Thursday, September 24, 2009

The Torture Memos: Rationalizing the Unthinkable -- A Must-Read.

By William Fisher

For me, David Cole has long been the gold standard for his exquisite knowledge of our Constitution and his relentless dedication to its values.

So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.

Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society.

This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”

As we all now know, that sloppy and craven legal analysis contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.

Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.

Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.

Exhibit A is John Yoo, now a law professor at the University of California's law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.

Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: "Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage," Carter says. He promises to never "do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual."

“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration's national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the '70s, and endangering the nation.”

Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”

“Our nation's leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:

“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”

And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck —it is because of the hard work of members of the military and our intelligence agencies.”

“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”

“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq's lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida's leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.

“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.

But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.

Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to -- the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.

I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.

Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.

For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.

John Yoo is far from any lawyer’s lawyer.

(“The Torture Memos: Rationalizing the Unthinkable”, by David Cole, Published by The New Press, September 8, 2009.)

Monday, September 14, 2009

How New Are Bagram’s “New Rules”?

By William Fisher

Human rights activists and legal experts reacted swiftly today to disclosures that the U.S. Government is planning to introduce new measures they claim would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.

Their views range from cautious optimism to total condemnation.

There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.

The new guidelines expected to be issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.

Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”

She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military's own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”

“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.

“The idea of assigning a non-lawyer 'personal representative' who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn't result in fair proceedings from the failed experiment at Guantanamo -- called the "Combatant Status Review Tribunals" (CSRTs) -- which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”

A more hopeful note was struck by Sahr MuhammedAlly, Senior Associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”

But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don't provide.”

She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.

He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”

He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”

He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”

In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram.

“The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel -- they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”

Friday, September 11, 2009

Some GITMO Prisoners Fight Release

By William Fisher

As 13 prisoners held at the U.S. naval Base at Guantanamo Bay, Cuba, appeared set to finally win their freedom, others are asking their release to be deferred.

The problem is that some of those cleared for release fear they will be tortured if they are transferred to other countries, in some cases their home countries.

Their lawyers have asked a federal court to delay their release from Guantanamo until their cases can be reviewed by the Supreme Court.

News of this latest twist in the long-running GITMO-release saga came as the government announced that 13 Uighurs – Turkic Muslims from China – have agreed to be transferred to Palau, a tiny island nation in the Pacific Ocean, some 500 miles (800 km) east of the Philippines.

For the 13, release will end years of imprisonment, abusive interrogations, and legal battles in both U.S. military and civilian courts.

The Uighurs cannot be repatriated to China because domestic American law proscribes deporting individuals to countries where they are likely to be abused.

The Bush administration conducted bilateral negotiations with a number of other countries to accept captives who had been cleared for release, but with limited success. These negotiations have continued under President Barack Obama.

The Uighurs were arrested in the “badlands” between Pakistan and Afghanistan in 2001, near where Osama bin Laden was believed to be hiding at the time, and had been trained to use automatic assault rifles.

The men were taken back to Afghanistan to a U.S. detention center in the city of Kandahar, interrogated for several months, and then flown to Guantanamo Bay.

Their cases were eventually heard by the U.S. military’s Combat Status Review Tribunals, which determined that they were not enemy combatants and posed no threat to the U.S.

Five of the Uighurs were released to Albania in 2006. One of the five subsequently was granted asylum in Sweden. In June of this year, the Obama administration negotiated the release of four additional Uighurs to Bermuda.

Meanwhile, in 2008, in a plea to a federal court for a writ of habeas corpus, lawyers for the remaining Uighurs challenged their continued detention. A federal judge ordered them released into the U.S., but that decision was reversed by an appeals court in February, 2009.

In April, lawyers for the Uighurs asked the Supreme Court to recognize that the right to habeas corpus requires a remedy when a court finds that an individual is wrongly detained. The petition asks for the Uighurs’ release.

"We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge's learned essay but something meaningful – their release," said Sabin Willett, of the Boston law firm of Bingham McCutchen, an attorney for the Uighurs.

In an effort to restore habeas petitions to their traditional status, a federal circuit court this week issued a one-line order in the Uighurs’ case (known as Kiyemba, et al., v. Obama, et al) giving the government sweeping authority — without “second-guessing” by the courts — to move detainees out of Guantanamo.

