Wednesday, April 29, 2009


By William Fisher

While human rights and open-government groups are generally pleased with President Barack Obama’s rhetoric during his first 100 days, some are skeptical that he will deliver on his promises.

Typical is Amnesty International. The group says, “President Obama has made a promising start in improving the United States' human rights record in his first 100 days in office, but he must now deliver on his promises.”

The London-based rights group praised Obama for declaring that he will close the Guantanamo Bay prison, but it said after an "auspicious start" in making a swift announcement, more than 240 detainees are no closer to freedom.

"The bottom line is that... unlawful detentions at Guantanamo Bay continue, and for the vast majority of the detainees, the change in administration has so far meant no change in their situation," Amnesty said.

The group also expressed concerns about suspects held at Bagram airbase in Afghanistan, which it said remained "shrouded in secrecy." Obama had inherited a "unique opportunity" to dismantle the Bush administration's apparatus for the war on terror which had produced "brutal practices and broken lives," Amnesty said.

"The closure of Guantanamo must mark the end of the policies and practices it embodies, not merely shift those violations elsewhere, whether to Bagram... or anywhere else," Amnesty said.

The Center for Constitutional Rights – which has mobilized a small army of pro-bono lawyers to defend Guantanamo detainees – praised Omaba’s rhetoric but cautioned that “in many areas of critical importance – like human rights, torture, rendition, secrecy and surveillance – his words have been loftier than his actions.”

Vince Warren, CCR executive director, says, “On Obama's very first day in office, his administration ordered a 120-day suspension of the military commissions for Guantanamo detainees. The commissions were widely assailed for allowing evidence obtained through coercion and torture, secret evidence and hearsay evidence, all in violation of the U.S. Constitution. But Obama did not abolish the military commissions; he only hit the ‘pause’ button.”

Warren faulted Obama for not moving more quickly to close the U.S. military prison at Guantanamo Bay, Cuba.

He said, “The new president's most dramatic moment came on day three when he issued executive orders to close Guantanamo's prison camp within one year. But Guantanamo isn't yet closed. The hundreds of men held there still haven't won their freedom, nor will they necessarily have their day in fair court. Another year for men who have been held in abusive and inhuman conditions for seven years already is simply too long.”

Warren said that “secrecy was the hallmark of the Bush administration. It classified more documents than any administration in history, restricted Freedom of Information Act requests and tried to protect government officials and military contractors from being held liable for illegal actions, such as torture and wrongful death.”

“It invoked the state secrets privilege to avoid scrutiny in court and
responsibility for government action more times than any other administration,” he said, but added:.

“Obama has come down on both sides of this issue, ordering far more transparency through cooperation with Freedom of Information Act requests, while at the same time invoking state secrets in a case charging an aviation corporation with complicity in rendering a detainee to torture.”

Warren was also critical of Obama on the issue of electronic surveillance. He said, “The U.S. government used to need a warrant before it could spy on its own people. In 2002, President George W. Bush issued a secret executive order illegally authorizing the National Security Agency to wiretap Americans without a warrant. When the program was exposed, the administration secured immunity from Congress for the telecommunications companies that participated in the program. Obama still has not repudiated the executive orders supporting warrantless wiretapping and the legal opinions used to support them.”

Warren said that release of the “torture memos” prepared by lawyers in the Bush Justice Department was “welcome,” but he noted that “Obama has indicated he will not prosecute former officials who broke the law and committed crimes, saying he would rather look forward than back. For there to be no consequences for creating a torture program not only calls our system of justice into question, but it also could allow the nightmare to happen all over again.”

He said, “After the Sept. 11 attacks, Bush quickly squandered the world's enormous goodwill toward the United States. The goodwill Obama has inspired can evaporate if the rest of the world begins to see his administration continuing too many of Bush's policies.”

At the same time, a leading open-government advocacy organization, OMB Watch, said, “The president and his team have made significant progress in both the right-to-know and regulatory areas.”

