Saturday, June 27, 2009

Obama Considering Indefinite Detention?

By William Fisher

As President Barack Obama struggles with the political backlash from a Congress determined to keep Guantanamo terrorism suspects out of the U.S., his administration is reportedly preparing an executive order that would give him authority to hold prisoners indefinitely without trial, according to weekend media reports.

News of the order was reported by The Washington Post and ProPublica, an independent investigative newsroom, and published Saturday by The Post and later by The New York Times. It would involve some 90 Guantanamo detainees who are regarded as “too dangerous to release” but who cannot be tried in U.S. criminal courts because evidence against them was gathered by cooperating foreign intelligence services or because it is tainted by the suspects being subjected to harsh interrogation techniques.

The dilemma of what to do with these suspects is threatening to scuttle Obama’s pledge to close the Guantanamo Bay (GITMO) prison camp by January 2010.

In one of the few truly bipartisan actions recently taken by Congress, lawmakers of both parties and in both the House of Representatives and the Senate – their eyes fixed firmly on the 2010 elections – have expressed overwhelming opposition to bringing GITMO detainees to the U.S., even to stand trial. Amid charges of fear-mongering, they voted earlier this month to deny the administration the money it requested to fund the closure of the iconic prison.

But part of Obama’s dilemma is that an “indefinite detention” regime would channel the position taken by his predecessor, President George W. Bush, and would also threaten to alienate the left-wing of Obama’s Democratic Party, including the human and civil rights communities, which hailed the new president’s decisions to outlaw torture and shutter Guantanamo.

Civil libertarians and many legal scholars were quick to condemn the idea of indefinite detention.

Jonathan Hafetz, a staff attorney with the American Civil Liberties Union, (ACLU), told us, "It would be highly disappointing if President Obama accepted the false proposition that a system of indefinite detention is either necessary or legal. It is neither. The suggestion that the President himself has the prerogative to declare individual enemies and suspend the core protections of the Bill of Rights smacks of the same assertion of sweeping executive power that characterized the last administration and that is antitethical to our basic framework of government."

ACLU National Security Project director Jameel Jaffer told us, "To allow the government to imprison terrorism suspects indefinitely without charge or trial would fundamentally alter the character of American democracy. And a preventive detention system would be a human rights disaster whether based on a statute enacted by Congress or an executive order issued by the President.”

Michael Ratner, president of the Center For Constitutional Rights, a legal advocacy organization that has mobilized dozens of lawyers to represent GITMO detainees, told us, "Prolonged imprisonment without trial is exactly the Guantanamo system that the President promised to shut down. Whatever form it takes – from Congress or the President’s pen – it is anathema to the basic principles of American law and the courts will find it unconstitutional.”

Some Constitutional scholars were equally outspoken. Professor Francis A. Boyle of the University of Illinois law school told us, "The International Covenant on Civil and Political Rights, to which the United States is a party, clearly requires that alleged terrorists be given a trial.”

He added, “Unlike President Bush, President Obama is a lawyer and used to teach Constitutional Law. He must know better. The fact that President Obama and his administration are once again continuing the illegal and totalitarian Bush administration policies does not augur well for the future of our Republic, its Constitution and Bill of Rights, as well as America's commitment to the Rule of Law."

But opposition to the indefinite detention idea was not limited to the Left. Bruce Fein, a well-known Conservative who served in the Department of Justice during the Reagan presidency, told us, "Indefinite detention without accusation or trial is a terrible idea. If the United States government is unable to assemble evidence of guilt (including conspiracy to provide material assistance, which criminalizes even unalarming plots in their embryonic stages) with all its staggering resources devoted to counterterrorism, including huge bounties for informants, then the suspect is probably innocent.”

And Prof. Brian J. Foley of the Boston University School of Law told us, "Indefinite detention based on evidence that cannot be presented in a U.S. court is likely indefinite detention based on unreliable evidence (confessions extracted by torture, hearsay and other un-cross-examined testimony and hunches that may be infected with bias or mistake). Locking up the wrong people will not help us prevent terrorism and indeed might mislead us into believing we have diminished the threat.”

But other observers were more cautious. Prof. David M. Glazier of the Loyola Law School in Los Angeles told us, “It is hard to judge the legality of the Obama Administration proposal because of the vagueness in the reporting. The real legal flaw with Guantanamo is not the concept of indefinite detention, but rather the failure to conform it to the law of war. Confinement in prison cells, coercive interrogation, and even routine shackling of prisoners all violate the law of war.”