As a result, lawyers for the Uighurs are soon expected to file a second appeal to the Supreme Court. The key issue will be whether judges have any power to impose any controls on detainee transfers.

That is also a key issue for an Algerian national, Ahmed Belbacha, who has asked the Circuit Court to hold in abeyance his potential transfer to his home country, where he fears he will be tortured either by the government for past political activity, or by a terrorist organization he says has threatened him in the past.

His lawyer, Zachary Katznelson, senior counsel with Reprieve, the London-based legal charity, says his client describes his cell in Guantanamo as “like a grave.” He says, “Although it sounds crazy he would rather stay in those conditions than go back to Algeria.”

The 38-year-old Belbacha fled Algeria in 1999 at the height of the civil war between the Armed Islamic Group (GIA) and the Algerian Government. He and his family received death threats from the GIA, which killed thousands during the 1990s.

Belbacha fled to France and then to Britain, where he applied for asylum. He was given exceptional leave to remain pending the outcome of his application.

He says that in July 2001 he traveled to Pakistan to undertake religious study. While there he crossed the border into Afghanistan and, when the US-led invasion began, crossed back into Pakistan. He claims that in December 2001 he was apprehended by villagers near Peshawar, in northwest Pakistan, and sold to the authorities for a bounty.

American agents first sent him to a prison camp near Kandahar and then, in March 2002,to Guantanamo, where a military tribunal alleged that he had associated with the Taleban in Afghanistan and ruled that his detention was justified. But in February of this year, the U.S. said he was fit for release.

His lawyers say they are prepared to go to the Supreme Court to prevent his transfer.

According to Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized legal defenses for dozens of Guantanamo detainees, “This issue has come up in the context of the 60-odd detainees who have no safe home country to be returned to. The government is resisting bringing them into the U.S. by arguing that the courts have no power to order a detainee released into the United States even if the government has no legal right to hold him and can’t find a safe country to take him.”

He told us, “Paradoxically, that argument – which the government is making so it can avoid taking even a single detainee into the U.S. -- is standing in the way of finding other countries to take the majority of the detainees, as foreign governments ask themselves why they should take in Guantanamo’s refugees when the U.S. will not contribute to the effort.”

Uighers’ attorney, Sabin Willett, says the courts are making “a hash” of the habeas corpus tradition. He told us, “The remedy for indefinite detention by the executive jailer turns out to be to direct the executive jailer to enter into diplomacy with third parties beyond the court's jurisdiction to try to free the prisoner on whatever terms it chooses.”

Major David Frakt, a law professor at Washington State University, and formerly a lead defense counsel at the Office of Military Commissions, agrees.

He told us, “In most cases, either the detainee is unwilling to go back to his country of origin either because we are concerned that country will torture the individual, or we are concerned that the country won’t adequately monitor or control the individual, leaving him free to ‘return to the battlefield’ (or perhaps, more accurately in many cases, go to the battlefield for the first time).”

“The fearmongers in Congress have created an atmosphere in which it is not politically feasible for the Obama Administration to release any detainees in the U.S. This is both unfair and unfortunate, because the single most significant thing the U.S. could do to encourage other countries to accept detainees is to accept a few for resettlement in the U.S.,” he said.


Monday, September 07, 2009

El-Masri: Not Giving Up

By William Fisher

Thwarted by U.S. Courts, a German citizen who claims he was “rendered” by the U.S. and secretly detained and tortured for three months is taking his case to the Inter-American Commission on Human Rights.

The IACHR has accepted a petition filed by the American Civil Liberties Union (ACLU) on behalf of Khaled El-Masri. The U.S. government has two months to respond to allegations of kidnapping and torture which U.S. courts summarily rejected in 2007.

"The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program.

"The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date, the United States hasn't so much as acknowledged its involvement in El-Masri's extraordinary rendition."

In 2003, El-Masri, a German citizen, was kidnapped and flown to a CIA-run "black site" in Afghanistan, where he was secretly detained and tortured. Although his innocence was clear soon after his detention, the CIA continued to hold El-Masri for four months before flying him to Albania and abandoning him on a hillside in the dead of night. El-Masri has never been charged with a crime.

In 2005, the ACLU sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. Constitution and universal human rights laws.

In March 2007, a federal appeals court dismissed the lawsuit because of the government's assertion of the "state secrets" privilege. The U.S. Supreme Court let that decision stand when it refused to hear the case in October 2007.

