Saturday, August 30, 2008

The Silence of the Shams

By William Fisher

OK, can we please forget the unforgettable Sarah Palin for five minutes and focus on one of the dozens of issues that obviously look like third rails to candidates of both parties?

Let’s spend a few minutes pretending:

You’re an American Muslim. You live in Dearborn, Michigan. You work at Walmart. You have three kids, two cars and a mortgage. You’re a compulsive voter.

This is the time of the year – the month of Ramadan -- when you traditionally spend a lot of time thinking about what your parents called “zakat” – giving to the less fortunate. It’s a basic tenet of Islam.

This year, you’d like to do something to help Palestinian families in Gaza – that dreadful place where jobs, food, medical help, shelter, education – and just about everything else – is in desperately short supply.

So you whip out your checkbook and send off your hundred bucks to a local charity that has a long record of supporting Palestinian families.

You’ve fulfilled your religious obligation. You feel good about it. Then you get on with the rest of your life.

But, a while later, you pick up your local paper and there’s a front-page story that tells you the charity you wrote the check to has been closed down by the federal government for providing “material support” to a terrorist organization.

Its records and equipment have been seized by the Feds and its assets have been frozen. Among its assets is your hundred bucks.

You phone the charity, but the number has been disconnected. You watch the papers for news about how this happened. There’s almost no reporting on the story. The charity’s lawyer denies that his client supports terrorist organizations. The government holds a press conference where an official repeats the charge but gives no details.

Unusual? Hardly. Millions of generous Americans have had the same experience. And they are still having them.

How does this happen?

In the months following the terrorist attacks of September 11, 2001, the U.S. government launched its "global war on terror" by rounding up thousands of "Middle Eastern-looking" men and women, jailing them without charges or access to lawyers. After months, it had accused none of them of terror-related crimes, convicted no one, and ended up deporting some for non-criminal immigration violations.

At about the same time, the government opened up a second front against charitable organizations it suspected of providing financial or other material assistance to groups the government designates as "terrorist." While the campaign applied to all domestic nonprofit organizations, the lion's share of scrutiny, suspicion, and preemptive action fell on groups that support Muslim causes.

Since 9/11, there has been an exponential increase in government surveillance of the financial practices of charities serving Muslim communities both in the U.S. Numerous charities have been shut down, their records seized and their assets frozen – all with virtually no due process. But only one such organization – the Holy Land Foundation -- has been brought to trial. That trial ended in the exoneration of one of the defendants and a hung jury on the fate of the others. The government is about to re-try the case.

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

Meanwhile, none of the assets frozen by the Treasury Department – which administers the scrutiny of charitable organizations – has been returned, despite numerous requests. These assets include funds the charities require to pay for their legal defense.

The government’s pursuit of not-for-profit groups that support Muslim causes has caused a dramatic decrease in contributions and has left donors and volunteers confused about which organizations and institutions they can trust.

Now, as American Muslims again mark the beginning of Ramadan, charitable organizations serving the American Muslim community are taking what some observers believe is a desperate last step to keep the U.S. government from shutting them down.

Muslim Advocates (MA), a San Francisco-based national educational and advocacy organization established by a 500-plus network of Muslim American lawyers, is teaming with the Better Business Bureau (BBB) Wise Giving Alliance to launch a new initiative to improve the fiscal management and administration of American Muslim charitable organizations.

Aziz Ahmad, an MA staff attorney, told us that sponsors of the program hope it will begin to restore donors’ confidence in charitable organizations that support Muslim causes. He added: “We hope the government will be less inclined to prosecute American Muslim nonprofits and mosques for supporting terrorist causes if they demonstrate that they meet the highest standards of legal compliance, financial accountability and good governance.”

The new initiative combines MA’s legal expertise and the BBB’s reputation as an independent charity evaluator with over 1,200 charities reviewed to date. It will provide charitable organizations with free services including assistance a network of attorneys and accountants to assess their current practices and identify information needed for meaningful review by the BBB’s Wise Giving Alliance.

The Alliance will also conduct evaluations to determine that an organization has met its 20 Standards of Charity Accountability. These are considered by many to be the toughest, most comprehensive governance and fiscal management standards in the nonprofit sector.

At the same time, MA will produce informational materials and host a series of free educational seminars for nonprofit leaders in eight cities across the U.S., beginning in the San Francisco Bay area in October 2008. These seminars will advise Muslim charities on a wide range of issues, including how to improve their governance, increase transparency, and ensure legal compliance with anti-terror financing laws and regulations. Thus far, seven charities have signed on to the program, Ahmad told us.

But the BBB’s Wise Giving standards are applicable to charitable organizations generally and do not specifically address the unique challenges that have been faced by Muslim not-for-profits since the start of the “war on terror.” So what remains unclear is how improvement of these organizations’ professional practices will influence the government’s administration of the “material support” statute and regulations.