According to The Washington Post, "Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order." Such an order could be rescinded and would not block later efforts to write legislation.

But CCR’s Ratner disagrees. He said, " If the last eight years have taught us anything, it’s that executive overreach, left to continue unchecked for many years, has a tendency to harden into precedent."

Nor is this option is not without political risk for Obama; it could anger lawmakers who could see it as an “end-run” around Congressional authority.

Among the few lawmakers publicly opposed to indefinite detention is Wisconsin Democratic Senator Russ Feingold. In a letter to President Obama, he wrote that indefinite detention poses a risk “establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.”

In a May speech at the National Archives, Obama said he was considering indefinite detention for some prisoners. He suggested that it would include congressional and judicial oversight. "We must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone," he said.

In his May speech, the president outlined five strategies the administration would use to deal with them: criminal trials, revamped military tribunals, transfers to other countries, releases, and continued detention.

On the day Obama took office, 242 men were imprisoned at Guantanamo. Since the inauguration, 11 detainees have been released or transferred, one prisoner committed suicide, and one was moved to New York to face terrorism charges in federal court.
Administration officials told The Washington Post that the cases of about half of the remaining 229 detainees have been reviewed for prosecution or release.

The other half of the cases, the officials said, present the greatest difficulty. Attorney General Eric H. Holder Jr. agreed with an assessment offered during congressional testimony this month that fewer than 25 percent of the detainees would be charged in criminal courts and that 50 others have been approved for transfer or release.

Friday, June 26, 2009


By William Fisher

Human rights groups are asking United Nations officials to investigate the case of an Italian citizen and victim of the "extraordinary rendition" program of the U.S. Central Intelligence Agency who is currently being held in a Moroccan prison based on a confession coerced from him through torture.

The American Civil Liberties Union and the Geneva-based Alkarama for Human Rights have requested that two U.N. Special Rapporteurs investigate the circumstances of Abou Elkassim Britel's forced disappearance, rendition, detention and torture, and raise his case with the governments of the United States, Morocco, Pakistan and Italy.

The requests were made to the U.N. Special Rapporteurs on Torture and the on the Promotion and Protection of Human Rights while Countering Terrorism.
"Victims of the 'extraordinary rendition' program detained at Guantánamo and other prisons around the world are being ignored by the U.S. government, whose unlawful program landed them there in the first place," Steven Watt, staff attorney with the ACLU Human Rights Program, told us.

He said, "The U.S. has failed to take responsibility for its most egregious actions, leaving Mr. Britel and countless other victims of the 'extraordinary rendition' program with no choice but to turn to the international community for justice."

Britel, who is also a plaintiff in the ACLU's lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the rendition program, is one of the few victims of the program whose identity is known, and who is still detained outside of Guantánamo Bay.

Britel was initially apprehended and detained in Pakistan by Pakistani authorities on alleged immigration violations in February 2002. After a period of detention and interrogation there, he was handed over to U.S. officials.

The ACLU charges that in May 2002, U.S. officials stripped and beat Britel before dressing him in a diaper and overalls, shackling and blindfolding him and flying him to Morocco for detention and interrogation. Once in Morocco, they say U.S. officials handed him over to Moroccan intelligence officials who detained him incommunicado at the Temara detention center, where he was interrogated, beaten, deprived of sleep and food and threatened with sexual torture.

Britel was released from custody by Moroccan authorities in February 2003, but was again arrested and detained in May 2003 as he attempted to leave Morocco for his home in Italy. While detained incommunicado in the same detention facility where he had been tortured months earlier, Britel falsely confessed under torture to his involvement in terrorism. He was later tried and convicted by a Moroccan court on terrorism-related charges and is currently serving a nine-year sentence in a Moroccan prison.

In 2006, an Italian investigating judge dismissed a six-year long investigation into Britel's alleged involvement in terrorism after the judge found a complete lack of evidence linking him with any terrorist-related or criminal activity.

In a related development, the U.N.'s top human rights advocate, Navanethem Pillay, this week called on the Obama administration to release Guantanamo Bay inmates or try them in a court of law.

The U.N. High Commissioner for Human Rights said that officials who authorized the use of torture must be held accountable for their crimes. She called for a probe into officials who participated in torture sessions or provided its legal justification.