"The United States, which has historically been a leader in ensuring access to justice for human rights violations around the world, has effectively closed the courtroom door to all victims of the Bush administration's torture regime," said Ben Wizner, staff attorney with the ACLU National Security Project.

"To date, not a single victim of torture by the U.S. has had his day in court. A review of Mr. El-Masri's case by the IACHR will shed much-needed light on the abuses perpetrated against him and will finally offer a victim of the U.S. torture and rendition program a venue in which his claims can be meaningfully addressed."

The Obama administration recently announced that it will continue to render individuals it suspects of involvement in terrorism to detention in other countries, but that it will monitor all cases to ensure that suspects are not mistreated. There is little difference between this policy and that of the previous administration. Neither stated what it would do if it found that “diplomatic assurances” were being violated.

"Any transfer of detainees in U.S. custody to other countries must fully comply with domestic and international human rights law," said Jennifer Turner, researcher with the ACLU Human Rights Program. "Examining the Bush administration rendition program and holding accountable those who broke the law will help to ensure that the same mistakes aren't repeated by the Obama administration."

The IACHR is an autonomous body created by mandate of the Organization of American States to promote and protect human rights in the Americas. The ACLU petition asks that the IACHR declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man; to find the U.S. responsible for violating El-Masri's rights under that declaration; and to recommend that the U.S. publicly acknowledge and apologize for its role in violating El-Masri's rights through forcible disappearance, arbitrary detention and torture.

The El-Masri case is beginning to attract almost as much media attention as perhaps the best-known rendition case: that of Maher Arar.

Arar, a dual Canadian-Syrian citizen, was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was held in solitary confinement in the U.S. for nearly two weeks, questioned, and denied meaningful access to a lawyer. The US government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture.

He was detained in Syria for almost a year, during which time he was tortured, according to the findings of a commission of inquiry established by Canada.

The commission concluded that Aar had been tortured. It publicly cleared Arar of any links to terrorism and gave him a $10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.

Despite the Canadian court ruling, the U.S. government has not exonerated Arar. It has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist, though former Secretary of State Condoleezza Rice acknowledged in testimony to Congress that the Arar affair was “not handled very well.” As of February 2009, Arar and his family remain on the U.S. “no-fly” watchlist.

His U.S. lawyers at the Center for Constitutional Rights (CCR) continue to pursue his case, Arar v. Ashcroft, which seeks compensatory damages on Arar’s behalf and also a declaration that the actions of the U.S. government were illegal and violated his constitutional, civil, and international human rights.

Saturday, September 05, 2009

Appeals Court Rebuffs Ashcroft

By William Fisher

In what is being hailed as “an unprecedented ruling,” a federal appeals court has concluded that the Bush Administration’s first attorney general, John Ashcroft, can be held personally responsible for the wrongful detention of an innocent American.

In the panic that followed the terrorist attacks of September 11, 2001, the Department of Justice rounded up several thousand “Middle Eastern-looking” men and women and detained them, frequently in harsh prison-like facilities, without charges, access to their families, or attorneys.

These round-ups continued well after 9/11, as the government continued to take exceptional measures to locate and arrest people they thought posed a threat to U.S. national security. Many of those detained were U.S. citizens; others were immigrants, whose only crime might have been overstaying a visa. Among middle-Eastern-looking men were Sikhs and others from South Asia.

Many others were arrested as “material witnesses” as Attorney General Ashcroft transformed the law into a ‘preventive’ detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

He said at the time, “These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of law-breakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”

Caught up in this environment of fear was Abdullah Al-Kidd, a U.S.-born African-American citizen who had converted to Islam. Al-Kidd was on his way to Saudi Arabia to study on a Saudi scholarship when he was detained and arrested in Washington's Dulles Airport on March 16, 2003. He was held as a “material witness in the trial of Sami Omar Al-Hussayen.”

For 15 days he was treated as if he were terrorism suspect rather than a material witness. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers.

Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

Federal authorities said al-Kidd had to be detained to provide information germane to the prosecution of fellow University of Idaho student Sami Omar Al-Hussayen on terrorism charges. But al-Kidd was never called to testify at Al-Hussayen's trial, leading al-Kidd to charge that federal authorities were more interested in investigating him than using him to build their legal case.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

A jury later acquitted Al-Hussayen of four charges and deadlocked on eight others. He was deported to Saudi Arabia.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of al-Kidd, charging that the federal material witness law cannot be used to preventively detain or investigate suspects and that then Attorney General Ashcroft can be held personally responsible for al-Kidd's wrongful detention.

The federal court’s ruling in this case places responsibility squarely on government officials who, after 9/11, championed polices clearly outside the boundaries of the law, the ACLU asserts.

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law."

Prior to 9/11, the federal material witness law had been used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests, under the statute, took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily.

The Al-Kidd ruling came after a U.S. district court in 2006 found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The district court also ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime. Former Attorney General John Ashcroft appealed the ruling and asked for complete immunity from liability.

Writing for the majority in the Appellate Court’s decision, Judge Milan D. Smith, Jr., said, "Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a ‘material witness' under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint.”

He continued: “Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."

Judge Smith also noted that, “By the time al-Kidd’s confinement and supervision ended, 15 months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.”

He wrote: “Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, to investigate or preemptively detain him.”

The judge said, “Ashcroft asserts that he is entitled to absolute and qualified immunity” against al-Kidd’s claims. But in his ruling, the judge wrote, “We hold that on the facts pled Ashcroft is not protected by either form of immunity.…”

Judge Smith was joined by Judge David Thompson in ruling that Ashcroft does not enjoy prosecutorial immunity in the case. Judge Carlos Bea said qualified immunity should shield Ashcroft from the lawsuit. Judge Smith and Judge Bea were appointed to the court by President George W. Bush. Judge Thompson was nominated by President Ronald Reagan.

Titillating the News Business

By William Fisher

Thanks to America Online – the nation’s “news channel” -- we’ve just hit a new low in the dumbing down of news.

Not a bottom, mind you, just a new low. Because the lowest of the low is probably some years off.

In its widely publicized push for more “quality content,” AOL recently presented one of its intensely probing investigative reports. It was titled: The Top 19 Hottest Newscasters in America. It was created by

The introduction to this journalistic gem said:

“As media professionals, we understand how tough it can be to be, even though on our best days we're merely lobbing spit balls. So we have some sympathy for the lady journalists of the world who have to do everything we do plus look hot doing it. Not that that'll stop us from lobbing gobs at them as well.”

Warming to their task, these intrepid defenders of the public interest asked us to “Delve with us, if you will, into the world of hot journalists. The roundup includes everything from short skirts on pogo sticks and wet T-shirt contests to creepy, titillating YouTube compilations of crossing and uncrossing legs.”

Digging beneath the skinny, as it were, the authors presented their list with appropriately titillating (no pun intended), newsy, thoughtful and informative comments. Here are some of them:

Catherine Bosley (No.19): Catherine Bosley was an anchor in Youngstown, Ohio, until she went on vacation to Key West, got drunk and stripped completely naked in a wet T-shirt contest. Of course, with the Internet being what it is, a video made it online and went viral. Bosley resigned her post and now works for Action News 19 in Cleveland. Interesting tidbit: Sharon Reed (who got naked for a news segment) interviewed Bosley about her "scandal" in a piece titled "Naked News." We were shocked and depressed when we couldn't find a video of this interview on YouTube.

Robin Meade (No. 16): CNN’s Robin Meade may be the the anchor of the eponymous show "Morning Express With Robin Meade" and she may have covered the wars in Afghanistan and Iraq for CNN, but what really impressed us is that she too works in a miniskirt and, as this YouTuber noticed, has great legs.

Jane Skinner (No. 13): (Fox News) Skinner may be the co-anchor of "Happening Now" and producer of the Skinnerville segment on "Studio B with Shepard Smith," yet the most famous entry on her résumé is a gaffe that launched a thousand YouTube videos. Two words: "Top cock."

Jillian Barberie (No 11): (FOX) Playboy proved long ago that if a woman is hot enough, she can pose in swimsuits and lingerie regardless of her profession. Thank you, Jillian Barberie, for helping to bring this trend to broadcast journalism. Your contributions have not gone overlooked on the Internet.

Sharon Reed (No.7): (Action News 19) Sharon Reed is a local news journalist in Cleveland who caused a stir in 2004 by reporting nude on Spencer Tunick's "Naked States" project. Her report, called "Body of Art," was heavily promoted and was one of the most-watched news stories of the year. We at Asylum admire her stunt-journalism pluck, among other things.

