Friday, August 28, 2009

Home-Grown GITMO?

By William Fisher

As the planned closing of the U.S. military’s detention center at Guantanamo Bay draws nearer, human rights activists are raising questions about the treatment of detainees who will be transferred to the U.S. for trial.

But, while the media has focused virtually all its attention on these foreign prisoners held abroad, the government is already imprisoning in the U.S. American citizens awaiting trial on terror-related charges – and under what their supporters describe as draconian conditions.

These people are being held under a Department of Justice rule known as Special Administrative Measures (SAMs), a rule dating from the Bill Clinton era and strengthened during the administration of George W. Bush.

SAMs are designed to keep dangerous inmates in custody from communicating with other terror suspects on the outside, and to prevent them from ordering violence or harming other inmates. The measures were expanded after the terrorist attacks of Sept. 11, 2001, extending the limit to one year from 120 days and permitting the monitoring of communications between the inmates and their lawyers in certain circumstances.

The DOJ and its Bureau of Prisons say six people – four charged with terror-related crimes -- are currently being held under the SAMs rule. But one case appears to be attracting increasing attention.

This is the case of Syed Hashmi, a 29-year-old Pakistani immigrant and U.S. citizen who grew up in Queens, New York, and who has been held in solitary confinement in a federal prison in New York City for more than two years while he awaits trial on charges of providing material support to Al Qaeda.

Hashmi, a Muslim, is on a 23-hour solitary-confinement lockdown and 24-hour surveillance including when he showers and goes to the bathroom. He was not allowed family visits for months. Now, he can see one person for an hour and a half, every other week. He is permitted to write one letter a week to a single member of his family, but he cannot use more than three pieces of paper per letter. Within his own cell, he is restricted in his movements and he is not allowed to try to talk guards or other inmates.

Hashmi is forbidden any contact -- directly or through his attorneys -- with the news media. He can read newspapers, but only those portions approved by his jailers -- and not until 30 days after publication. He is forbidden to listen to news radio stations or to watch television news channels.

He is also under 24-hour electronic monitoring inside and outside of his cell. He is allowed one hour of recreation every day -- which is periodically denied -- and not given fresh air but must exercise alone inside a cage.

One of Hashmi’s Brooklyn College professors, Jeanne Theoharis, who has attended the hearings in his case, told IPS that Hashmi’s “mental health appears to be deteriorating." His attorneys are concerned that his extreme isolation "will cause lasting psychological, emotional, and physical damage" to their client.

Theoharis, an associate professor of political science at the City University of New York's Brooklyn College, was instrumental in organizing a campaign to draw attention to the civil liberties and human rights concerns of Hashmi’s case that enlisted more than 550 signatories to petition the Justice Department protesting the conditions of Hashmi's confinement and undermining his right to a fair trial. Among them were Henry Louis Gates Jr. and Duncan Kennedy of Harvard; Seyla Benhabib of Yale; and Eric Foner and Saskia Sassen of Columbia.

Prosecutors have said that Hashmi’s friend, Junaid Babar, stayed at his London apartment for two weeks, while Hashmi was studying for a Master’s degree in the U.K. Babar stored luggage containing raincoats, ponchos, and waterproof socks in the apartment. Babar later delivered them to the third-ranking member of Al Qaeda in Pakistan.

When, later in New York, a Grand Jury charged Hashmi with "conspiracy to provide material support or resources to a foreign terrorist organization," the socks, ponchos, and raincoats became "military gear."

The government also charges that Hashmi let Babar use his cell phone "to call other conspirators." Hashmi says he had no idea whom Babar was calling.

Hashmi has denied that he was part of conspiracies to help Al Qaeda, or that he ever gave support to anybody to pass on materials to the terrorist group.

He was initially arrested in London in 2006 as he prepared to board a flight to Pakistan and was then extradited to the U.S. He has been held in New York since the Memorial Day weekend, 2007.

Hashmi has no criminal record and no history of committing acts of violence.

In court in January 2009, Hashmi’s lawyers called the restrictions on Hashmi too severe and asked a federal judge to lift some of them, perhaps allowing Hashmi to have a cellmate or to exercise in fresh air. But the judge denied a motion to consider the psychological impact of solitary confinement and ease the conditions of his detention. Hashmi’s trial is set for November 30, 2009.

Hashmi’s friend Babar has pleaded guilty to five counts of material support of Al Qaeda and has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi's trial. The Justice Department says Babar is the "centerpiece" of its case against Hashmi. In return, under a plea bargain, Babar will likely get a reduced sentence. If Hashmi is convicted, he may be sentenced to 70 years behind bars.

Much of the evidence against Hashmi is classified. His lawyers have received CIA-level clearance to view it but may not discuss it with Hashmi or with other uncleared experts.

Sean Maher, one of his attorneys, has told the media that he is under “severe limitations on what I can and can’t say.” Civil rights lawyer Lynne Stewart was convicted in 2005 for providing material support to a terrorist conspiracy for releasing a statement by imprisoned Sheik Omar Abdel Rahman to his followers in the outlaw Islamic Group. She is now appealing her conviction. Hashmi’s lawyer is under the same restrictions.

Maher also raised the issue of secrecy in federal court. “One of the paramount issues that this case brings up, without talking about any specifics in this case, is the use of secrecy in modern courtrooms. And in our Article III court, which we’re all trying to get people in Guantanamo to, what is the role of secrecy? And what will secrecy’s role play in these cases that President Obama says he might bring into these courts? “

As U.S. trials of GITMO detainees move closer to reality, these questions are likely to attract far wider interest. As Prof. Corey Robin, another of Hashmi’s teachers at Brooklyn College, told IPS, “The conditions of his confinement have not been changed since President Obama took office. As the nation looks backward to the Bush Administration, it is imperative that we draw attention to abuses – particularly those within our federal prisons and courts – that continue under the Obama Administration.”

Tuesday, August 25, 2009

Rights Groups, Lawmakers, React to Probe of CIA

By William Fisher

Attorney General Eric Holder’s decision yesterday to investigate whether interrogators from the Central Intelligence Agency or its contractors violated any federal laws in applying “enhanced interrogation techniques” to detainees in U.S. custody overseas triggered immediate criticism from human rights advocates and appeared to widen the partisan divide between Republicans and Democrats.

As Holder released a long-delayed 2004 report by the CIA’s then-Inspector General (IG) detailing the often-brutal questioning of “high value” al Qaeda terror suspects, he named a special prosecutor to investigate whether CIA officers or its contractors went beyond the policies and practices authorized in legal memos from the George W. Bush administration.

The 190-page report, though still heavily redacted, describes a litany of interrogation abuses inside the Central Intelligence Agency’s overseas prisons, including repeatedly choking a prisoner, threatening to sexually assault a detainee’s mother in front of him, vowing to kill a detainee’s children, using a power drill during an interrogation to terrify the suspect, and staging a mock execution.

The report also addresses the repeated waterboarding of Khalid Sheik Mohammed, the self-described “mastermind” of the 9/11 attacks. Some CIA operatives were unclear about the legal basis for using this technique and sought guidance from their headquarters. The report says the attorney general at the time, John Ashcroft, was aware of and approved its use. Mohammed was waterboarded 183 times in a single month.

But prosecutor John Durham's mandate will be limited to roughly a dozen cases in which CIA interrogators and contractors may have violated U.S. torture laws and other statutes. Moreover, Durham will first conduct a 'preliminary' investigation meant to determine whether a full investigation is appropriate. Many of the same cases were reviewed in 2005 during the Bush Administration, which decided that prosecutions were not justified.

Predictably, the middle ground taken by Holder failed to satisfy either the Right or the Left. Those on the Right want no investigations. Those on the Left believe the investigation should not be limited to CIA operatives but rather should follow the evidence trail up the chain of command to senior Bush administration officials.

Moreover, in the heated partisan environment of today’s Washington, any investigation is likely to complicate the Obama Administration’s efforts to forge bipartisan coalitions to implement the president’s legislative agenda, which includes ambitious initiatives in health care, climate change, education, and immigration.

The human rights community was virtually unanimous in the view that Durham’s limited mandate did not go far enough.

"The Obama administration made a commitment to transparency, and the release of the IG report is a step in the right direction. The American public has a right to know the full truth about the torture that was committed in its name," said Jameel Jaffer, Director of the National Security project for the American Civil Liberties Union (ACLU), the group that originally brought the lawsuit against the government that resulted in the public release of the CIA IG report.