The South African lawyer was also critical of President Obama's decision to hold some suspected terrorists in detention indefinitely without trial.

"People who order or inflict torture cannot be exonerated, and the roles of certain lawyers, as well as doctors who have attended torture sessions, should also be scrutinized," she said.

While praising the Obama administration for banning many of the harshest interrogation techniques, she said it needed to go further, providing victims of U.S. abuses with an opportunity to rebuild their lives.

"I believe we are finally starting to turn the page on this extremely
unfortunate chapter of recent history, with counter-terrorism measures starting to move back in to line with international human rights standards," Pillay said.

"But there is still much to do before the Guantanamo chapter is truly brought to a close."

Pillay’s remarks challenged Obama's decision to limit investigation into past abuses and to continue to hold some detainees who have not been charged with a crime. In May, Obama said some detainees deemed too dangerous to release might have to be held indefinitely.

"There should be no half-measures, or new creative ways to treat people as criminals when they have not been found guilty of any crime," Pillay said.

"Guantanamo showed that torture and unlawful forms of detention can all too easily creep back in to practice during times of stress, and there is still a long way to go before the moral high ground lost since 9/11 can be fully reclaimed."

But Pillay did not address the Obama administration's decision to use reformed military commissions to try suspected terrorists. Human rights groups have criticized the commissions, particularly that terror suspects could be convicted and executed based on evidence obtained by torture.

Pillay said that detainees who are not prosecuted and potentially face torture if they are sent back to their own countries "must be given a new home, where they can start to build a new life, in the United States or elsewhere. I welcome the fact that in recent weeks a number of countries have agreed to take in a few people in this position, and urge others to follow suit, including first and foremost the United States itself."

Earlier this month, the first Guantanamo detainee, Ahmed Ghailani, was flown to the United States to face death-pentalty charges for his alleged role in the 1998 bombing of two U.S. embassies in East Africa. He is in custody in New York City.

But huge majorities of both Republican and Democratic lawmakers have resisted allowing any more of the remaining 229 detainees at Guantanamo into the United States. Republicans, in particular, have said they do not want GITMO detainees “wandering around in their neighborhgoods.”

As a result, the Senate voted 90 to 6 in May to withhold funding for the closure of Guantanamo until the Obama Administration submits a plan for doing so.

Pillay was also highly critical of the administration of George W. Bush. She charged that the Bush administration’s counterterrorism policies had undermined international efforts to end torture. "The terrorist acts that shook the world on 11 September 2001 had a devastating impact on the fight to eliminate torture," she wrote. "Some states that had previously been careful not to practice or condone torture became less scrupulous."

Pillay called for "leadership” to end “this grotesque practice." She welcomed Obama's decision to close Guantanamo by next January and to ban waterboarding and other extreme interrogation techniques.

"Equally importantly, victims of torture must be helped to recover from one of the worst ordeals that a human being can face. The physical and mental scars of torture are excruciating, the effect on families devastating, and there are often long-term socio-economic effects, including a stigma that can be extremely hard to erase. Victims of torture must be compensated and cared for -- for as long as it takes to enable them once again to lead a relatively normal life," she said.


By William Fisher

An investigation by the British Broadcasting Corporation (BBC) has revealed that former detainees at the U.S. Bagram airbase in Afghanistan were beaten, deprived of sleep, and threatened with dogs.

The BBC’s conclusions are based on interviews with 27 former detainees who were held at Bagram between 2002 and 2006. None of these men were ever charged with a crime. Hundreds of detainees are still being held in U.S. custody at the Afghan prison without charge or trial.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, told us, "The BBC investigation provides further confirmation of the United States' mistreatment of prisoners at Bagram. These abuses are the direct consequence of decisions made at the highest levels of the U.S. government to avoid the Geneva Convention and forsake the rule of law. For too long, the unlawful detention and mistreatment of prisoners at Bagram has gone on outside the public eye. Hopefully, this investigation will help change that."

"When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake," he said, adding:

"Torture and abuse at Bagram is further evidence that prisoner abuse in U.S. custody was systemic, not aberrational, and originated at the highest levels of government. We must learn the truth about what went wrong, hold the proper people accountable and make sure these failed policies are not continued or repeated."

In April, the ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the detention and treatment of prisoners held at Bagram, including the number of people currently detained, their names, citizenship, place of capture and length of detention. The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."

