Saturday, July 26, 2008

Obama Should Re-Think His Faith-Based Agenda

By William Fisher

In his speech in Berlin, Barack Obama spoke of many walls that need tearing down. By the count of New York Times columnist David Brooks, Obama used the word “walls” 16 times, and in 11 of them, he was talking about walls coming down.

Now, I haven’t talked with anyone, of any political persuasion, who’s not in favor of those walls coming down, as unlikely as that may turn out to be.

But there’s one wall that Barack wants to pull down that I think needs to be affirmatively left in place, or, to be more precise, reconstructed. That’s the wall between church and state.

That wall was demolished by George W. Bush’s White House Office of Faith-Based and Community Initiatives. The Constitution notwithstanding, the Bush Administration installed faith-based programs in the White House and in a dozen government departments and agencies. The President was forced to use Executive Orders to get this program started, because Congress refused to allow prospective recipients of taxpayer funds to practice religious discrimination in hiring.

We all know how the Bush Administration cynically used its faith-based initiative to solidify its relationships with the Christian Right, a critical part of its base. Now, in an embarrassingly obvious pander to these so-called “values voters,” Senator Obama has proposed his own version of a faith-based initiative. It’s true that Obama’s version contains major differences from Bush’s program. As Jim Wallis points out, Obama's proposals contain necessary protections for religious liberty, pluralism, and constitutional safeguards.

But we are still stuck with the central (and unanswered) question: Why is the federal government involved at all? Doesn’t the First Amendment to our Constitution make it clear enough that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

I hate to sound like one of those “government should just get out of the way” conservatives, but I have to say that this seems to me to be one of those instances where federal intervention should be just plain unnecessary.

I want to be crystal clear. I am very much aware of the fantastic work done by many faith-based groups, both at home and abroad. These groups work at the grassroots. They work to help real people with real problems. They work on issues ranging from housing to poverty to homelessness to literacy to social justice to prison mentoring. Abroad, in my development work, I have over many years seen firsthand the totally professional work done in many disciplines by organizations like Catholic Charities – without even the tiniest hint of proselytizing.

Yes, there have been some pretty outrageous breaches by a few religious organizations – like the outfit that distributed King James Bibles to Muslims who had just lost everything to the Tsunami. Or the charity that used our tax dollars to run an “abstinence only” family planning program.

But that’s not the point. By and large, the work of these groups has been exemplary, necessary, and often far less expensive and far more efficient than government efforts. The disastrous governmental response to Katrina would have been immeasurably worse without the tireless no-strings-attached help provided by unpaid volunteers from churches and church-related groups, large and small, from all over the world.

The point is that the major players in the faith-based community are awash in money and they ought to be encouraged to share it with their smaller and often struggling brothers and sisters.

I’m talking about the multi-billion-dollar faith-based rock-star empires amassed by people like John Hagee, Pat Robertson, Rick Warren, Joel Osteen, James Dobson, and many, many others.

Not that I would want this megaclergy to take on the role of grant-makers. Heaven forfend! That would surely lead to the total politicization of good works.

I am suggesting that, in the best spirit of peace on earth and goodwill toward men (and women), those with much should share it with those who have little save the desire to help their fellow human beings.

I am suggesting that the megaclergy commit to contributing in perpetuity part of their annual revenues to finance the kinds of projects now paid for by tax dollars. And I am suggesting that they should do that under the watchful aegis of some professional, ecumenical, credible, non-partisan, non-governmental organization, perhaps the Interfaith Council, or one of the great foundations such as MacArthur, Rockefeller, Pew, or Ford.

Let that outfit make its own rules without interference from donors. Or from the government. Let it develop its own priorities, its own criteria for awarding grants, its own monitoring and evaluation systems to measure effectiveness, its own plans to ensure lawful behavior, ethical conduct and real accountability.

It could start with only a few immutable principles: No proselytizing. No partisan politics. No ideological or scriptural agendas. Just help for those who need and deserve it.