A number of authorities in the not-for-profit sector doubt that the government will be deterred by the new MA/BBB initiative. Kay Guinane, director of Nonprofit Speech Rights at OMB Watch, a widely respected government watchdog organization, told us she believes the MA/BBB initiative is “useful first step toward keeping Muslim charities from being shut down.” However, she said, “fundamental change requires a change in the government’s basic approach to interpreting the law” which she says is “ultimately counterproductive.”

She added, “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.”

(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.)

In a recent report, Guinane’s organization charged that 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.”

The report found 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.”

It concluded that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accused 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. And it contended that federal agencies “ignore nonprofits’ calls for change,” and that “Congress has not utilized its oversight powers to review counterterrorism programs.”

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

The Treasury Department’s Office of Foreign Assets Control (OFAC) was the target of much of the report’s criticism of the government’s approach. After 9/11, Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were allegedly 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.

Guinane told us that the OFAC terrorist “watchlist” was originally designed to identify drug kingpins and other more conventional criminals and is of little value due to “questionable accuracy” caused by numerous duplications. Moreover, she said, most not-for-profit groups, especially smaller ones, lack the resources to monitor it.

She added, “I don’t think there should be special rules governing not-for-profits that support Muslim causes. This has evolved into a bizarre regulatory regime that is unduly discriminatory.”

So where do our presidential wannabees – and both parties’ candidates for Congress -- stand on this issue? Nowhere. They may disagree on practically everything, but they appear to be in total agreement that defending the civil rights of Muslim Americans is their ticket to political oblivion.

But this is not just about Muslim Americans. It’s about fundamental fairness. It’s about the injustices that befall ordinary Americans as a result of bad law, poorly administered. And it’s about politicians all too willing to exploit an environment of fear -- or, just as bad, all too willing to remain silent – rather than risking losing an election.

Saturday, August 16, 2008


By William Fisher

This column is for those of you who despair about "activist" judges becoming the Bush Administration's echo chamber and look to Congress to solve the nation's problems. Here are a few things you might want to think about:

Since Dubya launched our "global war on terror," it was not Congress but the Courts that handed the president his most stinging defeats. And it was Congress, not the Courts, who proved to be the supine servants of the Bush Administration.

Case in point: In 2004, Yaser Esam Hamdi, a U.S. citizen being detained indefinitely at Guantanamo as an "illegal enemy combatant," sued President Bush, claiming he was denied his right to have the courts adjudicate the basis of his detention. A U.S. District Court ruled against him. But the Supreme Court reversed the dismissal of his habeas corpus claim. It recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

Case in point: In the same year, the Supreme Court in a case called Rasul v. Bush, established that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.

Case in point: Two years later, it was the Supreme Court that held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."

That decision led to Congress's passage of the Military Commissions Act, which most legal scholars find to be irreparably flawed. The challenge to that Act of Congress eventually found its way to the Supreme Court. It was brought by Salim Hamdan, Osama bin Laden's driver, who recently became the first detainee in seven years to face any kind of trial at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious charge brought against him - conspiracy to kill Americans - and convicted him of materially supporting terrorism. He could be a free man before the end of the year.

Case in point: Also in 2006, it was a federal judge in Detroit who ruled that the Bush administration's "warrantless wiretapping" program was illegal. After the Supreme Court refused to review that decision, the Bush Administration submitted the program for approval by the FISA (Foreign Intelligence Surveillance Act) court. Within months, that secret spying court had also declared the program illegal.

It was Congress, not the judiciary, which then passed legislation not only approving the warrantless domestic wiretapping powers, but which granted immunity to the telecom companies that were being sued for helping with the program.

Now comes more potential bad news for the Administration. In a breathtakingly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush Administration's rendition program.

Why is this move by the Second U.S. Circuit Court of Appeals in Manhattan unusual? Well, first, the full circuit assembles for a case only once or twice a year. Secondly, the plaintiff's attorneys never asked for a full hearing. Third, any full airing of this particular case is certain to result in embarrassment to the Bush Administration.

Bringing the suit is Maher Arar, a telecommunications engineer from Canada, who was detained at Kennedy Airport in 2002, flown to Jordan and expelled to Syria, where he was held for ten months and said he was tortured.

In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to Al Qaeda. The commission found that the Canadians had provided American officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.

The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been." In June, the Department of Homeland Security's inspector general said at a Congressional hearing that the Justice Department's ethics office was reviewing the decision to send Arar to Syria.

The rehearing will take place in December, this time before of all 13 appeals judges.

