Friday, July 31, 2009

Federal Judge Rules "Enough!"

By William Fisher

One of Guantanamo’s youngest prisoners, ordered by a federal judge to be released after almost seven years in detention because his “confession” was obtained through torture, may face further hurdles before being set free.

A federal judge yesterday ordered the government to release Mohammed Jawad, who was reportedly 12-14 years old when he was captured in Afghanistan in 2001. But the Department of Justice (DOJ) said it had new eyewitness testimony of his guilt and was considering filing civilian criminal charges against him.

If they move forward with this prosecution, Jawad would probably be transferred to the U.S. for trial. If not, he would be repatriated to Afghanistan, as requested by the Afghan government, which has indicated that it is prepared to receive him immediately and unconditionally.

Declaring that “Enough has been imposed on this young man to date,” U.S. District Judge Ellen Segal Huvelle ordered the Justice Department to inform Congress of its plans for returning Jawad to Afghanistan by August 6, and to produce a report on the status of his repatriation by August 24. That order is intended to comply with new notification rules recently enacted by Congress, which is fearful of bringing Guantanamo prisoners into the continental U.S.

But criminal prosecution “is a very real possibility,” a Justice Department official told The New York Times, adding, “Whether we can compile enough evidence to support a case is a question we don’t yet know the answer to.”

Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court challenges to any effort by the administration to move his client to the United States to face charges.

And one of Jawad’s civilian lawyers, Jonathan Hafetz, a staff attorney with the American Civil Liberties Union (ACLU) told us, "Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him. We are pleased that the Justice Department has expressed a commitment to getting him home so that this injustice can finally come to an end."

He added, “We have every reason to believe that his nightmare of abuse is over and that Mr. Jawad will soon be back home with his family in Afghanistan. We have been working with the Afghan government and are confident he will not be mistreated when he is sent home.”

Judge Huvelle criticized both the Bush and Obama administrations for their “continuing pattern” of delay. She also said a criminal prosecution would be difficult because Jawad was denied his right to a speedy trial and because his treatment at Guantánamo was more severe than juvenile defendants would face in the U.S.

Huvelle said that while she had no authority to prevent a criminal indictment, she suggested that prosecutors approach this move with caution because of the many problems with the case, including Jawad's mental competency to stand trial and the fact that he has already been incarcerated for 6-plus years.

"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."

Jawad was arrested by Afghan police in December 2002 for allegedly throwing a grenade into a vehicle, wounding two American soldiers and their Afghan interpreter.

While Jawad confessed that he had committed the crime, he told U.S. officials that he did so only because his captors had tortured him. Under President Obama’s new rules for detainees, that would make the evidence against him unusable.

The U.S. Supreme Court ruled 13 months ago that Guantanamo prisoners could bring habeas corpus actions before federal judges to challenge their confinements. Since then, almost all the 241 prisoners still confined there have filed such motions and, of the cases heard to date, 28 have been successful. But of these, 19 men are still being detained, largely because the U.S. cannot find countries willing to receive them.

While the DOJ says it has "newly available evidence" of Jawad's guilt, it says it is not seeking more time to investigate. It says the effort to make a criminal case against Jawad is proceeding separate and apart from his habeas case.

Following his arrest, Jawad was imprisoned at Bagram Airbase in Afghanistan, and then shipped to Guantanamo. During his detention there, he says he was subjected to sleep deprivation.

His military attorney cites records indicating that Jawad was one of GITMO’s “frequent flyers” – prisoners abused by being repeatedly moved from cell to cell. According to the legal advocacy group Human Rights First, Jawad was transferred "from cell to cell 112 times over a two-week period, shackling, moving and unshackling him on average every two hours and fifty minutes. The group also noted that Jawad had attempted suicide several months earlier.

The ACLU says that Jawad is one of two Guantanamo prisoners the U.S. "has charged with war crimes for acts allegedly committed as juveniles.” Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld – who resigned in protest to the military commissions set up to try Guantanamo detainees -- has said that there is “no credible evidence or legal basis to justify Jawad's detention and prosecution, and that his release presents no risk."

Jawad has recently been moved to GITMO’s Camp Iguana, now home to many detainees cleared by the U.S. for release. There, officials say, he has "relative freedom of movement and opportunities for not only education, but also social interaction, physical exercise and recreational activities.”

They describe Camp Iguana as “a communal camp with wooden, hut-like living structures, which provide freedom to move about from different buildings designated for housing, prayer, library, laundry facilities, shower/bathroom, outdoor recreation, and lounge areas. Detainees also have free access to satellite television, books, newspapers, magazines, handheld games, puzzles, and art supplies."

In another habeas corpus action, a second federal judge ordered a detainee released because of the government’s lack of evidence against him. Judge Colleen Kollar-Kotelly said that Kuwaiti citizen Khalid al Mutairi should be released as soon as arrangements can be made with a country willing to accept him and the government meets the new congressional notification requirements. A spokeswoman told media that the DOJ is reviewing the ruling.

Kuwait has been seeking Mutairi's release for some years. He was arrested in Pakistan in 2001. His lawyers say he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. But the U.S. military describes him as a "hard-core extremist," who had been associated with al Qaida and the al Wafa fund, which the U.S. has designated as a terrorist organization.

Habeas corpus, often referred to as "The Great Writ", has been seen as the citizen's principal protection against the power of the state since the time of the Magna Carta. In Latin, it means, "You (shall) have the body."

Saturday, July 25, 2009


By William Fisher

A federal judge last week excoriated government lawyers for advocating the continued detention of a detainee at Guantanamo Bay after his “confession” was ruled inadmissible because it was extracted through torture.

Calling the case “an outrage,” U.S. District Judge Ellen Segal Huvelle urged the lawyers to “let him out. Send him back to Afghanistan.”

She also questioned the Justice Department’s (DOJ) ability to produce any evidence to justify a trial to determine whether the detainee, Mohammed Jawad, could be held as an enemy combatant.

Jawad was arrested in Afghanistan in 2002 for allegedly throwing a grenade at two U.S. soldiers and their interpreter. He was first imprisoned at Bagram Air Force base, and then illegally rendered to Guantanamo (GITMO).

According to his lawyers, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. Eventually, he tried to commit suicide in his cell by slamming his head repeatedly against the wall.