As to the issue of employment discrimination, there shouldn’t be any. In the unlikely event that some staunch right-to-lifer wants to work for Planned Parenthood, let him/her! And what could be more instructive than a practicing Muslim working for the Southern Baptist Convention! And my advice to orthodox Jews who are only comfortable working with other orthodox Jews, or Muslims with Muslims, or Catholics with Catholics: get over it!

At a practical level, I doubt that such a non-discriminatory employment policy would deter many faith-based groups from applying for grants. The reality might just be that people at polar opposites could actually learn something if they stopped talking past one another and worked together to accomplish important things.

It would be naïve to underestimate how hard it will be to get the Pat Robertsons of the world to sign on to this new kind of no-strings-attached philanthropy.

But that’s exactly the guidance the Bible gives. Consider Deuteronomy 15:11: "There will always be poor people in the land. Therefore I command you to be openhanded toward your brothers and toward the poor and needy in your land."

And if that unambiguous Biblical injunction happens to fall on deaf ears, perhaps there is a role for government after all. The bully pulpit of the White House gives the president a powerful weapon – which even the likes of Pat Robertson will find it difficult to ignore.

Whichever works, it will then be time for the government to, as they say, get out of the way.

Friday, July 25, 2008

Did You Give at the Office?

By William Fisher

In the name of “Global War on Terror,” the U.S. Government is waging war on non-governmental organizations by applying “shortsighted, undemocratic policies” that are “constraining the critical activities of the charitable and philanthropic sectors, stifling free speech, and ultimately impeding the fight against terrorism.”

This is the conclusion of a new white paper prepared by two prominent organizations, OMB Watch and Grantmakers Without Borders. OMB stands for the government’s Office of Management and Budget, the White House office responsible for devising and submitting the president's annual budget proposal to Congress.

The report charges that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accuses the courts of being “overly deferential” to the U.S. Treasury Department, which is responsible for conducting programs designed to stem the flow of money to terrorist organizations. It contends that federal agencies “ignore nonprofits’ calls for change,” and says, “Congress has not utilized its oversight powers to review counterterrorism programs.”

The result, the report says, is that U.S. nonprofit organizations have been forced to “operate within a legal regime that harms charitable programs, undermines the independence of the nonprofit sector, and weakens civil society.”

The report says that the U.S. nonprofit community today “operates in fear of what may spark (the government) to use its power to shut them down.”

Kay Guinane, Director of Nonprofit Speech Rights at OMB Watch, noted that the current approach to counterterrorism as it relates to nonprofits and foundations is ultimately counterproductive. She told IPS, "In order to preserve the rights of all nonprofit organizations, and indeed, the rights of all people, all levels of government must conduct their counterterrorism activities in a way that consistently protects liberty and civil society. Otherwise, Americans and others lose safeguards that were designed to protect us all from creeping tyranny."

The report -- Collateral Damage: How the War on Terror Hurts Charities, Foundations, and the People They Serve -- asserts that “current counterterrorism policies are based on a flawed legal regime and broad, vague definitions; the policies rely on flawed assumptions about terrorism and nonprofits; and the policies are abused by the government to engage in unconstitutional, political use of surveillance powers.”

The Treasury Department’s Office of Foreign Assets Control (OFAC) is the target of much of the report’s criticism of the government’s approach. After the September 11th terrorist attacks on the U.S., Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were using their charitable status as cover for funneling funds to terrorist groups.

These powers include the authority to designate any charity as a material supporter of terrorism. This action demands virtually no due process from the government, denies the target to see the evidence against it, and can result in freezing of a charity’s assets, effectively shutting it down. Since 9/11, the government has shut down dozens of charitable groups, but only three have ever been charged and brought to trial for supporting terrorist causes. None has been convicted.