The defendants include John Ashcroft, who was attorney general when Mr. Arar was stopped at Kennedy airport on his way home to Canada from a vacation because immigration officers found his name on a terrorist watch list. Mr. Arar accuses Ashcroft and other Bush administration officials at the time - among them Robert S. Mueller III, director of the Federal Bureau of Investigation, and Tom Ridge, the director of homeland security - of violating federal law and his civil rights.

In the original decision, the three-judge panel affirmed a lower-court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint. The reason, they said, was that technically, Arar was never in the United States.

But one of the three judges dissented, blasting as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.

That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at J.F.K. Airport."
Legal experts believe the rehearing resulted from a request by one of the Appeals Court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.

However, a full U.S. appeals court hearing is far from a slam-dunk. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar's case in open court would compromise America's national security.

However much we may applaud court rulings in the Guantanamo and warrantless wiretapping cases, it is in the area of "state secrets" that the courts have generally been almost universally deferential to the claims of the Executive Branch. No one denies that there are genuine secrets that any government has the right - the obligation - to keep. But, once rare, use of the state secrets privilege has increased exponentially during the Bush years, and the courts with only a few exceptions have been quick to support the government's assertions.

So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when 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 watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.

The bottom line is that invocation of the state secrets privilege has kept many cases from ever coming before any court. It is an essential part of the curtain of secrecy the Bush Administration has built, often for nothing more than avoiding political embarrassment.

There are efforts in Congress to enact legislation to limit the government's use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that attempts to do just that -- it would require the government to actually produce the evidence it says is protected for review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee (only one Republican, Sen. Arlen Specter (R-Pa.) voted to move it to the Senate floor). That makes the future of the measure unclear.

Also unclear is the role the Judiciary will play in a new Administration. Several of the current Supreme Court justices are nearing retirement age. John McCain has vowed to appoint replacements in the mould of Roberts, Alito, Scalia and Thomas, i.e. the kinds of conservative judges who have predictably dissented in cases such as those brought by Guantanamo detainees in particular and those involving expansionist presidential power generally. But it's unclear how a President McCain would get their nominations through a Congress dominated by Democrats.

But neither McCain nor Obama have had much to say about issues such as the role of the Judiciary or the limits of presidential power. Apparently these are concerns that both presidential candidates appear to think are so far down in the weeds that American voters won't understand their importance. Or too politically dangerous to discuss. Whatever their reasons, both candidates have been sadly silent on these issues.

Yet voters have a right to demand that their presidential candidates give them more credit for being able to understand complex issues. They need to demonstrate that they can explain these issues in language ordinary voters will understand. They need to tell voters how they would approach those issues. And they need do a better job of explaining the centrality of these issues to the rule of law and to the very definition of who we are as a nation.

Wednesday, August 13, 2008


By William Fisher

As a new report forecasts that the 190,000 private contractors in Iraq and neighboring countries will cost U.S. taxpayers more than $100 billion by the end of 2008, an under-the-radar Florida court case suggests that President George W. Bush – a staunch contractor supporter -- is preparing to throw security firms such as Blackwater under the political bus.

In the Florida case, relatives of three American servicemen killed in the 2004 crash of an aircraft owned by Blackwater Aviation in Afghanistan are suing the company for damages, based in part of U.S. government reviews that concluded that errors committed by Blackwater staff were responsible for the deaths. This week, despite President George W. Bush's support for what he has called the critical roles played by overseas contractors, his Administration failed to meet a deadline for presenting the court with any defense of Blackwater.

The Administration’s silence has caused consternation among Blackwater and its supporters. Erik Prince, Blackwater's chairman, told TIME magazine, "After the President has said that, as Commander-in-Chief, he is ultimately responsible for contractors on the battlefield it is disappointing that his Administration has been unwilling to make that interest clear before the courts.”

Some observers have speculated that the Administration’s silence can be attributed to the controversial nature of the contractor issue and a reluctance to address it during a hotly contested presidential election year.

The Florida battle, which could eventually find its way to the U.S. Supreme Court, turns on the question of whether Blackwater and other overseas contractors are subject to U.S. law. That question arises because of a decree issued in 2005 by the then U.S. Iraq Administrator, L. Paul Bremer, granting contractors legal immunity. The Iraqi government claims that Blackwater and other contractors have been responsible for the deaths of Iraqi civilians and wants to make them subject to Iraqi law.

The U.S. has resisted this move, which is thought to be part of the ongoing stalemate in negotiations with Iraq over the future status of U.S. forces in that country.

The White House has also attacked a bill recently passed by the House of Representatives that would place combat-zone contractors under the jurisdiction of U.S. courts. It called the measure is an unacceptable extension of federal jurisdiction overseas, and said it would place additional burdens on the military.

Blackwater’s argument is that the company should be covered by the same "sovereign immunity" that protects the U.S. military from lawsuits because the downed flight was under the command and control of the U.S. military.

