecution at all. The trial did not begin until mid-2007.

William Neal, a juror in the HLF case, told the media that the government’s evidence “was pieced together over the course of a decade — a phone call this year, a message another year.” Instead of trying to prove that the defendants knew they were supporting terrorists, Mr. Neal said, prosecutors “danced around the wire transfers by showing us videos of little kids in bomb belts and people singing about Hamas, things that didn’t directly relate to the case.”

Civil liberties groups say the HLF case was just the latest in a line of misguided
prosecutions. One such group, OMB Watch, charges that the USA Patriot Act gives the government “largely unchecked power to designate any group as a terrorist organization.” It says that “once a charitable organization is so designated, all of its materials and property may be seized and its assets frozen. The charity is unable to see the government’s evidence and thus understand the basis for the charges. Since its assets are frozen, it lacks resources to mount a defense. And it has only limited right of appeal to the courts. So the government can target a charity, seize its assets, shut it down, obtain indictments against its leaders, but then delay a trial almost indefinitely.”

One result, say critics of the government’s policy, is that Muslim charities have experienced a precipitous decline in contributions. Contributions that do arrive often come in cash from anonymous givers. And donors who happen to be Muslim are increasingly turning to the large household names like Oxfam and Save the Children, which may conduct programs in predominantly Muslim areas abroad.

One of America’s foremost constitutional scholars, Prof. David Cole of the Georgetown University Law Center, argues that the “material support principle is ‘guilt by association’ in 21st-century garb, and presents all of the same problems that criminalizing membership and association did during the Cold War.” He told us that the problem requires fundamental changes in the terrorism-financing law.

Included in Cole’s recommendations for major changes:

1. The Treasury Department should be required to permit closed charities to direct their collected funds to charities mutually approved by the frozen charity and the government.

2. Congress should enact a statutory definition of a "specially designated terrorist." “Right now the Treasury Department makes such designations entirely on the basis of an Executive Order, and accordingly Congress has given the President essentially a blank check,” Cole told us.

3. Treasury should allow designated entities to use their own funds to pay for their own defense. “Treasury not only shuts down charities in a secretive one-sided process, but then bars the charities from using any of their own money to defend themselves against the designation,” according to Cole.

4. The criminal material support statutes should be amended to require proof that an individual supported a proscribed group with the intent to further its illegal activities. “Today,” according to the government, “even aid intended to discourage terrorist activities is a crime under the material support laws,” Cole says.

He adds, “There is no requirement that the aid have any connection to terrorism,” and cites a case he is handling with the Humanitarian Law Project (HLP) at the Center for Constitutional Rights (CCR).

He told us, “My clients had been providing human rights advocacy training to the PKK in Turkey, as a way of encouraging them to use peaceful lawful means to resolve their disputes with the Turkish government over its treatment of the Kurdish minority. By encouraging lawful outlets for dispute resolution, such aid would presumably discourage terrorism. Yet under the material support statute it is a crime even if HLP could prove that both the purpose and the effect of their support was to decrease the PKK's resort to violence.”

OMB Watch says the “material support” effort has resulted in the government shutting down charities that were not on any government watch list before their assets were frozen.

The organization says the result is that Muslims have no way of knowing which groups the government suspects of ties to terrorism. “Organizations and individuals suspected of supporting terrorism are guilty until proven innocent,” it says.

OMB Watch told us, “A group could comply 100% and still be shut down ‘pending an investigation’."

Material-support cases are just a small fraction of the Justice Department’s terrorism prosecutions, but some observers believe they represent a shift in government strategy from punishment to prevention. Earlier prosecutions were for acts of violence that actually took place. Examples include the first World Trade Center attack, the 1998 bombings of American embassies in Africa, and conspiracies that were relatively close to fruition.

Nonetheless, government terror-financing prosecutions have been reasonably successful. From the Sept. 11 attacks to last July, the government started 108 material-support prosecutions and completed 62. Juries convicted nine defendants, 30 defendants pleaded guilty, and 11 pleaded guilty to other charges. There were eight acquittals and four dismissals.

In terrorism prosecutions involving a violent act actually committed or near fruition, the government’s record is spottier. According to the Center on Law and Security at the New York University School of Law, the government has a 29 percent conviction rate in terrorism prosecutions overall, compared with 92 percent for felonies generally.

The latest government setback involves the so-called Liberty City Seven – seven men named for the blighted Miami district where they allegedly operated. Charged with plotting to join forces with al-Qaeda to blow up Chicago's Sears Tower, one was acquitted last month and a mistrial was declared for the six others after the federal jury deadlocked.

Prosecutors acknowledged that no attack was imminent, and then-Attorney General Alberto Gonzales said after the arrests in mid-2006 that the alleged terror cell was ''more aspirational than operational.''

In some cases, defendants are arguably convicted of terror-related offenses in the court of public opinion rather than in the courts. One example often cited by lawyers is the case of Dr. Rafil Dhafir, an Iraqi-born American citizen, who organized and raised money for a charity providing humanitarian relief to children in Iraq. He was never charged in court with a terrorist-related offense; the word “terrorism” was not allowed to be used in his trial, although prominent politicians such as then-New York Governor George Pataki hailed his arrest as a victory in the war on terror.

The upstate New York oncologist was sentenced to 22 years in jail in 2005 for 59 felony charges, including violating U.S. sanctions against Iraq.