The report explains that current counterterrorism financing policy allows the funds of designated charitable organizations to sit in frozen accounts indefinitely. Treasury’s 2006 Terrorist Assets Report estimates that $16,413,733 in assets from “foreign terrorist organizations”, which include charities and foundations, have been frozen since 9/11. The laws that authorize the designation and freezing of assets do not provide any timeline or process for long-term disposition, so they remain frozen for as long as the root national emergency authorizing the sanctions lasts. To date, no blocked funds have been released for charitable purposes, despite several requests, the report claims.

It also asserts that the government has used its surveillance powers against charitable groups for political purposes. It charges, “In addition to providing aid and services to people in need, charitable and religious organizations help to facilitate a free exchange of information and ideas, fostering debate about public policy issues. The government has treated some of these activities as a terrorist threat. Since 9/11, there have been disturbing revelations about the use of counterterrorism resources to track and sometimes interfere with groups that publicly and vocally dissent from administration policies.”

In 2005, the American Civil Liberties Union (ACLU) launched its Spy Files Project and uncovered an intricate system of domestic spying on U.S. non-profits largely condoned by expanded counterterrorism powers within the USA PATRIOT Act.

The report finds that “U.S. counterterrorism laws have made it increasingly difficult for U.S.-based organizations to operate overseas. For example, after the 2004 tsunami, U.S. organizations operating in areas controlled by the Tamil Tigers, a designated terrorist organization, risked violating prohibitions against ‘material support’ when creating displaced persons’ camps and hospitals, traveling, or distributing food and water.”

For aid organizations like the International Red Cross, compliance with U.S. counterterrorism laws can force NGOs to violate standards of neutrality in their work. The Principles of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes state, “The humanitarian imperative comes first. Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone.”

In some cases, the report declares, counterterrorism laws have caused nonprofits to pull out of programs. For example, in 2003 Rockefeller Philanthropy Advisors suspended funding for a Caribbean program designed to “kick-start a flow of American charity” to that region because of an inability to comply with Treasury Department regulations.

Professor David Cole, a constitutional law expert at the Georgetown University Law Center, said, "The legal regime employed in the name of cutting off terror financing gives the executive branch a ‘blank check’ to blacklist disfavored individuals and groups, imposes guilt by association, and lacks even minimal attributes of fair process.”

He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”

“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.

Other observers believe that the campaign against charities that conduct programs in Muslim areas is part of a larger suspicion of Arabs and other Muslims. Samer Shehata, professor of Arab Politics at Georgetown University, told IPS, Islamophobia “produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc.”

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

Tuesday, July 22, 2008

New Challenge to Wiretap Law

By William Fisher

Civil liberties advocates have lost no time in asking a federal court to stop the government from conducting surveillance under the new wiretapping law passed by Congress and signed by President George W. Bush last week.

The American Civil Liberties Union (ACLU) and a coalition of other groups declared that the new law “gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls.”

The ACLU coalition’s legal challenge, which was filed in the U.S. District Court for the Southern District of New York, seeks a court order declaring that the new law is unconstitutional and ordering its immediate and permanent halt.

ACLU Executive Director Anthony D. Romero charged that the new law “not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.”

He added, “Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged."

The wiretapping issue became the center of a storm of criticism after The New York Times revealed that, following the Sept. 11, 2001 terrorist attacks, President Bush had secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the U.S. to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the U.S. without warrants in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.

Criticism at the time came from a wide variety of civil libertarians, including Bob Barr, a former conservative Republican congressman from Georgia and currently the Libertian Party candidate for President. He told IPS that in 2000, Gen. Michael Hayden, then head of the National Security Agency (NSA) and currently Director of National Intelligence (DNI), told a congressional hearing on wiretap targets, "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."

Barr’s advice was, “If the president doesn't like the law, the solution should be to amend, not violate it.”

The Bush Administration then called on Congress to pass amendments to the original Foreign Intelligence Surveillance Act (FISA), which was enacted in 1978. The 2008 version emerged as the result of a “compromise” between Democrats and Republicans in the House and Senate. Among its other provisions, the new law granted retroactive immunity to the telephone companies that had assisted the government in the warrantless wiretaps.