The Afghan government recently asked the U.S. government to return Jawed and suggested he was as young as 12 when he was captured.

The judge was particularly harsh in her criticism of the U.S. government’s case.

Among her comments: “Seven years and this case is riddled with holes…This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there…Your case has been gutted…The case is in shambles…This case is riddled with holes...The United States Government knows it is lousy…This is a case that's been screaming to everybody for years…This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?”

She concluded: “The time has come to face the music...for seven years the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…It is not fair to keep dragging this out for no good reason...We're not going to wait and wait until you come up with another piece of evidence…This case is an outrage to me…There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win.”

The judge denied the government’s request for a delay in Jawad’s habeas corpus hearing, but gave the lawyers until later in August to produce new evidence.

DOJ lawyers have indicated they may decide to bring Jawad to the U.S. for a criminal trial. They asked Judge Huvelle not to release Jawad until criminal investigators can review the allegations against him. Attorney General Eric Holder has ordered that investigation to be put on an “expedited” basis.

Jonathan Hafetz of the American Civil Liberties Union, one of Jawad’s lawyers, said he did not believe the government could come up with new evidence to support Jawad’s trial in a federal court.

He told us, “It is troubling that after admitting it tortured Jawad and illegally imprisoned him for nearly seven years, the government is not sending him home to Afghanistan right away, as law and justice demand, but is considering prolonging is unlawful imprisonment. We expect that, upon review, the Justice Department will conclude, as it must, that there is no credible or reliable evidence against Jawad, and end this travesty.”

We also discussed the case via email with Jawad’s military defense counsel, Major David Frakt. He said it was “disappointing that the Justice Department has not yet been able to conclude the review that President Obama ordered his first week in office.” However, he added, “As the government has now conceded, there is no legal basis to detain Mr. Jawad under the law of war, so he must be repatriated immediately to Afghanistan. The Afghan government has requested Mr. Jawad to be returned, and he is eager to be reunited with his family. Eighty months in illegal detention is enough.”

On July 1, the ACLU filed a motion to suppress Jawad’s statements, and the Justice Department said it would not oppose that motion. The judge in Jawad’s military commission trial had previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture.

According to Jawad’s lawyers, following his arrest, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. At Guantanamo, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.

The lead military prosecutor in Jawad’s Military Commission case, Lt. Col. Darrel Vandeveld, resigned in 2008, charging that “There is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”

Vandeveld said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including material that might be helpful to the defense.

He said the absence of such evidence would likely lead to their being wrongly convicted. Testifying that he went from being a "true believer to someone who felt truly deceived" by the tribunals, he said the system in place at the U.S. military facility in Cuba was dysfunctional and deprived the accused of “basic due process.”

Three other military commission prosecutors have resigned under protest, raising questions about the fairness of the system.

During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention center within a year. He also set up task forces to review the case of each detainee still being held there and to make recommendations regarding their future disposition.

There are currently 241 prisoners at the Cuban base. More than 800 have been detained at the base since 2001. More than 500 have been released. While a few have been released recently, the Obama administration – like its predecessor – has had difficulty finding countries willing to accept prisoners classified by U.S. officials as safe to release.

That process has been made more difficult by the unwillingness of Congress to accept any detainees for resettlement in the U.S. Lawmakers have even opposed bringing GITMO prisoners to the U.S. for trials in federal courts.

Currently the administration’s task forces are working on plans to modify the military commissions to afford defendants more due process, and also considering what to with detainees it says cannot be tried but who are too dangerous to release. Human rights advocates have objected to both solutions.

Thursday, July 16, 2009

Afghan Massacre: More Bad Apples?

By William Fisher

A prominent human rights group is calling on the U.S. Department of Justice to investigate why the administration of former President George W. Bush blocked three different probes into war crimes in Afghanistan where as many as 2,000 surrendered Taliban fighters were reportedly suffocated in container trucks and then buried in a mass grave by Afghan forces operating jointly with American forces.

Physicians for Human Rights (PHR), the Boston-based group that discovered the mass gravesite in 2002, has issued the call for the criminal probe. The organization says U.S. government documents it has obtained show that the bodies were reportedly buried in mass graves in the Dasht-e-Leili desert near Sheberghan, Afghanistan. It charges that Afghan warlord General Abdul Rashid Dostum, who it says was on the payroll of the U.S. Central Intelligence Agency (CIA), was responsible for the massacre.

“Physicians for Human Rights went to investigate inhumane conditions at a prison in northern Afghanistan, but what we found was much worse,” stated Susannah Sirkin, PHR’s Deputy Director. “Our researchers documented an apparent mass grave site with reportedly thousands of bodies of captured prisoners who were suffocated to death in trucks. That was 2002; seven years later, we still seek answers about what exactly happened and who was involved.”

PHR says senior Bush Administration officials impeded investigations by the Federal Bureau of Investigation (FBI), and the State and Defense departments, and apparently never conducted a full inquiry. The New York Times made the disclosure earlier this month in a story by Pulitzer Prize winning reporter James Risen.

Subsequently, President Barack Obama told CNN’s Anderson Cooper that he has directed his national security team to look into the alleged massacre. Obama said the government needs to find out whether actions by the U.S. contributed to possible war crimes.

“The Bush Administration’s disregard for the rule of law and the Geneva Conventions led to torture of prisoners in Guantánamo and many other secret places,” noted Nathaniel Raymond, PHR’s lead researcher on Dasht-e-Leili.

“Contrary to the legal opinions of the previous Department of Justice, the principles of the Geneva Conventions are non-negotiable, as is their enforcement. President Obama must open a full and transparent criminal probe and prosecute any U.S. officials found to have broken the law,” he said.

“The State Department’s statement to the New York Times that suspected war crimes should be thoroughly investigated indicates a move towards full accountability,” added Raymond. “We stand ready to aid the US government in investigating this massacre. It is time for the cover-up to end.”

PHR reiterated its call on the Government of Afghanistan, which has jurisdiction over the alleged mass grave site, to secure the area with the assistance of ISAF (International Security Assistance Force-Afghanistan), protect witnesses to the initial incident and the ensuing tampering and ensure a full investigation of remaining evidence at the site, including the tracing of the substantial amount of soil that appears to have been removed in 2006.