"The U.S. government's detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy," said Melissa Goodman, an ACLU staff attorney. "The American people have a right to know what's happening at Bagram and whether prisoners have been tortured there."

Amnesty International said it was 'shocked' by the Bagram claims. It noted that a new detention center is currently under construction at the camp.

Another prominent human rights organization, the U.K.-based Reprieve, called on the British Government to take action concerning two Pakistanis who it says the U.K. helped render there from Iraq.

“The legal black hole in Bagram underlines the British government’s moral black hole when it comes to rendering two Pakistani prisoners there in 2004,” said Clive Stafford Smith, Director of Reprieve. “These men were in British custody in Iraq, were turned over to the U.S., and have now been held for five years without any respect for their legal rights.”

In February 2009, British Defense Secretary John Hutton announced to the House of Commons that Britain had handed two anonymous Pakistani men over to the U.S., and they had subsequently been rendered to Afghanistan, where they were still being held. “We have been assured that are held in a humane, safe and secure environment, meeting international standards consistent with cultural and religious norms,” Hutton said at the time.

“As we have said all along, beating people and holding them incommunicado is not humane, safe and secure,” Stafford Smith told us. “Britain has a moral duty to identify these men, so that we can reunite them with their legal rights, yet Mr. Hutton refuses to do this.”

No prisoner in Bagram has been allowed to see a lawyer, or challenge his detention. According to the BBC, the U.S. justice department argues that because Afghanistan is an active combat zone it is not possible to conduct rigorous inquiries into individual cases and that it would divert precious military resources at a crucial time.

“These men were never in Afghanistan until the UK and the US took them there,” said Stafford Smith. “It is the height of hypocrisy to take someone to Bagram and then claim that it is too dangerous to let them see a lawyer. Even Guantánamo Bay is better than this.”

The Pentagon has denied the BBC’s charges of harsh treatment and insisted that all inmates in the facility are treated humanely.

The Bagram Airbase built by the Soviet military in the 1980s. The approximately 600 people held there are classified as "unlawful enemy combatants.' None was charged with any offence or put on trial -- some even received apologies when they were released.

Many allegations of ill-treatment appear repeatedly in the BBC interviews: physical abuse, the use of stress positions, excessive heat or cold, unbearably loud noise, being forced to remove clothes in front of female soldiers.

In four cases detainees were threatened with death at gunpoint.

"They did things that you would not do against animals let alone to humans," said one inmate.

"They poured cold water on you in winter and hot water in summer. They used dogs against us. They put a pistol or a gun to your head and threatened you with death," he said.

"They put some kind of medicine in the juice or water to make you sleepless and then they would interrogate you."

The BBC said its findings were shown to the Pentagon. Lt Col Mark Wright, a spokesman for the US Secretary of Defense, insisted that conditions at Bagram "meet international standards for care and custody". He said the US Defense Department has a policy of treating detainees humanely.

But he acknowledged that "There have been well-documented instances where that policy was not followed, and service members have been held accountable for their actions in those cases."

Since coming to office, US President Barack Obama has banned the use of torture and ordered a review of policy on detainees, which is expected to report next month. But unlike its detainees at the US naval facility at Guantanamo Bay in Cuba, the prisoners at Bagram have no access to lawyers and they cannot challenge their detention.

Tuesday, June 23, 2009

The Health Care Chamber of Horrors: Choose Your Bureaucrat!

By William Fisher

With their principles firmly focused on the 2010 elections, and juicy campaign contributions from the so-called health care industry, Republicans and some potentially endangered Democrats are furiously fulminating about “socialized medicine” and government bureaucrats who will “ration your health care” and “get between you and your doctor.”

Can Harry and Louise be far behind?

Well, government is not the only place where bureaucrats work. They are ubiquitous in those wonderful companies we pay to bring us our health insurance policies.

They aren’t big on “socialized medicine” – though not even economists dispute that universal health care is a social good.
But they’re regularly rewarded for rationing your health care and getting between you and your doctor.

Consider this mini-chamber of horrors, culled from a recent and highly dramatic House hearing chaired by Rep. Henry Waxman of California.

Robin Beaton, 59, found out last June she had an aggressive form of breast cancer and needed surgery -- immediately. But just days before her double mastectomy, she found out that her insurance provider would not cover the procedure. (In the industry, they call it “rescission.”) Why rescission? ?