The surveillance legal challenge was filed on behalf of a coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work -- which relies on confidential communications- - will be greatly compromised by the new law, the ACLU said.

The FISA Amendments Act of 2008 declares that "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights.” But the ACLU and its coalition claims the new wiretapping law “fails to provide fundamental safeguards that the Constitution unambiguously requires."

Plaintiffs in the suit include The Nation magazine and two of its contributing journalists, Naomi Klein and Chris Hedges; Amnesty International USA; Global Rights; Global Fund for Women; Human Rights Watch; PEN American Center; Service Employees International Union; the Washington Office on Latin America; the International Criminal Defense Attorneys Association; and several individual defense attorneys and journalists.

In its legal challenge, the coalition argues that “The new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.”

Nation magazine writer Naomi Klein said that "As a journalist, my job requires communication with people in all parts of the world -- from Iraq to Argentina. If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised."

She added, "I cannot in good conscience accept that my conversations with people who live outside the U.S. will put them in harm's way as a result of overzealous government spying. Privacy in my communications is not simply an expectation, it's a right."

Human Rights Watch program director Iain Levine said the new legislation “will allow mass government interception of electronic communications, so long as the target is overseas, without meaningful judicial oversight or warrant identifying who or what is to be subject to surveillance.”

“In the course of our work reporting on and defending human rights, we regularly need to be in contact with activists and human rights victims all over the world,” he said. “Knowing that the U.S. government could be monitoring our calls and emails often inhibits our efforts, and causes us to take expensive and delaying measures to keep our communications secure.”

Internet privacy under the new law continues to be a concern to civil libertarians. For example, the San Francisco-based Electronic Frontier Foundation (EFF) has filed a number of Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) and other U.S. Department of Justice (DOJ) offices, seeking the release of documents it says will reveal whether the government has been using the USA Patriot Act to spy on Internet users to collect secret information about their Internet habits without a search warrant.

Kevin Bankston, an EFF attorney, told IPS, “Although Internet users reasonably expect that their online reading habits are private, the department of Justice (DOJ) will not confirm whether it collects or believes itself authorized to collect URLs using pen-trap devices."

Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get; instead of having to show probable cause, the government need only certify relevance to its investigation. The government is not required to inform people that they are or were the subjects of pen-trap surveillance.

Monday, July 21, 2008


By William Fisher

As the long–awaited trial of Guantanamo detainee Salim Ahmed Hamdan opened this week at the U.S. naval base in Cuba, human rights groups filed suit demanding that the Department of Justice (DOJ) produce documents related to the U.S. government’s ghost detention, torture, and extraordinary rendition program, and Attorney General Michael Mukasey called on Congress to quickly pass new legislation to guard against judges imposing a patchwork of conflicting rules that could produce confusion, more court challenges and even lengthier delays for prisoners who have been held at Guantanamo for as long as seven years.

Hamdan, Osama bin Laden's alleged former driver, is the first terror suspect to face trial at Guantanamo in seven years and the first test of whether that system can dispense fair and impartial justice. The charges against the Yemeni father of two will proceed before a military commission -- the first since the end of World War II -- with a jury of uniformed officers and rules that many constitutional authorities believe give great deference to the prosecution. Evidence obtained from "cruel" and "inhuman" interrogation methods as well as hearsay evidence will be admissible under certain circumstances. Hamdan faces a maximum of life in prison if convicted.

"This was supposed to be the premier system for bringing to justice the masterminds of the worst crime ever committed on U.S. soil," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The only result in seven years was the conviction of an Australian kangaroo trapper, who is now free."

He was referring to Australian David M. Hicks, who last year pleaded guilty to a terrorism charge in the only Guantanamo case to be fully adjudicated. Hicks was sent to Australia as part of a political deal and was later released from prison there.