Last month, this argument was rejected by three federal judges, who cited the U.S. government's failure to take a position in defense of Blackwater as one of their reasons. In their opinion to allow the lawsuit to proceed, the judges ruled that "The apparent lack of interest from the United States... fortifies our conclusion that the case does not yet present a political question.”

Lawyers for many major contractors including DynCorp, Kellogg Brown and Root, Blackwater and others, say a dangerous precedent would be established if this and similar cases are allowed to go forward. Such a decision, they say, would open contractors to large money damages and greatly higher risk insurance costs that could adversely affect their ability to carry out the jobs the U.S. government has hired them to do.

As the Florida case made its way through the U.S. legal system, a new report from the Congressional Budget Office (CBO) contends that the cost of having military personnel provide security services in Iraq might be little different from the prices charged by private security contactors.

The report said that $6-$10 billion has been spent on security contactors thus far in 2008 and estimated that about 25,000-30,000 employees of security
firms were in Iraq as of early this year. It estimates that, if spending for contractors continues at about the current rate, $100 billion will have been paid to military contractors for operations in Iraq.

The report revealed that about 20 percent of funding for operations in Iraq has gone to contractors. Currently, it said, there are at least 190,000 contractors in Iraq and neighboring countries, a ratio of about one contractor per U.S. service member. It noted that the U.S. has relied more heavily on contractors in Iraq than in any other war to provide services ranging from food service to guarding diplomats.

The report also noted that the legal status of contractor personnel is a gray area of U.S. law, particularly for those who are armed. It said that military commanders have less direct authority over contractors because their contracts are managed by a government contracting officer rather than a military commander.

The CBO review was requested by Senator Kent Conrad, a North Dakota Democrat who is chairman of the Senate Budget Committee. In a statement, Conrad said the Bush administration's reliance on military contractors has set a dangerous precedent. The use of contractors "restricts accountability and oversight; opens the door to corruption and abuse; and, in some instances, may significantly increase the cost to American taxpayers," he said.

The report comes at a time when the actions of contractors in Iraq and Afghanistan are coming under increased scrutiny. Contractors, including Blackwater and KBR, have been investigated in connection with shooting deaths of Iraqis and the accidental electrocutions of U.S. troops. The Senate Democratic Policy Committee heard testimony a few weeks ago from a former DCAA contract overseer who was effectively fired because he refused to authorize $1 billion in unsubstantiated charges from KBR. The Government Accountability Office released a report that confirmed whistleblower complaints of DCAA supervisors issuing unsupported findings that were favorable to contractors. And last week, Government Executive reported that nearly a dozen former DCAA employees see DCAA as a very troubled agency that is more concerned with performance goals than actually overseeing contracts.

The death of a U.S. soldier, who was electrocuted in January while showering in Iraq, prompted a House committee oversight hearing last month into whether KBR Inc. has properly handled the electrical work at bases it maintains. The military has also said that five other deaths were due to improperly installed or maintained electrical devices, according to a congressional report.

Contractors’ activities have drawn sharp criticism from private non-governmental watchdog groups, such as OMB Watch. OMB stands for the Office of Management and Budget, which prepares and presents the president’s budget to congress.

Craig Jennings, OMB’s Federal Fiscal Policy Analyst, told us, “$100 billion is a very large amount of money -- in fact, Iraq's GDP was just over $100 billion in 2007. But what staggers my imagination is how sober adults would be willing to divert such vast sums of America's financial resources to the bank accounts of private firms whose dealings are opaque to taxpayers and, for the most part, held unaccountable.”

He added, “I think advocates of unaccountable privatization are beginning to reap what they have sown: defending privatization of war-making on such an enormous scale is becoming tenuous. It's hard to paint a picture of contractors providing taxpayers value when so many instances contractor misconduct have found their way into the public's consciousness.”
Jennings also called attention to the shortcomings of the military auditing process.

He told us, “This magnitude of expenditures on private contractors is especially striking in light of recent government and media reports of dysfunction in the Defense Contract Audit Agency (DCAA). The protection of the interests of American taxpayers is apparently suffering a number of impediments.”

Monday, August 11, 2008


By William Fisher

I never thought I’d find myself defending Karen Hughes, so this is a big deal.

Ms. Hughes, you will recall, is the Good Friend of Bush (GFOB) who was one of Dubya’s closest confidantes in Texas and later in the White House. After taking a sabbatical from playing Karl Rove in Drag, she returned to Washington to become Under Secretary of State for Public Diplomacy.

Now I am not exactly Ms. Hughes’ biggest fan. I remember writing at the time of her nomination to be America’s image-maker to the world that I couldn’t think of a less qualified person to take on this arguably impossible job. And over time she unfortunately proved me right.

But now, departed again from Washington, here she is being attacked by a guy with even less credibility.