“Gravesites have been tampered with, evidence has been destroyed, and witnesses have been tortured and killed,” PHR said. “The Dasht-e-Leili mass grave site must finally be secured, all surviving witnesses must be protected, and the Government of Afghanistan, in coordination with the UN and NATO (North Atlantic Treaty Organization), must at last allow a full investigation to go forward.”

PHR charged that American officials have been reluctant to pursue an investigation — sought by officials from the FBI, the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the CIA and his militia worked closely with United States Special Forces in 2001.

The group said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.

“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically’.”

PHR’s Raymond, who is head of the organization’s Campaign Against Torture, told us that President Obama’s statement was welcomed. But, he added, “The President’s rhetoric must be matched by urgent action. He needs to pressure President Karzai to secure the mass graves site, protect witnesses and make sure that U.S.-led military forces and the United Nations in Afghanistan protect all evidence of the crimes.”

PHR said that, in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the Afghan president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.

The question of culpability for the prisoner deaths — which may have been the most significant mass killing in Afghanistan after the 2001 American-led invasion — has taken on new urgency since the general, an important Karzai ally, was reinstated to his government post last month. He had been suspended last year and living in exile in Turkey after he was accused of threatening a political rival at gunpoint.

The killings reportedly occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.

Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers.

General Dostum, however, has said previously that any such deaths of the Taliban prisoners were unintentional. He has said that only 200 prisoners died and blamed combat wounds and disease for most of the fatalities.

The first calls for an investigation came from his group and the International Committee of the Red Cross. A military commander in the United States-led coalition rejected a request by a Red Cross official for an inquiry in late 2001, according to the official, who, in keeping with his organization’s policy, would speak only on condition of anonymity and declined to identify the commander.

Subsequently, PHR asked the Defense Department to investigate the alleged massacre, but no action was taken. PHR says the prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.

“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime. And Wolfowitz said we are not going to be going after him for that.

Wednesday, July 15, 2009


By William Fisher

Today, the first full day of questions from members of the U.S. Senate Judiciary Committee considering the confirmation of Supreme Court Justice Sonia Sotomayor, was remarkable mainly for the softball questions asked by her Democratic supporters and the snarky, “gotcha” questions posed by her Republican opponents.

With a few notable exceptions, many observers found today’s hearing an exhibition of the triumph of politics over jurisprudence. Much of the session appeared to be more akin to a political debate among rivals in a political campaign than a discussion of the profound national implications of the appointment of a jurist to a lifetime appointment.

Chairman Patrick Leahy, a Vermont Democrat, the first questioner, sought to preempt Republican criticism of an oft-quoted 2001 off-the-court speech by Sotomayor, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

She said, "I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”

She explained that the speech was given to Hispanic and other young law students and that she was trying to inspire them to believe “they could be anything that they wanted to be.”

But the “wise Latina” issue was far from settled. It was raised again immediately afterward by the senior Republican on the Committee, Senator Jeff Sessions of Alabama. Sotomayor told him her background as a trial and appellate court judge had taught her to keep an open mind and not come to any cases with a prejudgment of the outcome.

But Sessions was apparently not satisfied; he returned to the “wise Latina” issue several times, as did Republican Senators Orrin Hatch of Utah, John Kyl, of Arizona, and Lindsey Graham of South Carolina. Sessions said he was “troubled” by the sentiment he finds in the remarks.

Overall, there was far more discussion of the “wise Latina” issue than of Sotomayor’s legal decisions or her approach to judging.

"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said yesterday after the hearings ended for the day.

"And they've expressed a rather serious critique of the classical ideal of blind justice," he said.

Trying to portray Sotomayor as an “activist judge,” the Alabama lawmaker cited her onetime comment suggesting that judges make policy.

"I do believe judges must apply the law and not make the law," the nominee said today.

"I don't think it's that clear," said Sessions.

But Sotomayor retained her composure, sitting with her leg elevated due a recent broken ankle, and with a half-smile reminiscent of the Mona Lisa. She smiled at Sessions and responded: "Life experiences influence us, in a good way. But that's not what drives the result. The impartiality in the law drives the result," she said.

She also said that she accepted as "settled" the current U.S. law permitting abortion, and indicated that she might be open to the idea of permitting Supreme Court hearings to be broadcast on television.

Sen. Charles Grassley, Republican from Iowa, asked Sotomayor about the Kelo case. Sotomayor said she "has to accept, because it is precedent" the court's ruling. The extent of the ruling, she says, "has to await the next case." In that case, the Supreme Court ruled that the city of New London, Connecticut, had the right to seize private property and turn it over to a commercial developer in order to encourage economic development.

Despite their criticisms, Republicans were careful to speak glowingly about Sotomayor’s humble beginning, her rise from a public housing project in the south Bronx to a distinguished career in the law.

"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, an Arizona Republican.

On this issue, the Republicans find themselves between a rock and a hard place: They need to be critical of the nominee, but they need to do it in a way that will avoid alienating Hispanic voters, who make up the nation’s fastest-growing minority demographic.

She was also questioned about a recent controversial ruling she and two other judges made against white New Haven, Connecticut firefighters who alleged reverse discrimination after being denied promotions.

Sotomayor explained that the ruling wasn't about affirmative action or quotas. "The issue was not what we would do or not do, because we were following precedent," she said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court. Sotomayor said she would "absolutely" have reached a different result in light of the Supreme Court's reversal.

The 55-year-old nominee was also grilled by Sessions on the issue of guns today. Rejecting a challenge to a New York state law banning possession of "chuka sticks," a martial arts weapon, Sotomayor said she was bound by a 19th century Supreme Court ruling that said the Second Amendment does not apply to state laws that limit weapons possession.

She noted that the justices, in ruling last year that individuals have a constitutional right to possess guns for self-defense, left open the question of whether the ruling would apply to state and local gun control laws. She said it is up to the high court, not other judges, to make that decision.

In response to questions from Democratic Senator Russ Feingold, Sotomayor declined to detail how she felt about the actions of the federal government after the terrorist attacks of September 11, 2001, the secrecy of the FISA (Foreign Intelligence Surveillance Act) court, warrantless wiretapping, the torture statute, and the limits of presidential authority because the issues are likely to come before the Supreme Court.