Hamdan’s lawyers have argued he was beaten and abused at Guantanamo and subjected to a program of systematic sleep deprivation that they said constitutes torture.

Hamdan is one of about 20 prisoners whose cases are scheduled to be heard by juries composed of military service members rather than civilians.

The Hamdan trials, as well as those that are to follow, have been widely criticized by constitutional scholars. For example, Brian J. Foley, Visiting Associate law professor at Boston University, told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”

He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies.”

Defenders of the military commissions are defending its multi-layered due process procedures -- including the right to appeal a conviction to federal court -- that Congress added since Bush proposed the panels. Proponents of the new system say people who committed heinous acts against the United States do not deserve the constitutional protections of its federal courts.

Even if Hamdan is acquitted of conspiracy and material support of terrorism charges – an unlikely outcome -- he probably would not be released because he has been designated an "enemy combatant" by the military. The military contends that prosecutors would be unchanged by an acquittal even if international pressure mounts for his release.

Such international pressure came last week, when hundreds of European legislators filed a court motion to postpone Hamdan's trial while he challenges the legality of Military Commissions.

In a new legal brief, the Europeans said they were “concerned that (Hamdan's) imminent military commission trial will not exclude evidence that contravenes international standards of fair trial, due process and the protection of human rights."

But last week, a federal judge ruled that Hamdan’s Military Commission trial should continue, and suggested that appellate relief could come from the military’s own internal process or from the U.S. Federal Court of Appeals.

Hamdan has already become something of an icon in U.S. constitutional history. In a lawsuit brought by Hamdan's attorneys, the Supreme Court in 2006 struck down the military commission system, ruling that it was not authorized by federal law and violated the Geneva Conventions. Congress reacted by passing the Military Commissions Act of 2006, under which
Hamdan is being tried.

The Act banned evidence obtained using torture but said statements derived from harsh interrogations are allowable if the judge finds the evidence reliable and relevant. In 2005, Congress banned "cruel, inhuman, or degrading treatment," but statements made under such duress before that date could be admissible. Many of Hamdan's interrogations occurred before the congressional action, according to court testimony.

The Hamdan proceedings are seen by observers as a way to test the long-delayed military system on an alleged low-level al-Qaeda foot soldier and thus be primed for the trials of “high value” terrorist leaders to come. These include proceedings against Khalid Sheik Mohammed, self-proclaimed mastermind of the Sept. 11, 2001, attacks, Abu Zubaydah, and other accused planners.

One of the most prominent figures to argue for delay of Hamdan’s case is Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo. He resigned his position late last year in protest over what he said was political interference.

“My policy as chief prosecutor had been that we would not offer any evidence obtained by waterboarding, specifically, or any other interrogation techniques that were unduly coercive,” Davis said, adding, “I felt I couldn’t ensure full, fair and open trials, and I resigned—asked to resign.” In April, he testified as a witness for Hamdan and offered a harsh critique of the military commission system.

Attorney General Mukasey’s plea to Congress related to legislating rules to avoid confusion and further delays in the large number of habeas corpus suits already filed with the federal appeals court in which Guantanamo detainees are challenging the basis of their detention. But with only five weeks remaining in its legislative calendar, it is doubtful that the current Congress could develop a plan that would be acceptable to the Bush Administration and to both Republican and Democratic lawmakers.

As the Hamdan trial began, leading human rights groups filed a court motion under the Freedom of Information Act (FOIA) for a preliminary injunction to compel the Department of Justice and other agencies to release information requested in 2004 and 2006. The requested information relates to the government’s program of secret or irregular detention.

The groups are Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law’s Center for Human Rights and Global Justice (NYU IHRC/CHRGJ).

“The more the DOJ stalls in admitting its role in the rendition, disappearances, and torture program, the more obvious it becomes that it has greatly contributed to the illegality that has come to define this administration over the past seven years,” said Jayne Huckerby, Research Director of the CHRGJ.