That guy is Steve Emerson, the once-ubiquitous self-proclaimed anti-terrorist “expert,” who sees Islamic militant bomb throwers under every rock and describes Islam as a faith that “sanctions genocide, planned genocide, as part of its religious doctrine.”

In an article in my favorite hysterical neocon rag, NewsMax, Hughes is accused of funneling “millions of dollars in U.S. government grants to radical Islamist organizations, many of whose leaders have been convicted or indicted in terrorism cases in the United States.”

When I noticed the byline on this piece, I should have known it wouldn’t pass the smell test. It was written by one Kenneth R. Timmerman.

Timmerman, of course, is the author of one of the truly wonderful pieces of disinformation published by Insight Magazine of the right-of-Genghis-Khan Washington Times in 2002. In that gem, Timmerman confirmed Saddam Hussein’s possession of Weapons of Mass Destruction.

The source of his “intelligence”? None other than Ahmad Chalabi and the Iraqi National Congress. The headline read: “How Saddam Got Weapons of Mass Destruction: Saddam Hussein’s War Machine Is Being Built Systematically to Strike At the United States With New Nuclear, Biological and Chemical Weapons Designed to Kill Millions.”

Awesome scoop, Ken!

So in his latest riff, Timmerman reports on Emerson’s testimony to a Congressional committee.

Emerson told the House International Relations Committee: “When Ms. [Karen] Hughes was appointed as undersecretary of state for public diplomacy and public affairs, she set the tone to continue a disastrous policy of outreach with Islamist partners.” Many of the leaders of these “radical Islamist organizations” have been “convicted or indicted in terrorism cases in the United States.”

Well, just who are these “many”?

Emerson cites but one -- the Islamic Society of North America (ISNA), which he describes as “a Muslim Brotherhood-affiliated organization, [which] was an unindicted co-conspirator in last year’s terrorist financing trial against the Holy Land Foundation," Emerson told Congress. What he neglected to tell the lawmakers is that the Justice Department designated just about everyone except Adam’s housecat as an “unindicted co-conspirator” in that case – and that a jury exonerated the Foundation.

Emerson also charges that State Department grants went to the Muslim Public Affairs Council (MPAC), which he described as a group that has “publicly challenged the designation of Hezbollah and Hamas as terrorist organizations” (a canard often repeated by Islamophobics that has yet to be substantiated by any facts).

MPAC was but one in a long catalog of organizations Emerson accused of supporting terrorist causes. He said, “A number of groups that the State Department has funded or collaborated with have links to entities such as al-Qaida, Hamas and Hezbollah, all of which are designated as terrorist organizations by the United States government.” But he was a bit light on citing a single fact to support this claim. Like none.

He declared that the outreach policy championed by Hughes “legitimizes Islamism to the world and sends mixed messages to our allies, while sending a terrible message to moderate Muslims who are thoroughly disenfranchised by the funding.”

Emerson’s charges were not without predictable allies in Congress. Citing earlier warnings by Emerson and other “experts,” Republican Senators Tom Coburn of Oklahoma and Jon Kyl of Arizona wrote to Secretary of State Condoleezza Rice last month, demanding that she instruct the State Department to cancel all outstanding grants to “radical Islamist groups.”

Well, it might just be worth noting that many of the groups cited by Emerson as “radical” are the very same ones the FBI, CIA, NSA and other intelligence agencies have been courting since shortly after 9/11 in their efforts to recruit agents and language experts. And that some of them meet regularly with the FBI and Department of Homeland Security to provide insights into the attitudes of American Muslims.

To be sure, these organizations frequently disagree with U.S. government policies, particularly regarding the Middle East. They believe the U.S. has wasted precious years in the effort to resolve the Israeli-Palestinian dispute. They assert that the U.S. does little to apply pressure on Israel to rein in the building of new settlements in the West Bank. They think the invasion of Iraq was a colossal blunder. And they regularly complain about ethnic profiling and other official government discrimination against Americans of Arab descent and other American Muslims.

But so do big chunks of the American foreign policy community. Like those bomb-throwers at the Council on Foreign Relations!

Anti-Israel and anti-Semitic propaganda is daily fare throughout the Middle East. Much of it comes from the press controlled by the very authoritarian rulers the U.S. has been propping up for decades with billions in military and economic assistance. And much of the opposition to these autocratic regimes today is coming from the very organizations Steve Emerson tags as radical Islamists.

As for what Emerson calls our “disastrous policy of outreach” to Islamic partners, someone ought to remind him that outreach is at the very heart of America’s public diplomacy. The problem is not that we’re spending hundreds of millions on outreach. The problem is that, given George Bush’s Middle East policies, our outreach is not very effective at “winning hearts and minds.”