However, she volunteered that the power of the presidency is at its strongest when the executive branch of government acts in concert with congress.
Arguably, the only time Sotomayor appeared to be trying to find ways to evade non-judicial questions was when Senator Graham asked about her 12-year service on the board of the Puerto Rican Legal Defense and Education Fund, some 30 years ago. She ducked questions about taxpayer-funded abortions and the death penalty, saying as a board member her principal job was fund-raising. Graham promised to revisit the issue with her tomorrow.

Sotomayor is of Puerto Rican descent and was born in the Bronx, New York, where she and her family lived in a public housing project. If confirmed by the full Senate, she would be the Supreme Court’s first Latina Justice.

The hearing continues tomorrow.

Monday, July 13, 2009

Republicans Tread Cautiously in Sotomayor Hearing

By William Fisher

In what many Congress-watchers see as Washington’s version of Kabuki Theater, the U.S. Senate Judiciary Committee today began its hearings on the confirmation of Judge Sonia Sotomayor to be the first Latina associate justice of the Supreme Court and only the third woman ever to be nominated to the nation’s highest court.

In a packed hearing room, the committee, 13 Democrats and 7 Republicans, will spend much of this week asking the 55-year-old nominee about her compelling up-from-poverty personal story, her judicial philosophy, the decisions she made in her 17-year record as a federal judge, and a number of her speeches and papers which have become controversial.

President Barack Obama chose Sotomayor in late May to take the place of Justice David Souter, who retired last month. Justice Souter was appointed by President George H.W. Bush, but has generally sided with the liberal wing of the court. Sotomayor’s presence would probably not appreciably alter the balance of the power on the conservative-leaning court.

While her confirmation is considered virtually certain – Democrats control both the committee and the full Senate – the thrust of the questions from representatives of the two political parties varied widely.

Democrats focused on Judge Sotomayor’s personal background, education, and experience as a 17-year a federal judge, and portrayed the nominee as a painstakingly careful “mainstream” jurist with a demonstrated record of applying the law fairly.

A majority of Republicans – some of whom have labeled President Barack Obama’s pick a racist – appeared to dismiss the bulk of her rulings as dictated by Supreme Court precedent, and instead cited a handful of controversial decisions and off-the-bench remarks to paint Judge Sotomayor as an extremist who could use her high court seat to tip the scales in favor of minority groups she considers victimized by American history. Controversial cases include discrimination complaints, gun rights, and her largely unknown views on abortion.

The party schism was seen in bold relief in this morning’s 10-minute opening statements from each of the committee members. But, in the surprisingly civil and respectful tone struck by Republican members, it was clear that they were well aware of the risk posed among Latino voters if their statements appeared to be overly harsh.

In his opening statement, the chairman of the committee, Senator Patrick Leahy, a Democrat from Vermont, criticized “distorted attacks” on Sotomayor on the basis of race. He said the nominee will rule on the basis of law, not ideology.

He compared Sotomayor to Thurgood Marshall, the court's first African American, and Sandra Day O'Connor, its first female member.

Conservatives and some Republicans, Leahy said, have attempted to "twist her words and her record. . . Ideological pressure groups have attacked her before the president had even made his selection," Leahy said. "They then stepped up their attacks by threatening Republican senators who do not oppose her.”

He said, "We do not have to speculate about what kind of a justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence."

The committee's ranking Republican, Sen. Jeff Sessions of Alabama, criticized a speech Sotomayor gave in 2001, in which she said that she hoped that a "wise Latina" judge might make better decisions than a white man.

Sessions also referenced a recent case, Ricci v. DeStefano, in which the Supreme Court overturned a unanimous 2nd Circuit three judge panel of which Sotomayor was a member. The high court ruled that white firefighters had been discriminated against when the city of New Haven, Connecticut, withdrew a test for promotions because minority candidates scored more poorly than whites.

Sessions said he thought that American jurisprudence “is at a crossroads.” One path, he said, will take us down the “traditional road”, which gives our Constitution its “moral authority.” The other road, he said, takes us to “activist judges” who distort the Constitution to fit their political agendas.

Sessions disagreed with the characterization of Sotomayor as “moderate,” instead comparing her with Justice Ruth Bader Ginsburg, who he called “one of the most activist judges” on the Supreme Court.

In her brief remarks, which came at the end of three hours of statements from 20 senators, Judge Sotomayor told the Senators that her judicial philosophy is not to make law, but rather to apply the law to the facts of each case. “My decisions are not made to service the interests of any one litigant,” she said. She added that she was keenly aware of the impacts of her rulings on the lives of real people with real problems.

Sotomayor is of Puerto Rican descent, and was born in the Bronx, New York, where she and her family lived in a public housing project. She graduated with an A.B., summa cum laude, from Princeton University in 1976, and received her J.D. from Yale Law School in 1979, where she was an editor at the Yale Law Journal.

Sotomayor was an Assistant District Attorney in New York for five years before entering private practice in 1984. She played an active role on the board of directors for the Puerto Rican Legal Defense and Education Fund.

Sotomayor was nominated to the U.S. District Court by President George H. W. Bush in 1991 and confirmed in 1992. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals.

The American Bar Association has given Judge Sotomayor its highest rating – “well qualified.” She has also received the support of law enforcement agencies, liberal think tanks, and most good-government and civil rights organizations. Conservative lawmakers and advocacy groups such as the National Rifle Association have raised questions about her fitness to serve on the court.

But the current consensus is that the Republicans are resigned to losing this fight. As South Carolina Republican Senator Lindsey Graham told her this morning, “Unless you have a complete meltdown, you are going to be confirmed.” Republicans have also been put in a delicate political position, since their party is actively wooing Hispanic voters – the nations’ fastest-growing minority demographic.

But, as was clear by this morning’s statements, Republicans will nonetheless mount an attack on Sotomayor as a predicate for a much harsher assault when President Obama nominates his next Supreme Court choice because that nominee is likely to change the Court’s liberal-conservative balance of power.

Wednesday, July 08, 2009


By William Fisher

Following a loss in federal court, the organization representing detainees held by the U.S. without charge at Bagram Prison in Afghanistan, called on the Obama Administration to “reverse the flawed policies of the previous Bush White House” and end the indefinite detention without trial of Afghan civilians held in American custody.