Lauren Sanchez (No.5): (Formerly KTVK-TV, Extra, and Fox Sports Net) Emmy-nominated Lauren Sanchez is known for hosting "So You Think You Can Dance," as well as numerous sports and entertainment shows. Perhaps she's not a "news journalist," but lay off, you scoop snobs, and consider the more important story: Would you rather date Sanchez or an award-winner from The New York Times?

Barbara Bermudo (No.1): (Univision) If you needed a reason to learn Spanish, now you have one. This Puerto Rican beauty makes us wish that all of the news channels would take a page from Univision's playbook and hire ferociously hot Latinas.

And under a video of Julie Banderas (No. 14), appeared this caption:

Julie Banderas -- Lady newscasters must hate "tribute videos" such as this cleverly titled, porno-music filled, slow-mo video, "julie banderas legs."

You can take it to the bank: Legs are NEWS!

And what are the other stories these anchors are covering these days? The war in Afghanistan, the Iraq disaster, Dick Cheney, our economic meltdown, health care, cap and trade, immigrant detention, torture, wild fires, not to mention the usual menu of car chases, murders, rapes, kidnappings, kittens up a tree – well, you get the picture.

But, viola, thanks to the skill of these dogged TV newsdiggers, all these yarns somehow get magically transformed into “good news” stories we can’t wait to watch.

This is the future of television news.

And, since most of the American public gets its news via television these days, it’s our future as well. Which explains why America has such a well-informed citizenry.

An Ecuadoran economist named Sebastian Hurtado Perez has apparently been doing a lot of thinking about role of “hot” women in our society. He wrote a funny piece in this morning’s Washington Post entitled, “Workers of the World, Exfoliate!”

Perez’s proposition: “Much attention has been paid of late to whether the United States is trending toward socialism. Alleviating socioeconomic differences through the federal government's active intervention in the economy is a common aim of all socialist movements. Nonetheless, most champions of the less privileged have never made a practical effort to mitigate the social differences caused by the inequitable distribution of what, nowadays, is a factor with an enormous socioeconomic impact: beauty.”

He goes on to write, “It is unacceptable for physical attractiveness to be the birthright of a very small proportion of the population.” For this reason, he suggests that “the civilized nations of the world consider incorporating a few policies based on the most traditional economic principles of socialism.”

One of those principles: “Political constitutions should define beauty as a ‘strategic natural resource’. They should state that citizens may not be discriminated against on the basis of their physical attractiveness and that the protection of ugly people and their integration into society should be an unalienable duty of governments.”

“To that end,” he concludes, “governments should nationalize beauty industries in order to ensure the supply of low-priced makeup, anti-wrinkle creams, aesthetic plastic surgery, etc. This would help to improve people's appearance, thus reducing the differences between the beauty icons and the common people. This would have a significant cost, which, according to a clear principle of solidarity, should be financed through a tax on the beautiful people in each country.”

If the Obama Administration would only take up Dr. Perez’s challenge, it wouldn’t be too long before you could get your news from, say, Elizabeth Warren!

Hey, as reported by Sam Stein on HuffPo, it worked for Jon Stewart, who was instilled with confidence and left feeling at ease after the Harvard prof did a guest turn on The Daily Show.

The TARP overseer would certainly not qualify as one of AOL’s hottest newscasters. But the question is whether you watch TV news for information or cleavage!

Tuesday, September 01, 2009


By William Fisher

Did physicians and psychologists help the U.S. Central Intelligence Agency develop a new research protocol to assess and refine the use of waterboarding or other harsh interrogation techniques?

This is the question being raised in a new report by a leading human rights organization. The group says that, if confirmed, it would likely constitute a “new, previously unknown category of ethical violations committed by CIA physicians and psychologists.”

Physicians for Human Rights (PHR) charges that “The extent to which American physicians and psychologists violated human rights and betrayed the ethical standards of their professions by designing, implementing, and legitimizing a worldwide torture program is greater than previously known.”

A team of PHR doctors authored the new white paper, “Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Demonstrated in the May 2004 Inspector General’s Report.” The report details how the CIA relied on medical expertise to rationalize and carry out abusive and unlawful interrogations. It also refers to aggregate collection of data on detainees’ reaction to interrogation methods.