OK, forget hearts and minds. To be totally cynical, outreach and dialogue are probably our most effective means of obtaining intelligence.

But, to self-designated “terrorism experts” like Steve Emerson, keeping fear alive is Priority One. The good news is that we are no longer seeing Mr. Emerson’s talking head every time we turn our TVs on. And we aren’t seeing many of his op-eds in the responsible mainstream press anymore – except perhaps in the Wall Street Journal or the Washington Times.

Pity it’s taken the media so long to begin to question his value as an authentic source of reliable information. Should have happened after he became one of the first on-air pundits to say the bombing of the Federal Building in Oklahoma City had all the earmarks of Middle Eastern terrorism.

Makes you wonder how long it will take Congress to get it!

Friday, August 08, 2008


By William Fisher

Despite a sentence that effectively means convicted war criminal Salim Hamdan could be a free man before the end of this year, the future of Osama bin Laden’s driver is far from clear.

Found guilty on Wednesday of providing “material support” for a terrorist organization, al Qaida -- but acquitted on the more serious charge of conspiracy that alleged he was part of the al-Qaida effort to attack the United States -- a panel of six Pentagon-appointed military officers sentenced the 40-year-old Yemeni to five and a half years in prison. Given credit for the five years he has already served at the U.S. Navy’s detention center at Guantanamo Bay, Cuba, Hamdan’s release date could be later this year.

But the Bush Administration has said it has no intention of releasing Hamdan. Since he has been designated an “unlawful enemy combatant,” he could be held until the end of the ‘war on terror.” And what would constitute that “end” remains undefined.

What appears clear is that, if Hamdan is to be held beyond his release date, his attorneys will appeal to both the U.S. military and civilian court systems.

Hamdan’s was the first trial held at Guantanamo in seven years, and the first convened by the U.S. since Nazi leaders were tried at Nuremberg after World War Two. Government prosecutors had asked for a sentence of 30 years to life in prison.

In the aftermath of Hamdan’s trial, human rights groups and legal scholars voiced sharp criticism of the trial and the process through which Hamdan was brought to trial, and predicted that his legal journey was far from over.

Critics said the trial, which featured secret and hearsay evidence, closed proceedings, and the introduction of evidence obtained through coercion, was a demonstration of the flawed Military Commission process designed by the Bush Administration.

Vincent Warren, Executive Director of the Center for Constitutional Rights, an advocacy group that has mobilized many of the defense attorneys for Guantanamo inmates, told IPS, “For all the government’s attempts to paint the commissions as another Nuremberg, they remain utterly outside the law and will be mired in challenges for years to come. Hamdan was convicted based on laws that were passed long after he was picked up, and the commission allowed coerced evidence, both illegal under not only international law, but U.S. law, as well.”

His view was echoed by Larry Cox, executive director of Amnesty International USA. He said, “Hamdan’s trial revealed what is common knowledge -- the military commissions are fatally flawed and do not adhere to major aspects of the rule of law. Hamdan suffered nearly seven years of unlawful detention, only to face a process that falls far short. So far the trial continues the Bush administration’s efforts to escape the rule of law and the requirements of justice.”

And Brian J. Foley, Visiting Associate Professor at Boston University law school, told IPS, "The trial was a show trial. The rules of evidence are so tilted in the government's favor that the tribunal is ill-designed for getting at truth. It's hard to credit any verdict, though it's telling that the Executive failed to win the entire case even in its contrived system. That, however, in no way proves the system is fair or that it works."

But others who support the military commission system termed it legitimate and fair. For example, Washington lawyer David Rivkin, a consistent supporter of the administration’s detention policies, said, “This is an enormously compelling indication of how independent the process has been.”

And Deputy White House spokesman Tony Fratto described the trial as fair. He said it would now open the way for prosecutors to proceed to try about 80 Guantanamo detainees for war crimes. Nineteen of these have already been charged.

The verdict and sentence will automatically be appealed to a special military appeals court in Washington. That court can reduce, but cannot increase, his sentence. Hamdan can then appeal to U.S. civilian courts as well.

Defense lawyers said Hamdan's rights were denied by an unfair process crafted by Congress after several Supreme Court decisions that found previous tribunal systems in violation of U.S. and international law. They criticized the use of interrogations as key to the government's case, saying that these were the products of coercive tactics, including sleep deprivation and solitary confinement.

"The problem is the law was specifically written after the fact to target Mr. Hamdan," according to Charles Swift, one of Hamdan's civilian lawyers. Swift began his defense of Hamdan as a U.S. naval officer and continued his representation after he retired from the navy.

Hamdan was convicted of providing material support to terrorism by driving bin Laden around Afghanistan at the time of the Sept. 11, 2001 attacks. But he said he “needed a job” and that he merely had a "relationship of respect" with bin Laden, as would any other employee.