Judge John D. Bates of the U.S. District Court for the District of Columbia dismissed the petition Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.

In an earlier ruling, in April 2009, Judge Bates said that three other Bagram prisoners -- two Yemenis and one Tunisian citizen – did have the right to petition U.S. courts for their release. But he also ruled that because Wazir was a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.

Wazir is a citizen of Afghanistan who was captured in Pakistan in 2002, and held since then in extrajudicial detention at Bagram. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.

According to Lal Gul, chairman of the Afghan Human Rights Organization, Wazir "is not a commander, not a member of the Taliban or al-Qaeda. He is a businessman."

Tina Monshipour Foster, Executive Director of the International Justice Network (IJNetwork), the organization representing Bagram detainees, told us, "The Court’s decision to deny Mr. Wazir the right to challenge his detention was based solely on the fact that he is a citizen of Afghanistan. It is time for President Obama to take action and begin to reverse the flawed policies of the previous Bush White House.”

She added, “If the Obama Administration genuinely wants to restore the moral authority of the United States, commitment to ‘change’ must extend to Bagram and all the detainees held there. Only after we cease to deny Afghan citizens the most basic rights to due process can legitimate talk of justice and cooperation take place. "

"It is now more urgent than ever that the Obama administration end the Bush administration's inhumane and unlawful detention practices in Afghanistan,” she said.

"If President Obama doesn't remedy the situation created by the court decision, Afghan citizens will be denied equal access to our courts," added Foster. "Such a gross inequality does great harm to America's reputation as a nation committed to justice and equality for all people."

IJNetwork Litigation and Advocacy Director, Barbara J. Olshansky, said that "President Obama must do more than issue platitudes about closing Guantanamo, he must establish a fair and effective system of justice that applies to all individuals who we take into our custody and control, no matter where in the world we decide to locate the prison."

In response to the court’s decision, Olshansky added, "innocent civilians should not have to languish in prison solely because they are citizens of Afghanistan -- the present administration can, and must, provide fundamental rights to everyone it chooses to detain, regardless of race, ethnicity, or religion."

The International Justice Network (IJNetwork) provides legal assistance and expertise to victims of human rights abuses through a global network of legal professionals, non-governmental organizations and community-based human rights advocates.

While millions know that the administration of George W. Bush has left Barack Obama with the job of closing the U.S. prison at Guantanamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.

That dilemma is what to do with the what has become known as “the other GITMO” – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.

The “other GITMO” was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantanamo.

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

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

Jonathan Hafetz, staff attorney with the American Civil Liberties Union National Security Project, told us, "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."

"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," he said.

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, staff attorney with the ACLU National Security Project. "The American people have a right to know what's happening at Bagram and whether prisoners have been tortured there."

Thousands of individuals from all over the world have been taken to the airfield prison, and it is being expanded with a new prison to hold more than 11,000.


By William Fisher

While President Barack Obama conceded in his speech in Cairo last month that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation,” civil rights advocates are pressing the president to turn his words into action.

The Muslim Public Affairs Council has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.

In a letter to the president, the organizations said, “We are seeking a meeting with you and the appropriate representatives of your administration to provide background information on how current national security rules create problems for all U.S. charities and to provide recommendations for change.”

It outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”

The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.

It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”

For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”

The “war on terror” has dealt a harsh blow to Muslim charities and interfered with their donors’ religious freedom, according to a report by the American Civil Liberties Union (ACLU).

The report says statutes that it describes as overly broad and enforced in a discriminatory manner, coupled with a lack of due process, have starved Islamic charities of money and impeded Muslims’ ability to fulfill their religious requirement to make charitable donations.

Entitled “Blocking Faith, Freezing Charity,” the report is based on interviews with more than 100 Muslim community leaders as well as experts on antiterrorism laws and regulations. Though it gives no estimate of the decline in donations to Muslim groups, it says a total of nine Islamic charities have closed as a result of government action against them since the terrorist attacks of Sept. 11, 2001.

That action ranges, it says, from declaring a group to be under investigation to designating it a terrorist organization and freezing its assets.

Georgetown Law Center’s David Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told us, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”

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

Last November, five members of the now-defunct Holy Land Foundation for Relief and Development were convicted in federal court in Dallas of funneling money to the Palestinian militant group Hamas and sentenced to prison. The defendants said they only gave much-needed aid to a volatile region.

Two other high-profile terrorism-financing trials, in Chicago and Florida, ended without convictions on the major counts.

Two current court cases may test the limits of the Obama administration's executive authority as well as its commitment to transparency. Human rights lawyers are challenging the government's right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.

In one case, the government shut down the Al Haramain Islamic Foundation, a Saudi charity, in 2004, allegedly using information obtained though illegal wiretaps. In the other, also involving a Muslim-oriented charity, the American Civil Liberties Union (ACLU) is challenging the constitutionality of government programs that designate organizations as "terrorists" and close them down without providing these groups a way to contest the decision in court.

In the Al Haramain case, the George W. Bush administration's Treasury Department charged 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. Now 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.

The judge in that case, Vaughn Walker of the federal district court in San Francisco, rejected the government's claims. In a first-of-its-kind ruling, the judge said the government had to comply with the Foreign Intelligence Surveillance Act (FISA), which forbids it from obtaining evidence without first obtaining a warrant from the FISA court.

The president, the judge said, could not invoke the state secrets privilege to conceal the evidence and dismiss the case.

And when the Obama administration filed an emergency appeal before the Ninth Circuit Court of Appeals in San Francisco, it hoped for a reversal of the lower court's ruling. But the appeals court surprised government lawyers - and legal scholars - by rejecting their appeal, thus allowing the lower court decision to stand.

The decision was a significant victory for Al-Haramain's lawyers, who said they needed the classified documents to represent their clients.

"I did not expect this from the Obama justice department," Jon Eisenberg, an Oakland, California, lawyer representing Al Haramain, 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," he said.

In the second case, the Treasury Department threatened to name KindHearts, a Muslim charity, as a "specially designated global terrorist" (SDGT) based on classified evidence, without providing it with a reason or meaningful opportunity to defend itself.