Sunday, July 13, 2008

Free at Last, Free at Last – or Not

By William Fisher

As a federal appeals court ruled that the U.S. military improperly labeled a Chinese Muslim held at Guantanamo Bay an “enemy combatant” and ordered that he be released, transferred or granted a new hearing, an influential Congressional committee delivered a scathing criticism of China’s closed trial of 15 co-religionists on terrorism charges -- resulting in the immediate execution of two defendants, three suspended death sentences, and ten sentences to life imprisonment.

The Chinese Muslims are known as Uighurs, part of a Muslim minority from western China. They have been reliably reported to have been systematically persecuted by Chinese authorities.

The legislators’ charges came from leaders of the Congressional Human Rights Committee (CHRC), Co-Chairmen Rep. Jim McGovern, a Massachusetts Democrat, and Virginia Republican Rep. Frank Wolf. The two lawmakers condemned “the harsh pre-Olympic crackdown” in the Xinjiang Uighur Autonomous Region (XUAR) of China. They also expressed their strong concern over credible reports detailing abuses of due process and rule of law in the July 9th closed trial.

In a statement, Rep. Wolf said, “The Chinese government should not be permitted to use the War on Terror or Olympic security as a front to persecute the Uighurs. These ‘trials’ appear to be no more than a ploy to oppress religious freedom and ethnic minority groups.”

Rep. McGovern added, “China must allow minimum standards of international law, and must open trials to independent observers. China clearly fails in its obligations under international law and certainly fails in its commitments to improve human rights as the host of the 2008 Olympic Games.”

The group called on the Chinese government to “uphold the commitments they made to the international community when they were awarded the privilege of hosting the 2008 Olympic Games and improve their deplorable human rights record.”

The Uighurs also made other news in the U.S. last week, when a federal appeals court ruled that the U.S. military improperly labeled Huzaifa Parhat, a Chinese Muslim held at Guantanamo Bay, an “enemy combatant.” The Court ordered that he be released, transferred or granted a new hearing. The ruling by the U.S. Court of Appeals in Washington marks the first time a federal court has weighed in on the issue of a Guantanamo detainee’s classification and granted him the opportunity to try to secure his release through civilian courts.

A lawyer for Parhat, who has been kept virtually incommunicado for more than six years, said he and other members of Parhat’s legal team would seek to have him freed immediately.

Parhat is one of 17 Uighur Muslims still being held at Guantanamo even though the U.S. government acknowledges they pose no threat.

The decision was the latest in a series of legal setbacks for the George W. Bush administration and its efforts to defend the military commissions process at the U.S. naval base at Guantanamo Bay, Cuba.

The order came just days after the Supreme Court ruled that the approximately 270 remaining detainees at Guantanamo have a constitutional right of habeas corpus, which allows them to challenge their detention in federal courts. That ruling marked the third time since 2004 that the nation’s highest court has limited the government’s power to use the military to detain and prosecute foreign nationals at Guantanamo.

The appeals court specified that Parhat could “seek release immediately” through a writ of habeas corpus in light of the Supreme Court’s recent decision. Parhat’s case and scores like it had been put on hold until the Supreme Court made its ruling on the habeas corpus issue.

“Now all of these cases have been revived and this is the first case to move forward,” said David Cole, a constitutional law professor at Georgetown University. “And here is somebody that the military has been holding on to for six years and the federal court now says he shouldn’t have been held in the first place.”

He added, “Absent this independent judicial review, he might have been sitting there for another 10 to 15 years. Now he has a chance to find freedom,” said Cole, one of the nation’s preeminent constitutional scholars.

Two years ago, five Uighurs were released from Guantanamo to seek asylum in Albania, after the United States said it could not return them to China because they would face persecution there. The released Uighers live in an Albanian refugee camp, unable to speak the language and forbidden to work.

All of 17 Uighurs being held at Guantanamo have been cleared for release as part of annual reviews. The government says that, while they are still designated enemy combatants, they are not considered significant threats or to have further intelligence value.”