He was acquitted of the far more serious charge of conspiracy to participate in the September 11, 2001 attacks on the U.S. and in other terrorist attacks. He was also found not guilty on three other counts alleging he knew that his work would be used for terrorism and that he provided surface-to-air missiles to al-Qaida.

Hamdan has been held at Guantanamo since May 2002. The military has not said where he would serve a sentence, but the commander of the detention center, Navy Rear Adm. David Thomas, said last week that convicted prisoners will be held apart from the general detainee population.

Hamdan has already become an iconic figure in American jurisprudence. It was the lawsuit he brought against then Secretary of Defense Donald Rumsfeld in 2006 that resulted in the Supreme Court ruling that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”

Following that ruling – one of several major legal setbacks for the Bush administration – Congress hastily passed the Military Commissions Act of 2006, under which Hamdan was tried.

It is unclear why the government chose a case involving arguably the lowest-level Guantanamo detainee as its first defendant. But legal authorities have speculated that prosecutors saw the Hamdan case as a “test run” for the military commission structure and process. Many of the cases yet to come to trial involve so-called “high value” detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. His case is also far more problematic, since the Bush administration has acknowledged that he was subjected to what it calls “enhanced interrogation techniques,” including waterboarding.

Tuesday, August 05, 2008

Memo To Obama And McCain: Add To Your Do-Do List

By William Fisher

Millions of words have been written and spoken about the politicization of the Department of Justice before, during and after the departure of Alberto Gonzales. But the silence on two of the DOJ’s most toxic practices has been deafening.

One is publicly labeling someone “a person of interest.” The other is wildly exaggerating the seriousness of the charges against a person. Both have been widely and indiscriminately used over the past decade. Both have destroyed people’s lives. Both have contributed to the environment of fear that followed 9/11. Both have been unashamedly exploited for career advancement by prosecutors, and for political gain by zealously loyal Bushies.

And neither has received any serious attention from the media or from the current presidential candidates.

But a new occupant of the Oval Office could and should end these dreadful practices with the stroke of a pen.

What exactly is a “person of interest?” The answer is that nobody knows. And nobody knows because the term has no basis in law. It first rose to prominence when the DOJ applied it to Richard Jewel, the hapless security guard who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta. A bomb exploded there shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. It wasn’t long before the Feds’ attention shifted to the guy who should have been celebrated as a hero.

Jewel was “not accused” of planting a bomb or of anything else. The Clinton Justice Department told the media he was neither a “target” nor a “suspect” – terms customarily used by law enforcement. But he was effectively both. He was relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. And his life was forever damaged, notwithstanding a belated apology from then Attorney General Janet Reno (the FBI never apologized).

Then came Steven Hatfill, the “person of interest” in the deadly 2001 anthrax mailings. In 2002, he was labeled a “person of interest” by then- Attorney General John Ashcroft. Tagged by the FBI, but neither accused nor charged, the Feds hounded this government scientist 24/7 for years. He lost his job and his reputation and became obviously unemployable.
Hatfill sued the DOJ. This summer, he agreed to take $5.82 million and an apology from the government to settle his claim that the DOJ and the FBI invaded his privacy and ruined his career.

Since Jewel and Hatfill, the “person of interest” moniker has metastasized to local and state law enforcement authorities that have used it hundreds of times. And since most ordinary folks lack the resources to fight back against injustice by innuendo, they have no option other than to let the authorities wreck their lives.

Under the DOJ’s own guidelines, prosecutors are allowed to publicly identify a person only they are seeking an interview for a criminal investigation. These guidelines prohibit any other disclosure of a person’s name until formal charges have been brought. Honored in the breach, as they say.

The National Association of Police Chiefs got it absolutely right when they called “person of interest” a "euphemism for a suspect."

So did Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law. He told me: “A 'person of interest' is not an official designation. It is abused. Law enforcement is politics. Those in power use the term to assure the public that they're 'doing something.' Police authorities fear admitting that they literally have no clue who committed a crime.”

He continued: “Unfortunately, these politicians trash lives along the way -- the 'person of interest' is someone against whom there is no real evidence but someone who can be, at least for a time, used, vilified, scapegoated. It's time our law enforcement politicians learn to say 'No comment' and for them to educate the public that very often, especially at the beginning of a case, police have no idea who the perpetrator was, or at least no real evidence. The public should want responsible action (and restraint), not simply action. The media should also cease its complicity in this charade and rigorously question politicians who finger someone as a 'person of interest,' asking what evidence the police have to support their grave allegation. Otherwise, naming someone a 'person of interest' cheaply serves many of the same cynical purposes that 'show trials' serve in totalitarian regimes.”