The ACLU is asking a federal court to block the government from blacklisting KindHearts without providing it due process, and to lift the freeze on the organization's assets.

"OFAC's unlimited authority to seize KindHearts' property and shut it down without giving the charity notice or an opportunity to defend itself is unconstitutional," Hina Shamsi, lead ACLU attorney on the case, told us.

"KindHearts has been in limbo for more than two and a half years and is asking for independent judicial scrutiny of what has been, until now, unilateral government action," she said.

In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review.

Tuesday, July 07, 2009

Blackwater Charged With Murder, Tax Evasion, Shredding of Evidence in Baghdad Massacre Case

By William Fisher

New charges filed against private security contractor Blackwater accuse the company of murder, destruction of audio and videotaped evidence, distribution of controlled substances, tax evasion, child prostitution, and weapons smuggling.

The new charges were filed under the Racketeer Influenced and Corrupt Organizations Act (RICO) by several of the Iraqi civilians who were injured or who lost family members when Blackwater personnel opened fire in Nisoor Square in Baghdad in September 2007.

The new allegations, which have been added to an ongoing civil lawsuit in Virginia federal court, charge that then Blackwater chairman Erik Prince "has created an enterprise that has engaged in a series of illegal acts that suffice as RICO predicate acts extending over a substantial period of time beginning
at least in 2003. The Prince RICO Enterprise continues to exist, continues to engage in repeated illegal acts, and poses a grave and special threat to the social well-being of the world."

The lawsuit alleged that Blackwater “created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life. This action seeks compensatory damages to compensate the injured and the families of those gunned down and killed by Blackwater shooters. This action seeks punitive damages in an amount sufficient to punish Erik Prince and his Blackwater companies for their repeated callous killing of innocents.”

Blackwater has changed its name and is now operating as Xe and other names under Prince’s control. Eric Prince has resigned as chairman of the company.

Katherine Gallagher, of the Center for Constitutional Rights, a member of the legal team bringing the suit, told us, "Through this case, the victims of the most notorious -- though far from the only -- shooting of civilians on the streets of Baghdad seek to hold accountable those who have caused irreparable harm to them and their loved ones. The Plaintiffs are all Iraqis who were simply going about their daily lives when Blackwater opened fire in Nisoor Square. They look forward to having their day in court against Blackwater and its founder, Eric Prince."

She added, “The Iraqi victims of Xe - Blackwater’s unlawful actions have come to U.S. courts in search of justice. Justice begins with accountability, and private military contractors must be held accountable when they shoot innocent people.”

The complaint alleges that Xe-Blackwater “created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company's financial interests at the expense of innocent human life. The destruction and suffering caused by the defendants, controlled by Erik Prince, are contrary to the interests of the U.S. military and State Department, and the nation of Iraq."

The suit also seeks a court order requiring Erik Prince to divest himself of any direct or indirect interest in the RICO Enterprise or dissolve the RICO Enterprise after making due provision for the rights of innocents, imposes reasonable restrictions on Prince's future activities or investments, and prohibits Prince from engaging in any mercenary or private military business."

This case, Abtan v Prince, was originally filed in the District Court for the District of Columbia in October 2007 following the shooting in Nisoor Square in September 2007. The alleged victims voluntary dismissed the case in the District of Columbia and filed in the Eastern District of Virginia last month. The amended RICO complaint was filed last week.

The underlying facts in this civil case form the basis for the criminal case filed by the Department of Justice against six Blackwater "shooters." One pled guilty and the trial of the remaining five defendants is currently set for early 2010.

The defendants in both cases include Mr. Prince, Xe, various Prince-controlled entities such as Blackwater, The Prince Group, Falcon, Greystone Limited, Total Intelligence Solutions, EP Investments, and Raven Development Group.

Blackwater was operating Iraq under a contract with the U.S. State Department (DOS), its mission being to protect DOS personnel. In December 2008, the State Department’s inspector general warned that Blackwater might not be granted a license by the Iraqi government next year, forcing the Obama administration to make new security arrangements.

The Iraqi government subsequently denied Blackwater a license and the State Department hired another private security firm.

The issue of private security contractors in Iraq was further complicated by the Status of Forces agreement negotiated between the U.S. and Iraq. Under that agreement, State Department contractors no longer have immunity from criminal prosecution under Iraqi law.

The IG report found that changes since the 2007 shooting “have resulted in a more professional security operation and the curtailment of overly aggressive actions” by contractors toward Iraqi civilians.

In response to its findings, Senator John Kerry, the Massachusetts Democrat who chairs the Foreign Relations Committee, urged the State Department to drop Blackwater as an Iraq contractor.

Blackwater founder Erik Prince is a former U.S.navu Seal and a major contributor to Republican Party candidates. In resigning, he released a brief statement announcing he is stepping down to “focus his efforts on a private equity venture unrelated to the company."

In a personal message sent to his employees and clients, Prince attempted to depict his departure as a natural evolution. "As many of you know, because we focus on continually improving our business that Xe is in the process of a comprehensive restructuring," he wrote. "It is with pride in our many accomplishments and confidence in Xe's future that I announce my resignation as the company's Chief Executive Officer."

Blackwater's new name and Prince's resignation followed the State Department's announcement that it would not be renewing Blackwater's security contract in Iraq. Blackwater still holds lucrative government contracts in Afghanistan and elsewhere and is reportedly marketing "CIA-type services" to Fortune 1000 companies through Prince's Total Intelligence Solutions.

The complaint alleges that Xe-Blackwater, “in addition to hiring persons known (or should have been known) to use steroids and other judgment-altering drugs, has been hiring as mercenaries former military officials known to have been involved in human rights abuses in Chile.”

It contends that “Xe-Blackwater knows that the former Chileans commandos hired by Xe-Blackwater received amnesty from punishment for their wanton disregard of human rights in exchange for being forbidden from taking part in any military or security activities in Chile.”

The suit also charges that “Xe-Blackwater has been hiring mercenaries from the Philippines, Chile, Nepal, Colombia, Ecuador, El Salvador, Honduras, Panama, Peru, Bulgaria, Poland, Romania, Jordan and perhaps South Africa.” Blackwater hired foreign nationals without regard for the fact that they were forbidden by the laws of their country from serving as mercenaries,” the complaint says.