“PHR is concerned that this data collection and analysis may amount to human experimentation,” the report says.

“Medical doctors and psychologists colluded with the CIA to keep observational records about waterboarding, which approaches unethical and unlawful human experimentation,” says PHR Medical Advisor and lead report author Scott Allen, MD.

For example, the report says, “Interrogators would place a cloth over a detainee’s face to block breathing and induce feelings of fear, helplessness, and a loss of control. A doctor would stand by to monitor and calibrate this physically and psychologically harmful act, which amounts to torture. It is profoundly unsettling to learn of the central role of health professionals in laying a foundation for US government lawyers to rationalize the CIA’s illegal torture program.”

Frank Donaghue, PHR’s Chief Executive Officer, told IPS, “Health professionals violated ethical duties by participating in the torture and abuse of detainees in U.S. custody. PHR has long demanded a full investigation into the role health professionals played in detainee treatment. PHR again calls upon health professional associations to support a non-partisan commission of inquiry.”

“It is time for the American Medical Association, the American Psychological Association, and others to demand a nonpartisan commission to investigate these crimes,” he said. “The associations must sanction any of their membership found to have violated their professional ethics.”

These and other professional organizations have condemned participation by their members in detainee interrogations.

The Inspector General’s report documents some practices -- previously unknown or unconfirmed -- that were used to bring about excruciating pain, terror, humiliation, and shame for months on end.

These practices included: Mock executions; brandishing guns and power drills; threats to sexually assault family members and murder children; walling” – repeatedly slamming an unresponsive detainee’s head against a cell wall; and confinement in a box.

“These unlawful, unethical, and ineffective interrogation tactics cause significant bodily and mental harm,” said co-author and PHR Senior Medical Advisor Vincent Iacopino, MD, PhD. “The CIA Inspector General’s report confirms that torture escalates in severity and torturers frequently go beyond approved techniques.”

“The required presence of health professionals did not make interrogation methods safer, but sanitized their use, escalated abuse, and placed doctors and psychologists in the untenable position of calibrating harm rather than serving as protectors and healers. The fact that psychologists went beyond monitoring, and actually designed and implemented these abuses – while simultaneously serving as ‘safety monitors’ – reveals the ethical bankruptcy of the entire program,” said co-author Steven Reisner, PhD, PHR’s Psychological Ethics Advisor.

“That health professionals who swear to oaths of healing so abused the sacred trust society places in us by instigating, legitimizing and participating in torture, is an abomination,” states co-author Allen Keller, MD, Director of the Bellevue Medical Center/New York University Program for Survivors of Torture.

“Health professionals who aided torture must be held accountable by professional associations, by state licensing boards, and by society. Accountability is essential to maintain trust in our professions and to end torture, which scars bodies and minds, leaving survivors to endure debilitating injuries, humiliating memories and haunting nightmares,” Keller said.

PHR has called for full investigation and remedies, including accountability for war crimes, and reparation, such as compensation, medical care and psycho-social services. PHR also calls for health professionals who have violated ethical standards or the law to be held accountable through criminal prosecution, loss of license and loss of professional society membership where appropriate.

The report by the CIA’s now-retired Inspector General, John Helgerson, was prepared in 2004. In response to a Freedom of Information lawsuit brought by the American Civil Liberties Union (ACLU), a heavily redacted version of the report was released earlier. But because many pages of it were totally blacked out and unreadable, the ACLU asked a federal judge to order the CIA to release a less-redacted version. That version, with some sections still blacked out, was released last month.

Its publication sparked a firestorm of controversy, with key figures such as former vice-president Dick Cheney defending the CIA’s interrogation practices and accusing the Obama Administration of aiding terrorists by making the report public. It has reportedly also resulted in heated arguments between Attorney General Eric Holder and Leon Panetta, head of the CIA. Both are recent Obama appointments.

Holder has since appointed a special prosecutor to conduct a preliminary investigation to determine whether criminal charges should be pursued against CIA operatives who exceeded the guidelines provided to them by lawyers in the Justice Department during the administration of former President George W. Bush.

The C.I.A.’s interrogation methods were declared legal by the Justice Department under President Bush. Recently released memoranda asserting their legality have been attacked by many legal scholars and human rights advocates.