The Uighurs are part of a large group of Guantanamo detainees who have been cleared for release, but nonetheless remain in detention. The State Department claims it cannot find countries willing to accept these detainees. U.S authorities have balked at allowing the Uighurs into the United States.

Parhat, 37, and the other Uighurs were captured in Afghanistan after the Sept. 11 attacks. He insisted he sought refuge there from an oppressive Chinese government and never fought against the United States. The U.S. government has produced no evidence suggesting that he ever intended to fight, but it designated him an enemy combatant because of alleged links to the East Turkestan Islamic Movement, a separatist group demanding independence from China that Washington says has links to Al Qaeda.

While refusing to return the Uighers to China, the U.S. did allow Chinese officials to visit Guantanamo to interrogate the Uighur detainees.

Despite the court’s ruling, Parhat’s future is unclear. And while the U.S. government ponders its legal options, says Human Rights Watch, Parhat and his 16 fellow Uighurs continue their life in a cage.

Parhat wakes at 4:30 or 5:00 A.M., prays, goes back to sleep, walks in circles -- north, south, east, west -- round his 6-by-12 foot cell for an hour, goes back to sleep for another two or more hours, wakes and reads the Koran or a magazine (written in a language that he does not understand), pray, walks in circles once more, eats lunch, prays, walks in circles, prays, walk in circles, goes back to sleep at 10:00 p.m.

Thursday, July 03, 2008


By William Fisher

Maher Arar, the poster boy for the U.S. Government’s program of “extraordinary rendition” has again been denied his day in court and Congressional efforts to rein in the Bush Administration’s widespread use of national security as a defense appear to be foundering.

Late last month, a federal Court of Appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller, and other senior government officials, could not be heard. After government lawyers invoked the “state secrets” privilege, the court concluded that hearing Arar’s claims would interfere with sensitive matters of foreign policy and national security.

Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York’s John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to U.S. authorities by the Canadian Government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of Al Qaeda.

When the government invokes the “state secrets” privilege, Federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, it dismissed a suit over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition."

In a rare move, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list.

In one of the Arar case’s more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. Government that denied Arar admission to America.

Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada’s role in his rendition and awarded him a $10 million settlement.

The U.S. Government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the U.S. had mishandled the case. “We do not think that this case was handled as it should have been,” Ms. Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”

The court also rejected Arar’s claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.

Arar’s lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Constitutional Rights (CCR), told us, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”

Maria LaHood, a senior CCR attorney, told us that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case.

She added, “Giving short shrift to the facts, the majority opinion grants impunity to U.S. officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The Defendants have again blocked Maher's access to justice, this time with the Court's seal of approval.”

Meanwhile, legislation to curb the government’s use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania’s Arlen Specter, the senior Republican on the Judiciary Committee.

It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.

"It's long past time for Congress to address the state secrets privilege. Congress needs to ensure -- and the American people need to feel confident -- that the courts are adjudicating the privilege properly and not just giving the Executive a free pass. No one in America should be above the law. That's why this legislation is so critical,” Sen. Kennedy said.

But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall.

Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June 2007 on the report of the Department of Homeland Security Office of Inspector General on Arar’s removal.

Arar testified at the hearing – the first time he has appeared before any U.S. governmental body. His testimony was via video because he is still on the government’s ”no-fly” watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not.

At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the American government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants.

Earlier, Skinner's testimony and a 50-page report found that U.S. immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on “ambiguous" assurances from Syria that he would not be. Skinner also questioned U.S. officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture.

Barring the unlikely chance that the Supremes will agree to hear this case, the Bushies will see it as merely another notch in the belt of injustice it has so successfully tied around the neck of the lady with the scales. It will likely fall the next president to start undoing Dubya’s sterling legacy.

So the question is: Who do you think is more likely to take this issue on, starting with an official government apology -- Obama or McCain?