It also alleges that Xe-Blackwater employees “shredded an unknown number of documents that related to the company’s criminal and civil legal exposures.”

Xe-Blackwater failed to take the appropriate steps in hiring proper personnel to perform services.” It failed to properly screen personnel before their hiring; to train personnel properly; to investigate allegations of wrongdoing; to reprimand for wrongful actions; to adequately monitor for and stop illegal substance abuse; and negligently permitted repeated lawlessness by employees,” the lawsuit charges.

It also accuses The Prince RICO Enterprise of “willfully evading the payment of taxes during 2006 and 2007 by hiding the proceeds from its illegal racketeering acts in offshore accounts, the complaint charges.


By William Fisher

U.S. authorities detain thousands of people each year solely
on the basis of religion, race or nationality, the American Civil Liberties Union charges in a new report to the United Nations.

The report says racial profiling is often applied to immigrants from South Asia and to North Africans suspected of being Islamic militants following the terrorist attacks of Sept. 11, 2001.

Submitted to the U.N. Committee to End Racial Discrimination, the report said profiling could involve harassment, detention, arrest or investigation.

Many Latin American immigrants are also targeted for immigration violations while others, including African Americans, are profiled as suspected drug offenders, the report said.

Chandra Bhatnagar, staff attorney with the ACLU's human rights program, told us, “Racial profiling was widespread and pervasive during the George W. Bush Administration and it continues to be the reality today. The Obama Administration must finally put an end to this undemocratic and counterproductive practice by supporting the legislation currently making its way through Congress.”

He was referring to the End Racial Profiling Bill first introduced in 1997, but which has not yet been passed into law.

Civil libertarians place much of the responsibility for continued use of racial profiling to the practices of the Department of Homeland Security (DHS), and particularly to a DHS unit known as U.S. Immigration and Customs Enforcement (ICE). ICE, a law enforcement organization and the largest investigative arm of the DHS, is responsible for enforcing the nation’s immigration and customs laws.

Months ago, DHS’s new leader, Secretary Janet Napolitano, promised a thorough review of the agency’s policies and practices. But the ACLU’s Bhatnagar agrees with other civil liberties advocates that no results of that review have been made public.

These advocates are particularly critical of a number of DHS programs designed to increase the participation of state and local police in enforcing federal laws.

"Police officers who are often not adequately trained, and in some cases not trained at all, in federal immigration enforcement, will improperly rely on race or ethnicity as a proxy for undocumented status," the ACLU report said.

The involvement of local police in this was having a "devastating impact" on some communities, Bhatnagar told us.

The ACLU says it has received complaints from across the country of U.S. citizens of Latin appearance being illegally stopped, detained, arrested and even deported by local law enforcement functioning as immigration agents.

Another contentious issue is ICE’s detention policies and practices, which have resulted in significant increases in immigrants being held in jails run by ICE, city and county jails, and private prison facilities.

The Los Angeles detention center has been a particular target of criticism. Civil rights groups are suing ICE in federal district court for detaining immigrants in egregious and unsanitary conditions in that facility.

The lawsuit, filed by the ACLU of Southern California, the National Immigration Law Center, and a private law firm, also charges that the unsanitary conditions have led ICE to deprive immigrants of due-process rights such as access to mail or attorneys while in detention.

The Los Angeles facility, known as “B-18,” is allowed to temporarily house detainees for no more than 12 hours. But in what the ACLU calls “a perverse distortion of its original purpose,” it says immigration officials have kept detainees for weeks by shuttling them to local jails in the evenings and on weekends, and returning them to the facility on the next business day, the lawsuit said.

The lawsuit also alleged that immigration officials often fail to notify detainees that they have the right to obtain release on bail while their cases remain pending.

The lawsuit said B-18 has not provided basic medication besides the lack of sanitary equipment. Some of the facilities to which detainees are shuttled have similar gross deficiencies. Detainees are not permitted to have shower in jail. Up to 50 detainees routinely share one open commode, one urinal (or two open commodes) and one sink. At some local jails, overcrowding and vents that blow extremely cold air on the bunks force detainees to sleep on mattresses on the floor. At B-18 and other jails, guards force detainees to remain inside through the entire day, and only permit them to go outside when shuttling them between detention centers. They are not permitted to have any physical recreation.

These conditions violate the statutory and constitutional rights of the detainees. “It’s shameful that immigration officers are treating detainees like animals, apparently because the immigration bureaucracy cannot seem to send detainees to the right place,” said Ahilan Arulanantham, ACLU Director of Immigrant Rights and National Security.

ICE has also faired poorly in court cases. In April, a federal judge issued a ruling calling into question the U.S. immigration agents' treatment of a Syrian-born German citizen who was jailed by U.S. officials, subjected to strip and visual cavity searches, and asked to spy for the U.S. government. The federal court rejected the government's request to have the case against the U.S. government and immigration agents dismissed in its entirety.

The lawsuit was filed on behalf of Majed Chehade by the Lawyers' Committee for Civil Rights and a private law firm against the United States, federal agents, the City of North Las Vegas, and the North Las Vegas Police Department.

Chehade is a 64-year old German citizen whose wife, three children, and grandson are U.S. citizens. Chehade owns a home in Massachusetts and is the export director of a German manufacturing company. On his way to visit his daughter in December 2006, he was detained at Las Vegas Airport and taken to a local jail, where he was subjected to strip and visual cavity searches, denied access to medical care and his prescription medications, and told that if he wanted to return to the U.S., he would have to spy on behalf of the government.

In its ruling, the court held that strip searches of immigrants arriving in the country are constitutional only if supported by reasonable suspicion. The court further held that the immigration agents' actions could be considered "extreme and outrageous conduct" and allowed an inquiry into the legality of the government's attempt to conscript a foreign national to spy to move forward.

The ACLU and many other similar organizations are also critical of a DHS program known as Fusion Centers. These state, local and regional institutions were originally created to improve the sharing of anti-terrorism intelligence among different state, local and federal law enforcement agencies. These centers have grown to include not just law enforcement, but other government entities, the military and the private sector.

The ACLU says the centers, over 40 of which have been established around the country, “raise very serious privacy issues at a time when new technology, government powers and zeal in the ‘war on terrorism’ are combining to threaten Americans' privacy at an unprecedented level.”