“The information in the report about the origins and scope of the CIA's torture program further underscores the need for a comprehensive investigation into the torture of detainees and those who authorized it," he said.

The Center for Constitutional Rights (CCR), a legal advocacy group that has provided defense counsel for many Guantanamo Bay detainees, said, “Justice demands an investigation without such limits – a comprehensive investigation that doesn't exempt high-ranking officials.”

Clare Algar, Executive Director of Reprieve, a London-based British charity that has defended more than 30 terror detainees, said, “Rather than creating low-level scapegoats, any prosecution should reveal that the criminal acts described in these memos were ordered by those at the very top of the CIA and Bush Administration.”

Devon Chaffee, Human Rights First Advocacy Counsel, said “The Attorney General should ensure that the appointed prosecutor has discretion to follow the facts wherever they lead, including investigating the architects of the system of prison abuse, not only those who implemented it.”

And, in a statement, Amnesty International USA, said, “After years of evidence that torture and human rights violations were ordered and authorized from above, only lower level personnel have been held to account. We can’t let impunity for torture continue.”

Members of Congress were far less unanimous.

Senator Dianne Feinstein, a California Democrat who heads the Senate Select Committee on Intelligence, said “The documents released today provide evidence that the CIA detention and interrogation program exceeded its authority.” Her committee is currently conducting its own investigation of the CIA ‘s abuse of prisoners in its secret prisons overseas. She said, “The Committee’s study will continue until we complete our work, regardless of any decision by Attorney General Holder on whether to proceed to a criminal investigation.”

Senator Ron Wyden, Democrat of Oregon and a member of the Senate Intelligence Committee, said the DOJ investigation reminded him of previous inquiries into prisoner abuse at Abu Ghraib in Iraq, when “lower ranking troops who committed abuses were hung out to dry.”

But Republicans took a decidedly different view. The senior Republican on the Intelligence Committee, Kit Bond of Missouri, characterized the appointment of a special prosecutor as a “witch hunt targeting the terror fighters who have kept us safe since 9/11.”

And Senate Minority Leader Mitch McConnell of Kentucky called Holder’s decision “poor and misguided.” Bond and eight other GOP Senators said Holder’s actions would have a “chilling effect” on the CIA.

In the House of Representatives, Rep. Peter Hoekstra of Michigan, the top Republican on the House Intelligence Committee, said the DOJ investigation could interfere with the government’s counter-terrorism programs. He added that the abuse charges had already been “exhaustively reviewed.”

But House Intelligence Committee Chairman, Texas Democrat Silvestre Reyes, said that senior Bush officials should not be left out of any probe.

As Holder was releasing the CIA IG report, the White House announced that the government would continue to carry out “renditions” – shipping detainees to third countries to be held in custody. But officials said these actions would be much more carefully monitored to ensure that prisoners were not sent to countries known to torture prisoners.

That announcement draw sharp and unanimous criticism from human rights advocates.

The ACLU’s Amrit Singh, who tracked rendition cases under President George W. Bush, echoed the community’s sentiment. She said, “It is extremely disappointing that the Obama administration is continuing the Bush administration practice of relying on diplomatic assurances, which have been proven completely ineffective in preventing torture.”

She cited the case of Maher Arar, a Syrian-born Canadian sent in 2002 by the United States to Syria, which offered assurances against torture but beat Mr. Arar with electrical cable anyway.

The disclosures by the Justice Department also included two reports that former Vice President Dick Cheney wanted released earlier this year, stating that they would demonstrate the effectiveness of abusive interrogation techniques. However, these reports refer to no specific interrogation methods and make no effort to measure their effectiveness.

Their release drew sharp criticism from human rights groups.

The comments of CCR Attorney Gitanjali S. Gutierrez are typical. She said, “These are the documents Dick Cheney was so excited to see declassified, but they don’t make the case for torture, they only show that the CIA is able to tailor documents to justify its actions after the fact.”

Cheney said yesterday that the CIA's interrogation of terror suspects "saved lives and prevented terrorist attacks." In a statement, he said those who carried out the interrogations "deserve our gratitude" -- not "to be the targets of political investigations or prosecutions."

Monday, August 24, 2009

Mubarak: Autocrat With Chutzpah

By William Fisher

New York Times columnist Paul Krugman, writing last week on health care reform, said “There’s a point at which realism shades over into weakness.”

But as I read his column, my brain seemed to wander, not to health care, but to another major news event of that week: The visit to the White House of Egyptian President Hosni Mubarak.

But why thoughts of this 81-year-old autocrat? Krugman said it: “There’s a point at which realism shades over into weakness.”

I don’t mean that I think Obama should deploy American Crusaders into the Land of the Nile to establish a liberal, pro-Western, American-style democracy. George W. Bush tried that in Iraq and we’ve seen how well that adventure turned out. That’s not realism; that’s hubris.

What I mean is that for a generation, the U.S. has generously bribed Egypt year in and year out for not again trying to invade Israel. And what Egypt has to show for our trouble is, well, zero, zilch, nada. Egypt has done next to nothing to further an Israeli-Palestinian agreement. And it has done nothing to improve the economic, social or political life of its people. Yet we persist in repeating what we’ve always done and expecting a different result.

Some would say that’s a great definition of insanity. But that’s what has passed for realism in our foreign policy in the Middle East.

Today’s rationale for keeping the big bucks flowing to the Mubarak regime is that Egypt will play a major role in finally ending the Israel-Palestine disaster. Except that we’ve seen this movie before. We seem to have a knack for reaching out for the slenderest of reeds to hang onto.

During the years I lived in Cairo, I witnessed the rhetoric of the State-controlled media. It was and is institutionalized government propaganda – always anti-Israeli and often anti-Semitic. (Israel and the Palestinian Authority, of course, constantly add fuel to the fire with their own propaganda machines.)

But the Mubarak regime has repeatedly used the Israeli-Palestinian impasse as a fig-leaf to obscure its own monumental deficiencies – and later used Bush’s “war on terror” mantra as an even more dramatic cover story. Does this sound like the job description of an honest broker?

I also read translations of some of the revisionist-history textbooks used in Egyptian schools – proclaiming, for example, Egypt’s “victory” over the Israelis in Sinai. I talked with upper-class, well-educated college students and members of my own staff about the Holocaust. Some of them denied it altogether; others said it resulted in the destruction of only one million Jews.

And what’s been done with all of our aid? Well, to say Egypt is an economic and political basket-case would be generous to basket-cases. Its continuing stagnation is the result of a toxic combination of overpopulation, lack of proper education and training, the effect of decades of failed economic policies, rampant corruption, and the absence of anything remotely resembling good governance.

Egypt has received more than $50 billion in military and economic aid from the United States since 1977, when it agreed to a peace treaty with Israel. Yet, long before the world collapsed into the current recession, unemployment in Egypt was off the charts – well over 10 per cent in most years. Kids who graduated from schools like Cairo University and the American University in Cairo – many with Master’s degrees – were driving taxis for tourists. And now the tourism industry is on life support. Many other Egyptians have joined the growing brain-drain to Europe and North America.

And the worst is probably yet to come. The labor force is growing at a far faster rate than the demand for labor. So the future looks even bleaker for Egpyt’s 80 million people.

In recent years, Mubarak and his Ministers have made countless speeches about entrepreneurism and how it is alive and well in Egypt. But entrepreurism appears to be only for those with lots of time on their hands. For example, what should be a relatively simple task of starting a new business can and does take months lost in the mother of all Byzantine bureaucracies. And if you happen to be one of those aspiring entrepreneurs, but you don’t happen to belong to one of the country’s “good families,” you can forget about getting a loan from any bank. Banks in Egypt lend to people who don’t need loans.

Corruption – a pandemic in the Middle East – is everywhere in Egypt. Some of it qualifies as petty corruption, like bribing the phone company manager to turn your phone on or paying off the supervisor at the police academy to say that you are three inches taller that you actually are to meet the Academy’s requirements.

But there’s also big-time corruption, like unlawfully importing toxic agricultural chemicals, and relabeling them to secure a higher mark-up. The American Chamber of Commerce in Egypt reports that corruption in the import-export supply chain adds about $30 to every single transaction. That makes Egypt uncompetitive and its Customs officials comfortable.

