Tuesday, March 03, 2009

Something Obama Can Do. Now.

By William Fisher

President Obama apparently had a successful first meeting with Canadian Prime Minister Steven Harper. Obviously, their main – perhaps only – subject was the current economic meltdown.

But event disappointed many of the president’s supporters. These are the folks who are confused by what they see as the Administration’s ambivalence about the nexus between national security and civil and human rights.

In his first week in office, the president signed executive orders to shut down Guantanamo within a year, review all the cases there within 120 days, ban “enhanced interrogation” techniques, and bring a new era of openness and transparency to his government.

Before his first month was out, Obama’s Justice Department released some of those famous memos written by John Yoo and other Bush lawyers, justifying virtually infinite presidential power. And the CIA disclosed that it destroyed not two, but ninety-two, interrogation tapes.

But while all that was going on, Obama’s DOJ lawyers were in court, twice choosing to follow the same tired road so frequently traveled by George W. Bush: Invoking the so-called “state secrets privilege” to keep cases from ever getting heard in court.

In one case, the government’s lawyers used the “state secrets” defense to get a federal court to throw out a case against a Boeing subsidiary called Jeppesen Dataplan, in which four Guantanamo prisoners alleged that they were victims of “extraordinary rendition,” and that Jeppesen provided the CIA with the logistical support for their flights into foreign torture chambers.

In another case, Obama’s DOJ used “state secrets” in an attempt to halt a lawsuit charging that the government’s evidence was obtained through Bush’s warrantless wiretapping program.

Maybe most of us can accept that all governments have secrets and have to have a way to keep their secrets secret – although the two cases cited above would not seem to be particularly great candidates for that inclusion in that category. Unless these cases somehow make it to court, we’ll never know. Unless someone leaks the facts to media.

But there’s one case the government refuses to talk about, despite that fact that all the evidence has been public for years.

That, of course, is the case of Maher Arar. Arar is the Canadian citizen who was stopped by immigration authorities at Kennedy Airport in 2002, while he was in transit back to Canada. He was detained for two weeks, denied a lawyer, and then shipped off first to Jordan and then to Syria. In Syria, he was held incommunicado in a cell the size of a grave and tortured for ten months before the Syrians released him without charges.

The Canadian Government formed a special commission to review their citizen’s “extraordinary rendition.” After an exhaustive investigation, the body admitted that what happened to Arar was a result of faulty information the Canadian Royal Mounted Police gave to U.S. authorities. The head of the RCMP was forced to resign, and Canada gave Arar an official apology and ten million dollars.

This all happened on George Bush’s watch. But after incessant stonewalling about the issue, all that Secretary of State Condi Rice would say was that she thought the affair was not handled very well. And Maher Arar, for reasons no one will discuss, is somehow still on the U.S. “no-fly” list.

Which brings me back to Obama’s meeting with Canadian Prime Minister Harper.

Yes, the economic meltdown had to be top of both men’s agendas. But how difficult would it have been for our new president raise the Arar issue with Harper? Or vice versa?

As far as we’ve been told, nothing like that ever happened. And that’s an Obama opportunity lost.

But it’s not too late. An honest statement from the Obama Administration – and an apology to Arar – could still be of enormous help in reassuring those of us who believe in the rule of law that our new president is really committed to justice and transparency.

Courts to Test Executive Power, Secrecy

By William Fisher

In two court cases that could test the limits of the Obama Administration’s executive authority as well as its commitment to transparency, human rights lawyers are challenging the government’s right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.

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

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

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

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

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

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

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

“I did not expect this from the Obama justice department,” said Jon Eisenberg, the Oakland, California, lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”

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

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

The Al-Haramain case represented the second time the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal.

In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed. There has not yet been a court decision in that case.

The Administration of George W. Bush invoked the state secrets doctrine more than any other government in U.S. history. In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons with first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."

In the second case, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the funds and operations of another Muslim-oriented charity, KindHearts, three years ago. The American Civil Liberties Union (ACLU), which is representing KindHearts, said the shut-down was carried out “without notice or a hearing, based simply on the assertion that the charity was ‘under investigation’." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, “again without providing it with a reason or meaningful opportunity to defend itself.”

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

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

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

KindHearts was founded in 2002 – after the government shut down a number of Muslim charities –to provide humanitarian aid abroad and at home in the U.S. in full compliance with the law. Shamsi said that “Despite the efforts KindHearts took to implement OFAC guidance and policies and otherwise exercise diligence, OFAC froze its assets in February 2006.”

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

The ACLU’S Shamsi told us, “The government’s actions in KindHearts’ case show the extent to which the government has unconstitutional and unfettered authority. The government has shut the charity down based on secret evidence, without any notice of wrongdoing, any probable cause, and without providing KindHearts an opportunity to defend itself or any judicial review.”

“These violations of fundamental due process guarantees were committed against a humanitarian organization that sought to alleviate human suffering both at home and abroad. The government’s actions send a profoundly negative message to other U.S. non-profits and do nothing to serve this country’s security or its image in the eyes of the world,” she said.

She added, “We think that the entire regime is unconstitutional because it fails to provide constitutionally adequate substantive criteria or procedural safeguards.”

“The government’s unfettered authority to shut down KindHearts based on suspicion alone has not only left the charity unable to fulfill its humanitarian mission; it sends a profoundly negative message to other U.S.-based non-profits that seek to alleviate human suffering. At a time when the United States needs to restore its image in the eyes of the world, the government’s actions do not serve either this country’s security or its commitment to justice, ” she told us.