In May 2008, Beaton had visited a dermatologist for acne. A word written on her chart was interpreted to mean precancerous, so the insurance company decided to launch an investigation into her medical history.

Beaton's dermatologist begged her insurance provider to go ahead with the surgery.

"He said, 'This is a misunderstanding. This is not precancerous. All she has is acne.” Still, the insurance carrier decided to rescind her coverage. The company said it had reviewed her medical records and found out that she had misinformed them about some of her medical history.

Beaton had listed her weight incorrectly. She also didn't disclose medication she had taken for a pre-existing heart condition -- medicine she wasn't taking when she originally applied for coverage.

Another witness, Wittney Horton, said her coverage was canceled after her carrier said she did not disclose that she had taken a drug prescribed for weight loss and because of her irregular menstrual cycle. Her carrier sent her a letter saying they would not have accepted her had they known she had "polycystic ovaries," a condition she did not know she had.

And Peggy Raddatz testified on behalf of her late brother, who was diagnosed with stage four non-Hodgkin's type lymphoma. In the midst of his chemotherapy treatment, his coverage was cancelled and he was not able to receive the stem cell transplant needed to save his life.

Raddatz's brother was told his coverage was canceled for failing to disclose that, unknown to him, a doctor had once noted in his file that a CT scan showed a small aneurysm and some insignificant gallstones.

These are but a few of the thousands of people who thought their premiums entitled them to be treated. And if you think these are extraordinary cases, consider this:

Blue Cross of California, a subsidiary of WellPoint, encouraged employees through performance evaluations to cancel the health insurance policies of individuals with expensive illnesses. One Blue Cross employee earned a perfect score of "5" for "exceptional performance" on an evaluation that noted the employee's role in dropping thousands of policyholders and avoiding nearly $10 million worth of medical care.

Blue Cross of California and two other insurers saved more than $300 million in medical claims by canceling more than 20,000 sick policyholders over a five-year period.

(Note to media watchers: When CNN reported this hearing, it conveniently ignored an inconvenient truth: the names of the errant insurers. Thanks to Karen Tumulty of TIME, we now know who they are: Wittney Horton and Robin Beaton were insured by Blue Cross. Peggy Raddatz’s brother, Otto, was insured by Fortis Insurance Company. Also, this riveting hearing got no airtime on the TV networks, nor did it appear in The New York Times or The Washington Post.)

At the risk of inviting my own “recission,” I invite you to examine my own health insurance history. I have several chronic ailments. But, over the last 15 years, Medicare – yes, that awful “socialized medicine” plan – has never denied me the treatment I needed. Ditto my Medigap insurance, purchased through AARP.

Bureaucrats abound in both the public and private sectors, and Lord knows, Medicare has more than its share of warts (is that a pre-existing condition?).

But, given my druthers, I’ll choose what’s now being called the public option.

It’s worth remembering that, through our votes and our letters and phone calls to our representatives in Congress, we have at least a fair shot at managing the public bureaucrats. The private sector is accountable only to the bottom line and the great invisible hand of the market.

Maybe you’d like to let the market perform your next surgery?

Monday, June 22, 2009

Obama: Whither Transparency?

By William Fisher

Human rights and open-government advocates were heartened by President Barack Obama’s pledge during his first week in office to create “an unprecedented level of openness in Government” and “establish a system of transparency, public participation, and collaboration.”

But now, well into Obama’s second 100 days in office, many are expressing outrage and disappointment that many of the president’s decisions have followed the path of his predecessor, President George W. Bush.

The Obama administration has invoked the "state secrets" privilege several times to prevent lawsuits dealing with “extraordinary renditions” and warrantless wiretapping from ever being heard in court. Department of Justice (DOJ) lawyers have argued that detainees at Bagram Air Force base in Afghanistan have no right to challenge their detention.

The government has also caved to Democrats and Republicans in Congress to keep any of the Guantanamo Bay detainees from ever entering the U.S., even though the Defense Department (DOD) has cleared these men for release and declared that they present no threat to U.S. national security. Reliable reports suggest that Obama is considering “indefinite detention” for GITMO detainees who cannot be tried in U.S. courts because the evidence against them was obtained through torture. The government has gone to court to appeal a court ruling ordering the release of a 2004 report from the Inspector General of the Central Intelligence Agency (CIA) describing the harsh treatment of prisoners in the agency’s secret prisons. And the new president has refused to make public photographs reportedly depicting abusive interrogations at these and other government detention centers.