But it’s political corruption that will be Mubarak’s legacy. In preparation for his visit to Washington, the aging strongman granted an interview with Charlie Rose. Here are a few of the choice statements Mubarak made, with a straight face, and largely unchallenged by the sychophantic Rose:

Mubarak: Look, we are a large country. And we have stability here. We enjoy stability…It is not on my mind to have my son inherit me…the choice and election of the president is open to the population in its entirety. It is the decision of the population to elect who would represent people. It is not for me to decide that. It is the decision of the people to elect the person who they trust… There is freedom of speech…The more good opposition the more stronger our (inaudible).

Rose: Do you think the Bush administration was right to promote democracy in the region in the way that it did?

Mubarak: No…We do not accept pressures in politics or in interior domestic politics from any administration with due respect to all governments. We do not accept pressures on the pretext of domestic reform. It has to be home-grown. Reform has to be home-grown. And it is what the people demand…to accept pressure from an administration or another, no. This pressure might be against the interest of the people. I respond to the demands of the people…Democracy is there in Egypt. We have freedoms that were not there before. We have an election of the president. We have freedom of the press. We have about 600 dailies and weeklies, give or take…We are doing reforms based on the demands of the people.

Rose: It is said that (Obama) will not publicly discuss human rights. He does not want it to be an issue, but that he will bring it up in private.

Mubarak: Your concept of human rights is a merely political one. Human rights are not only political. You have social rights. You have the right to education. You have the right to health. You have the right to a job. There are many other rights. And we are doing well on these fronts…We have a human rights commission…There have been many sentences against people who have breached human rights. It is not merely a political concept. It is social. It is health.

Rose: Much is written about the fact that in the election, the most — the last election in which there were more candidates, that since then, you have moved away and that you have cracked down on the Muslim Brotherhood.

Mubarak: These people whom you are talking about cannot form a political party, because our constitution maintains and stipulates that a political party shall never be based on a religious basis. They cannot form a political party. And this is part and parcel of the constitution as amended by the people. But the Muslim Brotherhood are there as (members of Parliament) as individual (members) within the Parliament. We have about 80 of them.

Rose: You've had emergency rule since 1981. Emergency rule. You should be confident enough in your leadership not to have to….

Mubarak: You do not grasp fully the emergency law. It has been there since the days of the British occupation. And it used to be called marshal law. We confine our recourse to the emergency law, to terrorist crimes. Otherwise it is the rule of law under the normal laws through the…courts of law.

Rose: But is it necessary?

Mubarak: We have two choices, either to issue a law to combat terrorism, which will be a permanent law. It was refused because nobody wanted a permanent law. And the second choice is emergency law that will be used exclusively against terrorist crimes. We have not used it for any intent to close down a newspaper or to contain or limit any movement, any freedom of movement.

Rose: The history of Egypt for the last 28 years is the history of one man, Hosni Mubarak…What is your legacy? What are you proud of?

Mubarak: What I will leave behind is that I have been working for — in public service for 60 years. I took part — I saw action. I rebuilt the country after military action. We revamped the entire infrastructure of Egypt. We are improving education. We are expanding education. We are building universities. We are doing many, many other things.

Well, one of the most credible truth-tellers about Egypt is a new organization called Voices for a Democratic Egypt (VDE), on whose Board of Advisors sits one of Egypt’s most courageous human rights advocates -- Dr. Saad Eddin Ibrahim, founding chair of the Cairo’s Ibn Khaldun Center for Development Studies.

Ibrahim was arrested in 2000 for accepting a grant from the European Union and using the funds for “defaming Egypt’s national character.” He was imprisoned by the Mubarak regime, acquitted in a second trial, and now lives in exile in the U.S.

VDE aims to provide a forum for activism and a strong platform and voice for those striving for democratic transformation in Egypt. The day before Mubarak had his photo-op with Obama, VDE held a news conference in Washington to unveil a new report on what’s really happening in Egypt.

Here’s some of what the report had to say:

Egypt’s human rights record over the last two years has shown demonstrable regression on all fronts. A state of emergency has been in force since the assassination of President Anwar Sadat in 1981 that suspends basic constitutional protections, and was renewed in May 2008 despite presidential campaign promises to the contrary.

Prisoner Abuse

Dozens of torture cases were documented in 2008 and 2009, including several resulting in death. The Egyptian Organization for Human Rights (EOHR) has documented at least 40 cases of torture since 2008, at least 14 of which ended in death by police officers, more than five times as 2007. It is widely known that most torture cases go unreported and undetected and that torturers largely go unpunished except in a few highly publicized cases. And individual cases of torture at police stations continue to be reported with little to no response from the authorities in investigating incidents or holding the perpetrators accountable.

Press Freedom

Mubarak boasted to Charlie Rose about the growth in free media. But last year, the Arab League -- under the leadership of the Egyptian Minister of Media – voted for a new measure “regulating television, radio, and satellite media.”

That document is now paralleled by an Egyptian draft law to “regulate” visual, audio, and electronic media. It prohibits satellite television broadcasts that "negatively affect social peace, national unity, public order, and public morals," or "defame leaders, or national and religious symbols" of Arab states. Egypt's state-controlled Nilesat satellite subsequently dropped three channels that broadcast programs featuring government critics and victims of human rights abuses.

Then there’s the continuing harassment of journalists and owners of media outlets. Five newspaper editors were prosecuted for insulting President Mubarak and / or affiliates of the NDP (Mubarak’s National Democratic Party). Plainclothes police shut down the Cairo News Company (CNC) after it supposedly supplied Al Jazeera with images of anti-government protests. An Al Jazeera reporter was convicted of harming "the dignity of the country" with a documentary about torture in Egyptian police stations. Cairo security officers arrested several journalists and bloggers who used the social-networking website Facebook to call for strikes; and security officers in New Cairo stripped and beat one of them for the same activity.

The authorities in Alexandria arrested fourteen members of the "6 April Youth" group and jailed them for two weeks without charge after they sang patriotic songs and refused to disperse when ordered. Several bloggers have been arrested and “disappeared,” including a number affiliated with the April 6 movement, several Islamists, and a Christian blogger. Another blogger was incarcerated for over three months and subjected to torture, including electrical shock, suspension, mental abuse, and solitary confinement. And one other blogger continues to be incarcerated for charges of “insulting religion” and the president.

The Judiciary

Laws affecting a state of emergency and suspending normal constitutional protections continue to undermine the judiciary notably through: (1) imposition of “administrative” detention orders which supersede normal court decisions; (2) trial of civilians in military courts; (3) so-called Hisba lawsuits
brought by “private citizens” affiliated with the ruling National Democratic Party (NDP) against dissidents, writers, artists, etc.; and (4) parallel court systems created through emergency legislation, including state security courts and emergency courts that do not afford due process.

An example of prosecutions of civilians in exceptional courts was the trial of individuals in December 2008 who had participated in the April 6 national strike. In December 2008, the state security emergency court convicted 22 defendants from that strike. Trial in this exceptional court involves denial of due process as well as the right to appeal, and has been decried by Egyptian and international human rights organizations

Freedom of Association

There was continued repression of community organizers, NGOs, and individuals exercising their internationally-protected rights to freedom of association. Several NGOs were dissolved in 2007 and 2008 on arbitrary grounds and without due process, including for “endangering national security” and receipt of foreign funding.

Security officials blocked several meetings held by human rights organizations and acted to block international activities of NGOs.Egypt has also acted to block substantive efforts at the enforcement of human rights through participation in international bodies such as the UN Human Rights Council.

Religious Freedom

The climate for Egypt’s largest religious minority, Coptic
Christians, remained difficult. In February 2008, the Supreme Administrative Court ruled in favor of twelve defendants seeking to return to Christianity after previously converting to Islam, but ruled that their national ID cards should indicate that they “used to be Muslim,” which ensures continued hardship and discrimination against the converts.

Other religious minorities, including the Qur’anists, an offshoot of Sunni Islam, and Baha’is, continue to be the targets of discrimination. Baha’is are not allowed to build houses of worship or practice their faith publicly.

The government continues to stall on the passage of a national uniform law on construction of houses of worship that would remedy the hardship Copts face in building or repairing their churches. Copts – who represent about five per cent of the population -- continue to suffer from discrimination in public employment and are underrepresented in high leadership positions. And Coptic history continues to be conspicuously absent from educational textbooks.