It adds that “federal, state and local governments are increasing their investment in fusion centers without properly assessing whether they serve a necessary purpose.”

Saturday, July 04, 2009

Give Us Your Huddled Masses – But Battered Women Need Not Apply!

By William Fisher

Here’s a note for the “to do” list of the Obama Administration’s newly appointed Domestic Violence Czar – or Czarina in this case: Battered wives and significant others pose a serious law enforcement and public health problem affecting as many as one in four women in this country. But they are not just an American problem. Women are being whacked all over the world. And some of them are trying to find safety in America – and are being turned away.

Why? Because of the inept and bureaucratic foot-dragging of our Departments of Justice and Homeland Security. Thanks to their sorry non-performance over more than a decade, domestic violence is still not a legal basis for seeking asylum in the U.S.

Consider the plight of Rodi Alvarado from Guatemala. At 16, she married a man who, for the next decade, terrorized her. He raped and sodomized her almost daily, beating her before and during the violations. Because he was unfaithful, he infected her with sexually transmitted diseases. He dislocated her jaw when he learned that her period was late, and violently kicked her when she refused to abort her baby, causing her to bleed for eight days.

She tried to run away, even to the other side of the country, but her husband – a former soldier – always found her. One night, he woke her to whip her with an electrical cord, pulled out a machete and threatened to cut off her arms and legs if she ever tried to leave him again. He broke windows and mirrors with her head. He pistol-whipped and threw a machete at her, punched her and dragged her by her hair.

Mrs. Alvarado repeatedly sought help from the police in Guatemala, but to no avail. She pled her case to a judge, but the judge said the same thing: They don’t involve themselves in domestic matters.

Finally, in 1995, she did the most difficult and desperate thing she could do to save her life. After 10 years of cruelty, at age 28, she fled Guatemala and sought asylum in the United States.

There was only one problem. The U.S. has no asylum provisions that cover victims of domestic violence. Mrs. Alvarado was ordered deported. Under U.S. law, asylum applicants have to show they can't go home because they face persecution because of religion, race, nationality, political opinion, or membership in a particular social group. But not domestic abuse.

Enter a sympathetic immigration judge, who granted Mrs. Alvarado a temporary stay of deportation. That was in 1996 – thirteen years ago. And for thirteen years, Mrs. Alvarado has remained in this legal limbo. She hasn’t been deported – she works as a housekeeper in a California convent. But she can’t achieve any legal status and can’t be reunited with her son and daughter, who remain in Guatemala. She hasn’t seen them in thirteen years.

The reason: For more than a decade, the Department of Homeland Security and the Department of Justice have been playing musical chairs with a new asylum regulation that would cover victims of domestic violence. Without such a regulation, Mrs. Alvarado’s case cannot come before a Board of Immigration Appeals, which is supposed to re-decide her fate.

The musical chairs have bounced Mrs. Alvarado’s case from the Clinton to the Bush administrations, and now to the Obama Administration.

Opponents said new asylum rules would lead to a surge in claims, an assertion disputed by a large and bipartisan group of immigration, legal and religious advocates.

Those proposed regulations saved --and stalled --Alvarado's case. In 1996, an immigration judge granted Alvarado temporary asylum, finding that the abuse she suffered and the government's inability to protect her constituted persecution. But newly-installed Bush immigration service opposed the decision, and Alvarado's case went before the Board of Immigration Appeals, a Justice Department panel that reviews immigration cases.

The board ruled that Alvarado was not eligible for asylum and ordered that she be deported. But on her last day in office, Clinton Attorney General Janet Reno voided that ruling and instructed the board to reconsider the Alvarado case after the immigration service finalized the proposed regulations. A month later, George W. Bush took office.

The next stop in this cruel bureaucratic game was the desk of John Ashcroft, then Bush’s Attorney General. Ashcroft certified the case to himself, making him effectively the judge. He said he would decide Mrs. Alvarado’s fate. But he didn’t. Instead, he kicked the can down the road, deciding neither to grant nor deny asylum to Alvarado. A decision, he said, should await new regulations from the Department of Homeland Security.

Wonder of wonders, the DHS actually drafted a regulation to make domestic abuse a valid legal basis for asylum-seekers. But the Department of Justice disagreed with the draft. In the years since then, the DOJ and the DHS have failed to agree on the domestic abuse asylum regulations. Ashcroft’s inaction simply complicated the problem. Just before he stepped down, he passed the responsibility for the Alvarado case to his successor, Alberto Gonzales, who faithfully followed in the quicksand footsteps of his predecessors: He did nothing. And his successor, Michael Mukasey, did exactly the same thing: Nothing.

The DHS says it will not press for Mrs. Alvarado’s deportation regardless of how much longer it may take the agency to finalize the new regulations. But that’s cold comfort to Mrs. Alvarado. At the current pace, she could be a very old lady by the time the DHS and the DOJ decide to actually do something.

That’s where Obama’s new Domestic Violence Czar could be a huge help. Lynn Rosenthal is an experienced advocate for abused women. She was executive director of the National Network to End Domestic Violence and executive director of the New Mexico Coalition Against Domestic Violence. She has focused on domestic violence issues like housing, state and local coordinated community response, federal policy, and survivor-centered advocacy.

Reporting to Obama and Vice President Joe Biden, she will have the ears of the two guys at the top of the tree. And it may be helpful that Biden has had a long-standing interest in the domestic violence issue, dating from his days in the Senate and his key role in enacting the 1994 Violence Against Women Act.

Immigration experts say they are more encouraged than ever that cases like Mrs. Alvarado’s will be resolved by the Obama Administration. No doubt Ms. Rosenthal’s cup will runneth over with issues of purely homegrown domestic violence – which the stresses of the recession have apparently caused to spiral out of control. Perhaps the relatively tiny number of battered women seeking asylum in America will be assigned a low priority.

But further delay would simply exacerbate a gross denial of justice. So even at a time when immigration in general remains one of the third rails of American politics, Lynn Rosenthal needs to find the time to flex a little White House muscle with the DOJ and the DHS. She needs to ensure that the process of writing one new regulation doesn’t again fall victim to another decade of bureaucratic bungling and inter-agency turf wars.

So Rodi Alvarado can see her kids again.