Obama recently rejected a Freedom of Information Act (FOIA) request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies because the disclosure of such records might impinge on privileged "presidential communications."

On the issue of electronic surveillance, the new president has not repudiated the Bush-era executive orders supporting warrantless wiretapping and the legal opinions used to support them. Obama has resisted a “truth commission” to investigate former officials who allegedly broke the law and committed crimes, saying he would rather look forward than back.

Government lawyers asked a federal judge to dismiss a lawsuit brought on behalf of a couple who were placed on a terrorist watch list. And when watchdog group Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request to the Justice Department seeking records related to former vice president Dick Cheney's interview with the Federal Bureau of Investigation (FBI) in the “outing” of CIA operative Valerie Plame, the Justice Department declined to turn over the records.

Our interviews with human rights and open-government advocates produced few explanations of the president’s actions, beyond calls for him to live up to his promises.

But a few have offered insights as to the “why” of what they see as Obama’s U-Turn. Among them is Professor Francis A. Boyle of the University of Illinois law school. He told IPS, “After winning the Democratic Party against Senator Clinton by appealing to its progressive wing, Obama immediately veered far to the right and co-opted all of the Clinton people into his campaign and then administration. So what we are seeing now is a Third Clinton Term with a continuation of many of the same foreign and domestic policies pursued by the Bush Jr. administration.”

He added, “This has little to do with personnel and personalities. It has to do structurally with the preservation and further extension of the American Empire abroad that necessarily requires the further consolidation of an American Police State at home. Hence the Obama administration has continued to ratify the illegal and unconstitutional policies of the Bush administration in court cases across the board, while escalating the Bush admistration's imperialist intervention into Afghanistan and now expanding it into Pakistan.”

Another explanation came from Michael Ratner, president of the Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to represent Guantanamo prisoners.

He asked rhetorically in response to an IPS reporter’s question,
“Why did Obama make promises about less secrecy, transparency and a narrowed state secrets privilege and proceed to have his administration assert positions and back legislation that was directly contrary to those promises? In the U.S., we complain about Chile hiding the crimes of the Pinochet regime, or Germany hiding the Nazi crimes or Russia the crimes of the KGB, yet where is the screaming when President Obama hides the war crimes of the Bush administration?”

His answer: “In part, the recent blatant assertions of secrecy are to hide crimes of former and some current officials. That is why President Obama is keeping the torture photos hidden. That is why he is continuing to assert broad state secret claims to try and hide the rendition program. That is why the 2004 CIA report on the secret site interrogations will be released with heavy redactions. Not only would the photos and documents implicate the Bushies, but remember some of those abuses were apparently committed by units under the command of the recently appointed commander in Afghanistan, General (Stanley) McChrystal. Some of the crimes were allegedly approved or committed by the current Deputy Director of the CIA, Stephen Kappes, who is keeping his job.”

“Release of the torture and abuse information and especially the photos would put incredible pressure on President Obama to actually hold accountable the torture team. This is not something he wants to do. He wants to ‘move on’, but he will never be able to ‘look forward’ to the future without torture until and unless the perpetrators of torture are punished,” he declared.

Chip Pitts of the Bill of Rights Defense Committee offers another perspective. He told IPS, ““There are undoubtedly elements of truth in each of the theories – or excuses – I’ve imagined or heard for the president’s broken January promise.”

“But the hedging and retaining litigation and other exceptions, instead of restoring the full presumption of transparency and openness in interpreting FOIA, are as disappointing as the hedging and retaining exceptions on other core planks of the rule of law, such as the prohibition on torture, military commissions, preventive detention, and maintaining ubiquitous surveillance.”

He added, “The free information flows and social networking technologies in the Iranian protests are only the latest indication of transparency’s new historical power. Obama himself recognized in that context the new meaning for Martin Luther King’s injunction that “the arc of the moral universe is long, but bends toward justice.”

“Obama would be better-advised to be on the right side of that history than on the side of darkness and cover-up,” he said.

A more hopeful note comes from Peter M Shane, a law professor at Ohio State University. He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”

But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”

How the new administration will ultimately resolve its conflicts between secrecy and open government remains to be seen. But, as President Obama said over the weekend in relation to the current Iranian conflict, “the world is watching.”