Don’t you wonder why Charlie Rose failed to challenge so many of Mubarak’s answers? Like “Democracy is there in Egypt.” Or “There is freedom of speech.” Or “I respond to the demands of the people.” Or “We are doing reforms based on the demands of the people.” Or “We have a human rights commission…There have been many sentences against people who have breached human rights.”

I think the Washington Post had it just about right when it said in an editorial on the eve of the Mubarak-Obama meeting, “Middle East ‘realists,’ who seem to abound in the new administration, argue that Mr. Mubarak's help is needed to deliver an Israeli-Palestinian settlement and to contain pro-Iranian radical groups such as Hezbollah and Hamas. But it's likely that they, like many U.S. policymakers before them, will be disappointed by the disparity between Mr. Mubarak's words and actions. For several years now, the Egyptian regime has been promising Washington that it will broker an end to the rift between Hamas and the more moderate Palestinian Authority, end the smuggling of weapons to militants in Gaza and obtain the release of an Israeli soldier held hostage since 2006. It has failed on all three counts.”

WAPO concluded: “No amount of coddling by Mr. Obama is likely to change the behavior of Mr. Mubarak, who has 28 years of experience in deflecting U.S. initiatives…If Mr. Obama focuses his attention today on Mr. Mubarak and his dubious diplomatic contributions -- as opposed to the Egyptian people and their legitimate demands for political change -- the president will ignore the lessons of history.”

I hope Obama will not ignore the lessons of history. I hope he will not be so focused on Egypt’s potential to help with the Israeli-Palestinian debacle that he will put Mubarak’s widespread repression on a back burner somewhere. I am not proposing a do-over of the blunt-force-trauma approach of George W. Bush. I am suggesting that our aid dollars give us considerable leverage; yet there is a sense that Mubarak now thinks we need him more than he needs us.

That’s a betrayal of hundreds of very courageous Egyptian advocates for human rights and good governance who put their lives and livelihoods on the line every day. The least our president should do is recognize their existence, their sacrifice, and their contributions to “change we can believe in.”

We ignore them at our peril. Because, if participative democracy ever comes to Egypt, it will be these men and women who will drive it.

Meanwhile, as Krugman wrote, ““There’s a point at which realism shades over into weakness.”

The author served as a State Department and USAID consultant in Egypt and elsewhere in the Middle East and North Africa. He lived in Cairo for several years.

Friday, August 21, 2009

Arpaio: Still “America’s Toughest Sheriff.”

By William Fisher

The man who boasts he is “America’s Toughest Sheriff” -- and who is being investigated by the Department of Justice for civil rights violations -- this week added another lawsuit to thousands already pending against him.

The American Civil Liberties Union and the ACLU of Arizona are suing the sheriff of Maricopa County, Arizona, Joe Arpaio, and several of his 164 deputies for the illegal arrest and detention of a U.S. citizen and a legal resident.

The ACLU suit contends that Maricopa County Sheriff’s Office (MCSO) deputies racially profiled the father and son, Julian and Julio Mora, as they drove their pickup truck on a busy public road and illegally arrested and detained them, violating the U.S. Constitution's guarantee of equal protection under the law and prohibition on unreasonable seizures.

Harini Raghupathi, an attorney with the ACLU Immigrants' Rights Project, told IPS, “The unlawful arrest and detention that Julian and Julio Mora suffered highlights MCSO’s pattern of blatant disregard for the fundamental protections of the Fourth Amendment” of the U.S. Constitution. That provision bars unlawful searches and seizures without probable cause and a warrant.

“This country was founded on the freedom of individuals to go about their business without fear of being unlawfully stopped, picked up, or interrogated by the government. Here, we see the Moras were denied this most essential freedom,” she said.

According to the ACLU, Julian Mora was driving to work when, without provocation, an MCSO vehicle cut in front of him forcing him to stop abruptly. MCSO deputies then ordered the father and son out of their vehicle, then frisked and handcuffed them.

The complaint says, “Although the deputies had no reason to believe that the Moras had broken any law or were in the country unlawfully, they transported the Moras to Handyman Maintenance, Inc. (HMI), where MCSO was conducting a raid that morning. For the next three hours, the Moras were held at HMI, where they were denied food and water and forbidden contact with the outside world. They were not released until they were interrogated.”

It continues: “The ordeal was particularly humiliating for 66-year-old Julian Mora who, due to his diabetic condition, has difficulty controlling his bladder and had an urgent need to use the bathroom. MCSO personnel, however, rejected his repeated requests. Eventually, deputies escorted him outside where he was made to urinate in the parking lot. MCSO personnel later mocked his son Julio when he had to use the bathroom, because he had difficulty going with his hands still cuffed.”

Nineteen-year-old Julio Mora, a U.S. citizen, says, "To this day, I don't know why the officers stopped us out of all the cars on the road. We were treated like criminals and never told why. I was very scared. I never thought something like this would happen to me. Now I know it can happen to anyone, citizens too. I don't think it's fair."

Civil libertarians say the latest lawsuit is emblematic of anti-immigrant sentiment in the U.S. – arguably most intense in states that border Mexico – and of mixed signals coming from the Department of Homeland Security (DHS), whose Immigration and Customs Enforcement (ICE) unit has Federal responsibility for enforcing immigration regulations.

Under the administration of former President Bill Clinton, Congress passed a comprehensive immigration bill in 1996. The legislation contains a little-known section called 278(g), which authorizes local law enforcement to engage in raids on businesses believed to have employees who are undocumented, and to arrest and detain those workers.

During the George W. Bush presidency, use of 278(g) was aggressively ramped up. By August 2008, more than 840 officers in twenty states were deputized, and 70,000 immigrants detained. County sheriffs make up 62 percent of ICE partners.

In recent weeks, despite objections from civil rights lawyers and many law enforcement agencies, the Obama Administration’s new secretary of DHS, Janet Napolitano, indicated her intention to expand this program, though she says it will now focus on illegal immigrants who are known to be serious criminals. ICE asserts that the 287(g) program is not designed to crack down on overcrowded apartments, day laborer activities, or traffic offenses.

The Bush Administration granted the largest and most powerful 287(g) contract to Sheriff Arpaio, despite the fact that jails under his supervision cost his county over $43 million in death and abuse lawsuits. Arpaio is accused of housing prisoners in tents, making them appear before media TV cameras wearing pink underwear, shackling them in chain gangs, and trespassing into neighboring jurisdictions to unlawfully dump immigrants at the border for deportation. Traffic violators and day laborers are Arpaio’s main targets.

Eleven agencies in the country have signed the new so-called 287(g) agreement, while 66 agencies operating under the old program — including Arpaio's — were given 90 days starting July 10 to decide whether they want to agree to follow the revamped program.

The new regulations require Arpaio to clear plans for immigration sweeps in advance with ICE and coordinate the release of information to the news media.

Arpaio, who called the new program “an amnesty for illegal immigrants,” has not yet indicated whether he will accept DHS’s new terms. He said, "I'm not going to bend to the federal government, I'm going to do my job. I don't report to the federal government, I report to the people." He has been reelected multiple times.

But, even as he considered the new arrangements, Arpaio launched a three-day immigration sweep east of metro Phoenix on July 24. Deputies arrested 74 people; 25 of them were illegal immigrants.

The Associated Press reports that this sweep was the latest of 10 Arpaio has conducted in the last two and a half years. Many were held in heavily Latino areas in metropolitan Phoenix, with deputies stopping drivers for traffic violations.
The sweeps generated protests of racial profiling and have led to a Justice Department investigation of Arpaio. Arpaio said the people who were pulled over were approached because deputies had probable cause to believe they had committed crimes. The raids have not resulted in the conviction of any employer for an employer sanctions violation.

But even if Arpaio declines to sign on to the new DHS regulations, he has made it clear that intends to continue cracking down on illegal immigration by enforcing more limited Arizona immigration laws.

Arpaio has a long history of conflict with other law enforcement and judicial authorities. As reported by William Finnegan in The New Yorker magazine, “A federal investigation found Arpaio’s deputies used ‘stun guns’ on inmates strapped into restraint chairs; some have died in those chairs. One lawsuit brought by a dead prisoners’ family ended in an $8 million settlement after “a surveillance video that showed fourteen guards beating, shocking, and suffocating the prisoners, and after the sheriff’s office was accused of discarding evidence, including the crushed larynx of the deceased.”