And Prof. Peter Shane of the University of Ohio Law School. He told me: “The ‘person of interest’ phenomenon is something like the opposite side of the coin from terrorist watch lists. In the name of improving public safety, government authorities want to create some status for suspicious-seeming individuals that would enlarge government's investigative power without triggering the civil liberties protections that go with identifying anyone as an actual criminal ‘suspect’. So far, it is not at all clear how much safety the public is getting out of the shift to a ‘preventive law enforcement’ mentality. There is a substantial risk that we will wind up less free, but actually no safer.”

Well said both!

The Brits have done better. The UK has some of the tightest reporting restrictions in the Western world, limiting the ability of news organizations to publish pictures or articles about the subjects of criminal investigations. The rules are intended to ensure fair trials by keeping potentially prejudicial information out of the hands of would-be jurors. By and large, the cops and the media take this rule very seriously (though some of the tabloids don’t; names too often get leaked and published).

We should pay attention to what law enforcement does and doesn’t allow across the Atlantic. People who are not charged with crimes should remain anonymous. Until they are charged, authorities should merely tell the public – as the British authorities do – that folks in custody are “helping police with their inquiries.”

Hyping charges is arguably an even more egregious practice because it can adversely influence judges and juries.

The poster-boy for this riff is Jose Padilla – the US citizen accused by then Attorney General John Ashcroft of plotting to use a radioactive “dirty bomb” to blow up buildings in America.

Padilla was labeled an “enemy combatant” by President Bush. He was unconstitutionally held largely incommunicado in a US military brig for more than three years until the eve of a ruling from the US Supreme Court. Only then did the DOJ – fearing the Court’s decision would be another legal setback -- transfer him to the custody of the US criminal justice system.

Padilla was charged with membership in a North American terrorist support cell and with conspiracy to murder, kidnap and maim US nationals, and conspiracy to provide material support to terrorists. These are the crimes he was convicted of.

But what of the radioactive dirty bomb? It was nowhere to be found in Padilla’s indictment. Why was it dropped? Because there was no evidence that the DOJ could introduce and support in a court of law. Because it was hype.

But Padilla is far from the only victim of such politically-motivated hype. There’s the case of Dr. Rafil Dhafir, an upstate New York oncologist whose arrest was widely trumpeted by the state’s governor and others as a great victory in the “war on terror.” But when he went on trial in 2005, prosecutors insisted – and the judge agreed – that the word “terror” should be excluded from the courtroom. His attorney accused the government of selective prosecution by singling him out because of his race, religion and cultural background.

Nonetheless, Dhafir was convicted – and sentenced to 22 years in the slammer – mainly for violating the US government’s sanctions against Iraq by sending money for food, clothing and medical supplies through a charity he founded. He is believed to the only US citizen ever to be held in prison for violating the Iraq sanctions, although several humanitarian groups have admitted doing just that.

Then there’s the case of “The Liberty City Seven” – seven Miami residents named for the impoverish area of Miami where they lived. The seven were caught in an FBI sting operation allegedly for pledging loyalty to Al-Qaeda in a plot to blow up the Sears Tower in Chicago. When they were arrested in 2006, law enforcement officials in Washington and Miami called two widely heralded press conferences, where one senior spokesman acknowledged that the terrorist plot was more "aspirational than operational."

Despite the fact that police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot, the seven were tried, not just once, but twice. In both trials, juries failed to reach a verdict on six of the seven (one was acquitted and then deported to his native Haiti).

Want more? Well, there’s Brandon Mayfield, the Oregon lawyer who was held as a “material witness” (another toxic practice) because the FBI said his fingerprints were found on one of the backpacks used to carry explosives used to blow up the trains in Madrid in 2004. The convert to Islam was kept in jail without bond for two weeks, until the FBI had one of its rare oops! moments: It fessed up incorrectly getting Mayfield’s fingerprints confused with someone else’s.

Mayfield got an apology, a $2 million settlement, and the overturning of some provisions of the USA Patriot Act on constitutional grounds when he sued the DOJ.

These cases are, to coin a phrase, only the tip of the iceberg. There are dozens of others in which innocent people have been placed in a deadly legal limbo by the “person of interest” label, or subjected to needless trials or given excessive sentences because of political hype or prosecutorial misconduct.

Cleaning up this mess should be a lot easier than getting Harriet Myers to testify to Congress. Or closing Guantanamo. The Department of Justice makes its own rules for behaving ethically within the Constitution and the laws passed by Congress.

The DOJ can rewrite its rules as easily as it broke them. It needs to make the term “person of interest” off limits for DOJ personnel, including the FBI. And it needs to send a clear message to prosecutors and FBI folks that hyped accusations are not campaign bumper stickers or the newest super-highway to career advancement.

This will require a president with the guts to choose an attorney general who believes in the rule of law and who will not tolerate anything less.

If our next AG has any problem with the above, we’ve elected the wrong president.