Thursday, June 18, 2009

A ‘Must Read’ for the Book Czar

By William Fisher

Since the Obama Administration now has czars for cars, information technology, bonuses, financial products, et cetera, can a book czar be far behind?

Well, here’s a memo for the inbox of our book czar (or czarina) to-be. It’s about a slender volume that I want our new book czar/czarina to mandate as a “must read’ for every American from middle school to grad school and way beyond.

The book is titled “Madison’s Nightmare: How Executive Power Threatens American Democracy.” Its author is Peter M. Shane, a law professor at Ohio State University.

Understanding why Madison is having nightmares is a tall order for a country where a large majority of citizens is unable to name the three branches of their government. Where we are clueless about separation of powers. And about checks and balances. And where courses we once used to call Civics are now landfill in our academic graveyards.

But if we care about the future of America, we all need to understand what’s been happening to our unique form of government over the past decades.

Peter Shane writes in compelling non-lawyerish commonsense prose about how ambitious assertions of presidential power are the logical outcome of a decades-long trend that started with Ronald Reagan and George H.W. Bush, continued under Bill Clinton, and culminated most spectacularly under the “unitary executive” doctrine embraced by the George W. Bush administration.

What Shane calls “aggressive presidentialism” has seen presidents of both parties waging an assault on the basic checks and balances of the U.S. government that has diminished the role of the other branches of government – all too often with their supine acquiescence -- and led to ideological, inappropriate, and sometimes downright illegal actions.

Prof. Shane tells us why this trend is giving James Madison such nightmares. He writes: “At the heart of our founders’ design for a new republican form of government is a web of political institutions structured to hold each other accountable.” One-branch governmnent holds only one branch accountable – and accountable only to itself.

“Time and time again,” Shane writes, “it has become evident that presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously.”

And even those of us who may be historically challenged can see the results of that disastrous behavior in the wreckage that currently litters our constitutional landscape.

“If we want our government to work as the Founders intended, simply electing a new president is not enough: both liberals and conservatives must launch a wide-ranging reform effort that will change all levels of government and support a renewed culture of accountability.”

Prof. Shane finished writing this book before Barack Obama’s first day in the Oval Office. But in a more recent article – “The Ambivalent Presidency? Executive Power Under the Obama Administration” – he tells us where he thinks our new president stands in relation to his predecessors.

He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”

But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”

He writes:“Though he campaigned on a theme of change, in his first months in office, Barack Obama has already asserted inherent presidential power in ways reminiscent of his Republican predecessors. While abandoning some of the Bush Administration’s more audacious claims, President Obama has asserted the state secrets privilege in national security litigation, resisted judicial review of enemy combatant detention in Afghanistan, issued signing statements suggesting constitutional reservations about bills he has signed into law, and pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.”

On the other hand, he notes, “President Obama revoked President Bush’s obnoxious executive order on presidential records, which seemed to invent the idea of vice-presidential privilege from whole cloth and purported to allow family members of former Presidents to claim privilege in their name. He implicitly revoked the Bush Administration’s restrictive view of the Freedom of Information Act, and famously released Bush-era OLC memoranda on torture. The Obama order on military interrogations reasserts the applicability of congressional restrictions to the conduct and conditions of military detention.”

But he also senses Obama’s ambivalence. For example, he writes, “Within his first two weeks in office, President Obama pointedly revoked two Bush Administration executive orders that tightened White House oversight of regulatory policy making by executive branch agencies. In March, however, OMB Director Peter Orszag issued a memorandum reclaiming much of the authority the Obama order seemed to repudiate.”

And On March 9, “President Obama issued a presidential memorandum pledging restraint in the use of so-called signing statements. Within weeks, he issued two such statements of his own.”

But despite these moments of ambivalence, Shane writes, he remains “hopeful that the Obama Administration will turn its back with increasing clarity on the theory and practice of the ‘unitary presidency’.”

If that happens, Madison’s Nightmare – and ours -- may be over.

Let us read!

Monday, June 01, 2009

Obama DOJ Channeling Bush

By William Fisher

Despite President Barack Obama’s formation of a new task force to review government secrecy, and an ongoing investigation into use of the so-called “state secrets doctrine,” lawyers for the new Administration refused last week to disclose information on the government’s use of warrantless wiretaps and backed legislation to block the release of photos of prisoner abuse in Iraq and Afghanistan.