From 2004 through November 2007, Arpaio was the target of 2,150 lawsuits in U.S. District Court and hundreds more in Maricopa County courts -- 50 times as many prison-conditions lawsuits as the New York, Los Angeles, Chicago, and Houston jail systems combined.

Arpaio is also named in a class-action lawsuit that centers on the treatment of pretrial detainees. The suit claims Arpaio is violating the constitutional rights of those detainees.

Thursday, August 20, 2009

The Constitution Lives!

By William Fisher

A federal court this week ruled for the first time that the U.S. Government cannot freeze an organization's assets under a terror financing law without a warrant based upon probable cause and without telling the organization the basis for its action and a meaningful opportunity to defend itself.

If the decision of U.S. District Judge James G. Carr is upheld, it will strip the government of a key weapon in the broad counter-terrorism authority claimed by the administration of former President George W. Bush following the attacks of September 11, 2001.

The ruling came Tuesday in a lawsuit originally filed in November 2008 by the American Civil Liberties Union, the ACLU of Ohio and several civil rights attorneys on behalf of KindHearts for Charitable Humanitarian Development, Inc., a charity based in Columbus, Ohio. Lawyers from the Obama Justice Department defended the position of their predecessors.

Georgetown University law professor David Cole, who is co-counsel in the case, called the government’s approach “a blunt sledgehammer.”

He told us, "The government has an undoubtedly legitimate interest in stopping the funding of terrorist activity, but the authority used against KindHearts and so many other charities is a blunt sledgehammer that permits the government to shut down charities indefinitely without any finding of wrongdoing, without any notice of the basis for its actions, without any prior judicial approval, and without any meaningful opportunity for the charity to defend itself.”

He added, “Judge Carr's decision recognizes that such unchecked power cannot be squared with the Constitution's Fourth and Fifth Amendments, which were designed, in the wake of King George's legendary abuses, to restrain official power to seize property arbitrarily."

The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze KindHearts' assets three-and-a-half years ago without a warrant, notice or a hearing, based simply on the assertion that OFAC was investigating whether the charity should be designated as a "specially designated global terrorist (SDGT)."

In Tuesday's ruling, Judge Carr found that the administration must obtain a warrant based on probable cause before seizing an organization's assets, citing judicial precedent holding that the executive branch's "domestic actions – even when taken in the name of national security – must comport with the Fourth Amendment."

Judge Carr also ruled that OFAC violated the Fifth Amendment's guarantee of due process because it "violated KindHearts' fundamental right to be told on what basis and for what reasons the government deprived it of all access to all its assets and shut down its operations."

KindHearts had never been found to have engaged in any wrongdoing and had never been designated an SDGT, yet it was effectively shut down since OFAC first froze its assets on February 19, 2006. As a result of the freeze pending investigation, it would have been a crime for anyone to do any business with KindHearts and the charity would have no access to its own property.

KindHearts provided detailed information to the government about its operations and requested that the government specify its reasons for blocking its assets pending investigation. But the government ignored KindHearts' submissions and repeatedly delayed in responding to its requests. The court found that the government's actions were fundamental violations of due process.

Judge Carr ordered a hearing for September to determine how to correct what he said were constitutional flaws in the government’s case. Justice Department lawyers are reviewing the opinion, but it is unclear whether they will appeal the decision to a higher court.

The Treasury Department alleged that KindHearts provided financial support for Hamas and worked with this group in the West Bank of Israel and in Lebanon to support terrorist activities.

While KindHearts was never named a “specially designated global terrorist,” Judge Carr said the government “has effectively shut KindHearts down” by freezing its assets and designating its as criminal.

The organization was unable to use its own resources to pay for a legal defense. Judge Carr said OFAC was “arbitrary and capricious” in considering whether the group could pay its lawyers.

He rejected the position of the Justice Department that the Fourth Amendment to the U.S. Constitution -- which protects against unreasonable searches and seizures – was trumped by the national security authority of the President. He called the Fourth Amendment “a bulwark against the abuses and excesses of unchecked government authority.”

Judge Carr was also critical of the limited information provided to the charity by the Treasury Department. He said this information came only after “long, unexplained and inexplicable delay” and repeated requests from the group’s lawyers.

KindHearts' founders established the charity in 2002 – after the government shut down a number of other charities – with the express purpose of providing humanitarian aid both abroad and in the United States in full compliance with the law. Despite the efforts KindHearts took to implement OFAC policies and even seek its guidance, OFAC froze about $1 million of KindHearts' assets in February 2006.

Since 9/11, the government has shut down eight charitable organizations in the U.S. and frozen the assets of hundreds others in other countries. 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.

The USA PATRIOT Act of 2001 enhanced OFAC’s ability to implement sanctions and to coordinate with other agencies by clarifying OFAC’s authorities to block assets of suspect entities prior to a formal designation in ‘aid of an investigation.’

Later amendments to the PATRIOT Act authorized submission of classified information to a court, in camera and ex parte, upon a legal challenge to a designation.

The Treasury Department says, “This new PATRIOT Act authority has greatly enhanced our ability to make and defend designations by making it absolutely clear that OFAC may use classified information in making designations without turning the material over to an entity or individual that challenges its designation.”

But civil libertarians contend that changes in the law have greatly enhanced the Department’s ability to target and disable organizations and individuals based primarily on suspicion and not on proven evidence of wrong-doing as would be required in a court of law for a conviction of terrorism.

Attorney 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.”

Wednesday, August 19, 2009


By William Fisher

In response to a lawsuit brought by the American Civil Liberties Union (ACLU), the U.S. Department of Homeland Security (DHS) revealed yesterday that the government had failed to disclose eleven more deaths in immigration detention facilities.

In April, DHS officials released what they called a comprehensive list of all deaths in detention. That list included a total of 90 individuals. With yesterday’s announcement, the government has now admitted to a total of 104 in-custody deaths since fiscal year 2003.

But the ACLU is continuing to express doubt that they now have a complete tally of those who have died while in ICE custody.

David Shapiro, staff attorney with the ACLU National Prison Project, told us, "Even after the government's announcement yesterday we still can have no real confidence that each and every death has been accounted for.”

Noting that the government announced last week what it called sweeping plans to overhaul the immigration detention system, Shapiro added, “No overhaul can be complete without intentional efforts being made to infuse accountability and transparency into the system.”

He said, “From our perspective, that would come in the form of legally binding standards governing basic levels of care and conditions inside immigration detention facilities. Simply having the government consolidate its oversight is not enough - there have to be mechanisms in place to hold the government accountable because, as we've seen, their track record in terms of immigration detention to date is not good, to say the least.”

"Today's announcement confirms our very worst fears," he said.

The ACLU sued DHS, ICE and the DHS Office of the Inspector General (OIG) in June 2008 for failing to turn over thousands of public documents in their possession relating to the deaths of immigration detainees held in U.S. custody. The ACLU filed the lawsuit after repeated failures by DHS officials to release those documents in response to requests for critical information about the deaths of dozens of people in immigration detention.

And in another FOIA request, submitted by the ACLU to DHS in 2007, the ACLU sought information about whether ICE – or any independent monitoring agency – adequately tracks deaths of immigration detainees, who are often housed in county jails around the country alongside criminal detainees, or in one of numerous immigration detention facilities managed by private prison companies.

ICE owns and operates its own detention facilities, and also rents bed space from county and city prisons and jails. ICE locks up about 32,000 civil immigration detainees each day -- 400,000 a year. Many of these are pursuing their immigration cases in the courts.

The ACLU says deficient medical care is believed to be a leading cause of death in immigration detention, and is the number one complaint the organization has received from ICE detainees. The ACLU filed a lawsuit in 2007 against the San Diego Correctional Facility (SDCF), an ICE facility run by Corrections Corporations of America, Inc. (CCA), the country's largest for-profit correctional services provider. In its lawsuit, the ACLU challenges medical care policies and denial of needed treatment by ICE and the Division of Immigration Health Services, which it says has led to suffering and death among detainees.

At the immigration detention center in Basile, Louisiana, more than 60 detainees have recently been on hunger strikes to protest conditions Authorities there retaliated by putting the hunger strikers in solitary confinement.

And the Los Angeles detention center has been another 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. I charges that some of the facilities to which detainees are shuttled have similar gross deficiencies: Detainees are not permitted to 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.

ICE's city, county and private prisons and jails also house serious criminals. The ACLU says that immigration detainees are mixed in with the general prison population, housed in penal-like facilities for months and sometimes years, with virtually no due process and often without the most basic safeguards such as hearings to assess the need for continued detention. These include asylum seekers, legal immigrants, victims of human trafficking, and immigrants with no criminal records.

The Wall Street Journal has reported that private, for-profit prison companies are preparing for a wave of new business as the economic downturn makes it increasingly difficult for federal and state government officials to build and operate their own jails.

The Federal Bureau of Prisons and several state governments have sent thousands of inmates in recent months to prisons and detention centers run by Corrections Corp. of America, Geo Group Inc. and other private operators, as a crackdown on illegal immigration, a lengthening of mandatory sentences for certain crimes and other factors have overcrowded many government facilities.

The Obama Administration’s newly appointed official supervising ICE, John Morton, said last week that he wanted to turn immigration detention into a "truly civil detention system," one focused on safely and humanely holding people accused of civil immigration violations until they are deported or released. The announced reforms include creating offices and advisory boards to focus on medical care and the management of centers, reviewing contracts with private prisons and local jails, and installing managers at the 23 largest centers to make sure complaints are heard and problems fixed.

He said Centers would face random inspections. Community groups and immigrant advocates would be invited to offer advice and comment. And the government would stop sending parents with children to a notorious prison near Austin, Texas, as it seeks alternatives to the Bush-era tactic of putting whole families behind bars.

Congress is also expressing interest in the immigration detention issue. Legislation has been introduced in both the House and the Senate that would change the laws governing immigration detention and increase oversight and enforceability of detention standards.

Sunday, August 16, 2009

The Five Horsemen of the Apocalypse: Limbaugh. Beck. O’Reilly. Hannity. Dobbs.

By William Fisher

Rush Limbaugh. Glenn Beck. Bill O’Reilly. Sean Hannity. Lou Dobbs: Five now-household names made rich and famous by those wonderful folks who brought us cable and talk radio.

All were gung-go for that grotesquely-misnamed government euphemism known as “enhanced interrogation techniques.” All were joined at Dubya’s hip as cheerleaders for “Democratizing” Iraq. All were megaphones for the CIA’s “black sites” and “extraordinary renditions.” And all were eager to tell us all about the superb cuisine and exquisite personal service accorded the guests at GITMO-by-the-Sea.

Until the lies and uselessness of these misadventures became so obvious that they lost their ratings value. Another headline-grabber had to be found!

And, Eureka, our five horsemen found their Holy Grail: A new cottage industry called:


Undocumented workers were every bit as evil as Al Qaeda. Terrorists were crossing our borders with “dirty bombs” concealed under their fruit-pickers’ farmhand garb and waiters’ uniforms. IEDs were being secreted among the tools they brought in to build our homes.

They pushed for 3,000-mile-long fences between us and Mexico. They attacked the Department of Homeland Security for failing to enforce our laws of entry. They proposed sending the National Guard to our Southern border. They opposed public education and health care for the undocumented, including their children – many of whom were American citizens, born in the U.S.A. They backed The Minutemen’s brand of vigilante justice. They cheered when the government raided workplaces and took fathers and mothers away from their families. They cried out for the arrest and “expedited removal” of some twelve million illegals, though they never quite got around to telling us how they were going to do that and what effect that might have on the U.S. economy.

They perpetuated the fear-mongering myths of the RNC and the Yahoos on the wingnut right.

Like this one:

Myth: Immigrants are driving up our health care costs and bankrupting our emergency rooms because they have no insurance.

Fact: Non-citizens are significantly less likely to use emergency room services than U.S. citizens. Insured immigrants have much lower medical expenses than insured U.S.-born citizens. Insured immigrants' per-person medical expenditures are 1/2 to 2/3 less than the U.S.-born with similar characteristics. Recent immigrants constitute 5% of the non-elderly adult population, but are responsible for 2% of adults' total health care costs, making their share disproportionately low. Four out of five people in America who have no insurance are U.S. citizens. U.S. citizens make up the majority of the uninsured (78%), while immigrants account for 22% of the non-elderly uninsured.

But predictably, in thousands of hours of bloviating on TV and radio, not a single one of these five horsemen has ever uttered the first word about what is arguably the most shameful aspect of the immigration issue. That word is:


But then, why should we have expected to ever hear that word? Hell, if black sites were hunky-dory with these guys, why not for other Enemies of the State?

And what are those detention conditions they never mention?

ICE, the Immigration and Customs Enforcement agency – part of the sprawling and dysfunctional Department of Homeland Security -- owns and operates its own detention facilities, and also rents bed space from county and city prisons and jails. ICE locks up about 32,000 civil immigration detainees each day -- 400,000 a year.

Most of these are pursuing their immigration cases in the courts, if they can wangle access to a lawyer. This is a system that puts little children in prison scrubs, that regularly denies detainees basic needs, like contact with lawyers and loved ones, like soap and sanitary napkins. It is a system that incarcerates whole families. It is also a system that separates parents from children. It is a system where people who are not dangerous criminals – in case you don’t know, alleged immigration violations are civil, not criminal, offenses -- get injured, sick and die because of indifference or the lack of availability of timely medical care. It is a system that has produced more than 90 detainee deaths since 2003.

ICE’s city, county and private prisons and jails also house serious criminals. Yet immigration detainees -- including asylum seekers, legal immigrants, victims of human trafficking, and immigrants with no criminal records -- are mixed in with the general prison population. They are stashed away in penal-like facilities for months and sometimes years, with virtually no due process and often without the most basic safeguards -- like hearings to assess the need for continued detention.

Many illegal immigrants who will be deported cannot leave the U.S. due to the fact that their country of origin will not accept them, so they must stay in the immigration jails for years or even life until a country will agree to take them. Some immigrants cannot go back to their original country out of fear of persecution and death. So we keep them locked up.

At the T. Don Hutto detention center in Texas, 26 immigrant children between the ages of one and 17 were detained with their parents who, in almost all cases, were seeking asylum.

More than 60 detainees have recently been on hunger strikes to protest conditions at the immigration detention center in Basile, Louisiana. Authorities there retaliated by putting the hunger strikers in solitary confinement.

In California, detainees are held in a private facility in San Diego, a government-run center in El Centro and at 13 local jails throughout the state. There has been a ton of well-documented violations of normal standards for legal and family visits at both San Pedro and at a Lancaster facility run by the Los Angeles County Sheriff's Department.

Among the findings of one reliable study, there were that at least 41 facilities did not give detainees the minimum number of hours and days of recreation required by their own standards and that 19 centers did not offer any outdoor recreation time at all. The report also found deficiencies in access to phones and legal information. For example, at least 29 detention facilities had no law library, and 30 centers failed to provide reasonable privacy for legal calls. In addition, detainees were often placed in solitary confinement without justification.

We’re not talking about some bizarre fiction like “Death Panels.” You just can’t make this stuff up!

Think I’m kidding? Read on.

One 23-year-old was found not guilty of transporting explosives during a road trip with a friend who had packed model rocket propellants in the trunk of his car. But three days later, in a Wal-Mart parking lot in Tampa, he was arrested again by immigration authorities. The new charge was that he “is engaged in or is likely to engage in” terrorist activities, a violation of his legal residency in the U.S.

A 26-year-old Chinese woman told Amnesty researchers that she fled to the U.S. after she and her mother were beaten in China for handing out religious fliers. She arrived in America seeking asylum in 2008 and was detained at the airport, then transferred to a county jail. No one told her why she was being held. Without explanation, ICE ordered her to remain in detention unless she could pay a $50,000 bond, which neither neither her relatives in the U.S. nor her family in China was able to raise. After almost a year in detention, they were able to post the bond and win her release.

Wait. It gets worse.

One young man was deported and then caught when he tried to sneak back in over the Canadian border. He was convicted and spent five years in jail. As he was about to be released, a prison official looked at his file and discovered that he was a natural-born U.S. citizen!

How did this happen? Well, it’s been happening for many years. Since back when ICE was the INS – the Immigration and Naturalization Service. But, after 9/11, Bush officials ramped it all up, cobbling together a network of federal centers, state and county lockups and private, for-profit prisons. They needed lots of beds to warehouse the tens of thousands of people its raiders and local police were flushing out of the shadows. Thanks to reports on the secretive system, particularly those by Nina Bernstein in The New York Times, folks who were paying attention learned that detainees were being locked up and forgotten and denied access to lawyers and their families. They languished, sickened and died without medical attention.