Last week, Obama announced the formation of a task force to review government classification policies, proposing the creation of a National Declassification Center to facilitate public disclosure of once-secret information.

The president reaffirmed his commitment " to operating with an unprecedented level of openness."

But the next day, Department of Justice (DOJ) lawyers filed notice of the government’s intention to challenge in the Supreme Court a New York federal appeals court ruling ordering the administration to make public the photographs allegedly depicting the abuse of terrorism suspects in U.S. custody.

The American Civil Liberties Union (ACLU) had filed a Freedom of Information Act (FOIA) suit to force their disclosure. A federal court judge agreed and ordered the government to release the photos. President Obama initially indicated he would comply with the court’s order but later changed his mind, saying that release of the photos might risk the lives of U.S. armed forces personnel.

At the same time, the DOJ told the court that a formal appeal by a June 9 deadline could be unnecessary if Congress quickly passes the Detainee Photographic Records Protection Act of 2009.

That measure is supported by the White House and was passed by the Senate on May 2. It would forbid disclosure of photographs taken between Sept. 11, 2001, and Jan. 22, 2009, "relating to the treatment of individuals engaged, captured, or detained after September 11, 2001,” by U.S. Armed Forces in operations outside the U.S. if “the defense secretary and the chairman of the Joint Chiefs of Staff have determined would endanger military personnel if released.”

Earlier this year Obama Attorney General Eric Holder rescinded Bush-era FOIA guidelines and replaced them with new rules to preserve FOIA's purpose of making public important information about the workings of the government.

In the wiretapping case, lawyers for a now-defunct Saudi charity claim they were victims of electronic spying by the government. A federal judge ordered the Obama administration to disclose documents relating to that charge The wiretapping allegedly took place as part of the so-called “terrorist surveillance program,” which was initiated by President George W. Bush following the 2001 terrorist attacks.

The DOJ, responding to a federal judge’s inquiry into whether the administration should be sanctioned for “failing to obey the court’s orders,” refused to turn over the documents and asked the court for permission to appeal its decision.

It urged the court to permit appellate review over the fundamental and significant separation of powers questions presented before any disclosure or risk of disclosure in further proceedings,” Anthony Coppolino, the DOJ’s special litigation counsel, wrote to Federal Circuit Court Judge Vaughn Walker.

A DOJ spokesman said sanctions were unwarranted because only the government can decide whether to disclose documents it believes are state secrets.

The lawsuit was brought in San Francisco by two American lawyers who claim their telephone calls were illegally intercepted by the National Security Agency (NSA) under the Bush administration. The lawyers represent the Al-Haramain Islamic Foundation, a charity that the Treasury Department claims was linked to terrorism.

Jon Eisenberg, the attorney for the two American lawyers, told Judge Walker at the time that the purpose of the lawsuit was to “obtain an adjudication of the legality of President George W. Bush’s warrantless electronic surveillance program and, more broadly, the Bush administration’s expansive theories of presidential power.”

Bush claimed that his war powers gave him the authority to eavesdrop on Americans’ electronic communications without warrants.

Eisenberg told us, “The DOJ attorneys repeat all the same arguments that Judge Walker has already rejected. They're treating Judge Walker as if he were irrelevant.”

The San Francisco lawsuit began when the government accidentally sent the plaintiffs documents that showed their overseas communications with Al-Haramain officials were intercepted without warrants. The pair sued, but was forced to return the documents because they were marked “top secret.”

In the Al-Haramain case, the Bush Administration’s Treasury Department found that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.

The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.

But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.

Al-Haramain’s lawyers said they needed the classified documents to represent their clients. They said they were surprised to see the Obama administration arguing so vigorously for the same expansive Bush-era view of executive power.

Al-Haramain lawyer Eisenberg told us, “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”

“They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”

“In three years of litigating this case,” Eisenberg added, I'd come to expect this sort of thing from the Bush Department of Justice, but I'm astounded to see the new Obama DOJ continuing down the same path. So far, at least, we're not seeing any ‘change we can believe in’ regarding presidential abuse of the state secrets privilege.

Obama has ordered a DOJ task force to study the government’s use of the state secrets privilege. The Administration of George W. Bush invoked the privilege more than any other government in U.S. history.

In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons without first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the NSA to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."