And speaking of the New York Times, please note that it’s one of the few MSM newspapers that have published anything on this issue. Others include the Los Angeles Times, the Washington Post, and the New Orleans Times-Picayune.

What is the Obama Administration doing about this outrage? Is our President is still committed to his campaign promises to "secure our borders, fix our dysfunctional immigration bureaucracy, increase the number of legal immigrants in order to keep families together, and bring undocumented immigrants out of the shadows.”

Well, the President has told us comprehensive immigration reform will have to wait until next year. But, meanwhile, the Obama administration has refused to promulgate regulations that would require immigration detention facilities to adhere to basic standards of care. It rejected a petition by former detainees and civil rights organizations requesting a rule-making procedure in the wake of public reports detailing the humanitarian crisis in the facilities.

The new overseer of ICE, John Morton, said he wanted to turn immigration detention into a “truly civil detention system,” one focused on safely and humanely holding people accused of civil immigration violations until they are deported or released. The announced reforms include creating offices and advisory boards to focus on medical care and the management of centers, reviewing contracts with private prisons and local jails, and installing managers at the 23 largest centers to make sure complaints are heard and problems fixed.

He said Centers would face random inspections. Community groups and immigrant advocates would be invited to offer advice and comment. And the government would stop sending parents with children to a notorious prison near Austin, Texas, as it seeks alternatives to the Bush-era tactic of putting whole families behind bars.

DHS Secretary Janet Napolitano told the Christian Science Monitor that the administration is not waiting for Congress to revamp immigration detention programs. "These major changes in detention ... will result in a system that deals with detainees in an efficient, transparent, and humane manner," she said.

Doubtless we should find some encouragement in these proposed changes. At least, our government has acknowledged that we have a problem. But don’t break out the champagne just yet. These kinds of promises have been made before, and nothing’s changed. My online friend, Mark Dow, wrote a book on the subject – American Gulag: Inside U.S. Immigration Prisons. That was in 2004, but what he described could have happened this morning.

And even if the DHS is now serious, the changes they’re proposing will take many years to achieve.

Maybe it will help that Congress is also getting into the act: Legislation has been introduced in both the House and the Senate that would change the laws governing immigration detention and increase oversight and enforceability of detention standards. But given the lawmakers’ cluttered calendar, don’t hold your breath waiting.

Meanwhile, the Five Horsemen of the Apocalypse are using the current debate on health care reform to whip up more of their toxic brew. Daphne Eviatar of The Washington Independent reports that, “As the heat gets turned up on the health care reform debate, anti-immigrant activists are using the issue to whip up fear and anger toward immigrants, portraying them as a costly and burdensome drain on any taxpayer-supported U.S. health care system. Angry questions about illegal immigrants getting health care at town hall meetings across the country have put many lawmakers on the defensive.”

Why are we not surprised?

And why don’t the American people know more about what’s being done in our name?

There are a number of explanations, but they all come down to power, money, politics, and fear. Immigration has become one of the third rails of American politics. With their principles totally eclipsed by the 2010 mid-term elections, politicians are terrified by the tsunami of jingoistic populism currently sweeping our country. (Witness, the “death panels” town halls.) At the same time, their political skins are vulnerable because they know that Hispanics are the country’s fastest-growing voter demographic – and Hispanics happen to be the largest slice of those in ICE custody. Maybe they can console themselves in the knowledge that illegal immigrants and resident aliens can’t vote.

Also, detention is but a sub-set of Immigration, writ large. Most lawmakers think it’s too far down in the weeds for the American public to grasp.

Then too, the playing field ain’t exactly level. Advocates for changes in our detention system have limited clout and little money. And they’re being opposed by interests that have lots of clout and virtually unlimited money. Included is the well-organized lobbying apparatus opposed to any version of immigration reform. Also included are the companies that have reaped a post-9/11 profits bonanza by operating private for-profit prisons.

Finally, the detention issue has been marked by a series of head-scratching decisions by the Obama Administration. While the DHS’s Napolitano was announcing sweeping future reforms in ICE’s detention practices, she was also committing to an expansion of a little-known statutory provision that allows DHS to deputize local law enforcement authorities to arrest and detain alleged immigration violators. These “partnerships” now exist all over the country.

That has resulted in a highly complex legal specialty being administered by cops who have no knowledge or experience in this discipline – and siphoning off people-power and resources needed to do the important work cops are trained to do. That program happens to be opposed by most law enforcement authorities in the U.S.

But not all. Some think it’s just dandy. That’s how we end up with people like Joe Arpaio, the self-proclaimed “Toughest Sheriff in America,” who is one of the DHS’s “partners” in this program. Arpaio and his merry men are busily rounding up anything that moves in Maricopa County (Pheonix, etc.), Arizona – while at the same time being investigated by the Justice Department for violating his victims’ civil rights.

But, lest I leave you in a state of clinical depression, let me sign off here on a slightly more encouraging note.

Lou Dobbs, one of the “Five Horsemen,” has recently experienced some kind of epiphany (or else he finally got the memo from his bosses at CNN). After his endless tirades against immigration and immigrants – spiced more recently by the large megaphone he’s handed the “birthers” and the “deathers” – Dobbs has begun what is being billed as a year-long series of reports on the health care systems of other countries in the world.

I watched the first of these last week – and, lo and behold, here was Lou Dobbs, actually sounding like a journalist. And he wasn’t just playing a journalist on TV; his report was mostly solid and factual. He even had a few positive things to report about the single-payer system. For a change, he spoke as though he respected the intelligence of the American people.

Well, if Lou Dobbs can get born again, maybe there’s still a sliver of hope for Hannity, O’Reilly, Limbaugh and Beck.

Let us pray!

Jason Leopold, Editor-in-Chief of The Public Record, contributed research for this article.

Sunday, August 09, 2009

Sotomayor: Umpires Strike Out

By William Fisher

With Sonia Sotomayor’s swearing in over the weekend as an Associate Justice of the U.S. Supreme Court, legal experts are aggressively debating what was learned from her four days of grueling testimony before the Senate Judiciary Committee – and whether these hearings are instructive or merely Capital Hill’s version of Kabuki Theater.

The nomination of the court’s first Latina member – and only the third woman to serve on the nation’s highest court -- was confirmed by the U.S. Senate last Friday by a vote of 68-31, with all Democrats voting “aye and nine Republicans bucking their Party’s line to do likewise. The 55-year-old nominee was sworn in by Chief Justice John Roberts on Saturday.

The widely accepted morning-after view among legal scholars is that Sotomayor’s confirmation hearings were more about politics, campaign endorsements, and financial contributions than about the business of judging.

Amidst a torrent of thinly veiled Republican accusations that her off-the-bench speeches suggested she would be a “judicial activist” on the high court – tempered only by their fear of offending Hispanic voters -- she was questioned about only two or three actual cases.

From the Democrats, there were largely softball questions, punctuated by lavish praise for Sotomayor's personal story and her "mainstream" legal philosophy.

Evidently chagrined at being unable to hit a home run with cases alone, Republican Senators turned to the nation's passtime. The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

But a number of legal scholars contacted by IPS expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?

Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court’s decisions, wrote that the Senators used the phrase “balls and strikes” at least 11 times, and “umpire” or “umpires” 16 times.

For example, Senator Jeff Sessions, the highest ranking Republican on the Judiciary Committee, said that if a judge had a personal or political agenda, “Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.”

But Senator Sheldon Whitehouse of Rhode Island countered with, “I particularly reject the analogy of a judge to an ‘umpire’ who merely calls ‘balls and strikes’. If judging were that mechanical, we would not need nine Supreme Court Justices”
His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed.

The civil rights category alone – and there are dozens of categories -- provides more than ample illustrations.

For example, in a civil rights case called Dred Scott v. Sandford in 1857, the Court ruled that people of African descent imported into the United States and held as slaves were not protected by the Constitution and could never be citizens of the United States. But later the Court ruled that at least one part of the Dred Scott decision had already been reversed in 1868 by the Fourteenth Amendment, which gave equal protection of the law to.

But perhaps the most telling example in the civil rights sphere is the Court’s ruling in Plessy v. Ferguson in 1886. In a vote of 8 to 1, the justices ruled that states could force railroad companies to exclude African-Americans from first-class, or "ladies," cars. The case deprived African Americans of equal protection under the 14th Amendment and gave judicial sanction to the doctrine of “separate but equal.”

Legal experts ask, “If they were all umpires, why did one of them – the only Southerner and a slave-owner himself – dissent?

It would not be until the mid-20th Century that such decisions would begin to be reversed, the most sweeping being a unanimous 1954 landmark ruling in a case called Brown v. Board of Education of Topeka. Striking down the Plessy ruling, the Court held that "separate but equal has no place " in the field of public education.” They said separate educational facilities are “inherently unequal." The opinion spurred a social revolution.

A number of prominent legal experts have weighed in with us on the “balls and strikes” analogy.

Chip Pitts, a Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, “Notwithstanding the current public triumph of the ‘umpire’ metaphor, judging usually isn’t a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change -- especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts -- cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice.”

Marjorie Cohn, president of the National Lawyers Guild, told us, “Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best - quite effectively - to shape the Court into a reliable tool to further the right-wing agenda.”

And Prof. Peter M. Shane of the Ohio State University law school said, “The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous.”

He told us, “The right-wing has so successfully animated the public fear of ‘judicial activism’ that any candid admission that the act of judging involves actual judgment is regarded as politically fraught. This is especially regrettable because the GOP's only definition of ‘judicial activism’ seems to be judicial decision- making at odds with the Republican Party platform."

But criticism of the baseball analogy is not limited to progressives. Bruce Fein, a Conservative who served in the Department of Justice under President Ronald Reagan, told us: “The umpire metaphor of the task of a Supreme Court Justice is juvenile. There is no moral or philosophical element in calling balls or strikes -- no more so than in calculating the circumference of a circle… It is ridiculous, but once one acknowledges that, what role remains for the Senate?”

Others are also questioning the future role of the Senate. Shayana Kadidal of the Center for Constitutional Rights is among them. He told us, “In many other countries, the top judges are civil service appointees who’ve worked their way up the ladder since their graduation from law school, and thus all have very long judicial records to examine. But beyond looking at their track records, the review process doesn’t involve any questioning about judicial philosophy and beliefs.”

For decades, Supreme Court nominees didn’t appear for Senate grillings. But that was before television. Today most agree that it is unrealistic to expect politicians to give up a golden opportunity to go before the cameras for headline-making political theater.

Thursday, August 06, 2009

Wife of “Disappeared” Appeals to U.N.

By William Fisher

Charging that the U.S. government was complicit in the forced disappearance of an influential Muslim scholar four years ago, human rights groups in the U.S., the U.K., and Switzerland have asked the U.N. to investigate.

In a letter to the U.N., the organizations say Mustafa Setmariam Nassar, a Spanish citizen, was arrested by Pakistani officials and handed over to U.S. officials in October 2005 and has not been heard from since.

The letter was sent to the U.N. Special Rapporteur on Torture, Manfred Nowak, the U.N. Special Rapporteur on the Promotion of Human Rights While Countering Terrorism, Martin Scheinin, and the U.N. Working Group on Enforced or Involuntary Disappearances. It was signed by the American Civil Liberties Union (ACLU), the London-based legal charity Reprieve, and Alkarama in Geneva.

In June 2009, in response to an ACLU request for information about Nassar's whereabouts, the U.S. Central Intelligence Agency (CIA) said it could "neither confirm nor deny the existence or nonexistence of records" concerning Nassar.

Steven M. Watt, staff attorney with the ACLU Human Rights Program, told us, “Mr. Nassar's wife and children just want to know if he is still alive and where he is." He said that "Requests for information about his forced disappearance, nearly four years ago, have been ignored by the U.S. government, and his family now has no other choice but to turn to the international community for assistance in their quest.”

He added, “The CIA should be held accountable. It should allow his family to know what happened to him and where he is. Or deny that it had any involvement in his disappearance."

The letter asks the U.N. to raise Nassar's case with the U.S. government and other governments that may have assisted the U.S. in Nassar's disappearance or may have information that could assist in locating him.

The organizations acknowledge that information about Nassar's disappearance is scarce. But they say “the known details suggest he was a victim of the unlawful extraordinary rendition" program, which enabled the U.S., with the assistance of other governments, to kidnap and transport foreign nationals suspected of terrorism to secret overseas detention facilities for interrogation and torture.

Official U.S. documents and media reports indicate that the U.S. had long been interested in capturing Nassar, suspecting him of involvement in certain terrorist acts but never charging him with a crime. In January 2005, months before his reported capture in Pakistan, the U.S. Embassy in Pakistan announced a $5 million reward for information leading to Nassar's capture, which was withdrawn around the time of his reported capture.

The U.S. National Counterterrorism Center confirms Nassar's capture in November 2005, and media reports indicate that Nassar was later held for a time at a U.S. military base on the British-owned island of Diego Garcia in the Indian Ocean.
The Reprieve group also demanded the British government reveal details of the secret illegal detention of what it called the ‘ghost’ prisoner on Diego Garcia.

Reprieve says Nassar was sent to Syria, where he was “held incommunicado in shocking conditions and almost certainly tortured.”

The group added, “The U.K. shares responsibility for Nasser’s disappearance because of its complicity in his ‘ghost’ detention on the Diego Garcia and elsewhere.
It has written to the U.K. government on behalf of Nasser’s wife to “demand the U.K. fulfils its legal obligation to investigate his disappearance.”

Reprieve’s Director, Clive Stafford Smith, said: “Enforced disappearance is a crime most associated with ruthless South American dictatorships, yet here we have the U.S. and British governments embroiled in the same dirty deeds. Kidnapping is a crime in anyone’s language, and it is about time that powerful governments are held to account for their crime against Mustafa Nasser.”

Diego Garcia has featured prominently in at least two other current cases. In one, Reprieve is suing the U.K. government on behalf of British resident Binyam Mohamed, a recently released Guantanamo detainee, for allowing the island’s airbase to be used to facilitate Mohammed’s “rendition,” by landing to refuel.

Mohammed was first rendered from Pakistan to prison in Morocco, and finally to Guantanamo. The group claims he was tortured in all three locations.

David Miliband, the British Foreign Secretary, has argued before the U.K. High Court that it must suppress evidence of torture because the U.S. has threatened to discontinue sharing intelligence with the British if it discloses such evidence. The specific evidence in this case is a seven-paragraph document that Reprieve says has no intelligence or national security value but includes American admissions that they tortured Mohammed.

The High Court Justices said that such a threat was not based in law. "I mean, it is an exercise of naked political power," Lord Justice Thomas said, adding, "That is not constitutional, it is the use of naked political power." Under British law, it is a criminal offence to suppress evidence of torture.

In the second case, Mohammed and four other now-released Guantanamo detainees are suing a Boeing Company subsidiary, Jeppesen Dataplan, for knowingly assisting in Mohammed’s rendition by providing the CIA with logistical support for the flight that landed on Diego Garcia for refueling.

In the Nassar case, responding to a June 2009 request from a Spanish judge for information on Nassar's whereabouts, the U.S. Federal Bureau of Investigation (FBI) said it was not holding him in the United States but did not address whether he was being held in U.S. custody elsewhere. Asserting that the information is classified, the U.S. government has also refused to answer direct requests for information about Nassar's whereabouts made by his wife, Spanish citizen Helena Moreno Cruz.

"I have been bringing up four children without their father for nearly four years now. They keep asking about dad and I have no idea what to tell them anymore – I don't even know if their father is still alive, she said.”

"If my husband is suspected of doing anything wrong, he should get his day in court. If he isn't, he should be let go. No one deserves to be treated like this,” she added.

Nassar, a 42 year-old Spanish citizen of Syrian origin, is considered an influential Islamic theorist and intellectual. He has written a number of books and articles on Islam and jihad.

Law enforcement authorities in the U.K., Spain, and the U.S. have long suspected Nassar of having been involved in a number of terrorist acts, including the September 11 2001 attacks against the U.S., though he has never been charged with a crime.

In the early 1980s, Nassar fled Syria following his involvement in a failed attempt by the Muslim Brotherhood to overthrow the government then in power.

The letter to the U.N. says the former U.S. administration of George W. Bush pursued Nassar at least since November 2004, when it offered a $5 million reward for information relating to his capture as part of its “Rewards for Justice” program. But it says that around the time of his reported capture, the government removed Nassar’s name from the “Rewards for Justice” list, and withdrew the $5 million reward for information leading to his arrest.