But it added that “there is still much work to be done as we move deeper into Obama's term in office.”

“Overall, the Obama administration has set a strong tone on transparency, but a true assessment cannot occur until the development of agency-wide policies are put in place and fully implemented,” the group said.

“During his first full day in office, Obama successfully communicated the importance of transparency to agencies and the public by issuing memorandums on the Freedom of Information Act (FOIA) and on transparency and open government.

The FOIA memo gave instructions and guidance to the attorney general on issuing new policies on the implementation of FOIA. The transparency memo directed agencies to harness new technologies to make information available to the public and for top officials to draft a blueprint Open Government Directive. These immediate actions were followed by steps to bring greater transparency to the regulatory process and to how scientific actions in government are handled,” the group said.

But it was critical of the new president on the issues of “signing statements” and use of the “state secrets privilege” to keep cases out of court on national security grounds.

It said, “Many groups considered Obama's signing statement on the 2009 omnibus appropriations bill to be an affront to whistleblower protections. These groups have interpreted Obama's signing statement as impeding the ability of government employees to communicate with Congress. Further, in repeated court cases, Obama administration officials have insisted on maintaining the Bush administration's broad interpretation of executive branch power on the issue of state secrets. There has been no public discussion of reviewing these policies for possible revision.”

OMB Watch noted that “Despite a fierce internal debate, the Obama administration has released four Bush-era ‘torture memos’ from the Department of Justice.

But, it added, “It remains to be seen if the administration will adopt a systematic approach to releasing other important documents that have been withheld from the public.”

The group noted that, in his first 100 days in office, President Obama “has made transparency a high priority and has started significant efforts in what will be a long process of getting government to be more open.”

But, it added, “Concerns and complaints have been raised by right-to-know advocates about various activities of the administration, including the usability of the White House website, transparency of legislation before the president signs it, and more. Additionally, it is difficult to accomplish much substantive change in just 100 days; much of the real test for this administration's commitment to transparency lies ahead. However, when measured against the yardstick of the five recommendations described above, it is impossible to view the administration's accomplishments as anything other than a success.”

Overall, the group concluded, Obama “has set a positive tone for the administration with his calls for increased transparency and renewed scientific integrity throughout government, his appointments of well qualified people to serve in regulatory agencies, his reversal of harmful regulatory practices and rushed deregulatory actions, and his initiation of an open process to reform the executive order that governs the rulemaking process. For these actions, the president deserves high marks.”


By William Fisher

A coalition of 19 human rights, faith-based, and justice organizations is calling on President Barack Obama to investigate torture they charge was sanctioned by the administration of former President George W. Bush.

The group, led by the National Religious Campaign Against Torture (NRCAT), is proposing both a special prosecutor and an “independent, non-partisan commission to examine and report publicly on torture and cruel, inhuman and degrading treatment of detainees in the period since September 11, 2001.”

The campaign’s call for accountability comes just days after the release of the Senate Armed Services Committee report on interrogation and torture and the Justice Department legal memos sanctioning torture and inhumane treatment.

Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture, told us, “NRCAT supports both the establishment of an independent, non-partisan Commission of Inquiry to investigate the use of torture and a Department of Justice investigation for criminal culpability of those who authorized or carried out acts of torture. Each process is important and can be pursued independently.”

He added, “A Commission will help us understand how the illegal interrogation policies came into effect and how they were implemented so that we can ensure that safeguards are in place to prevent future administrations from following the same path. A criminal investigation will send the clear message that government officials cannot violate laws against torture without facing serious criminal sanctions. If we hope to end the practice of torture by agents of the United States once and for all, we must pursue both avenues.”

The coalition proposes a commission, “comparable in stature to the 9/11 Commission,” to “look into the facts and circumstances of such abuses, report on lessons learned and recommend measures that would prevent any future abuses.”

The group’s online petition says that a commission is “necessary to reaffirm America’s commitment to the Constitution, international treaty obligations and human rights. The report issued by the commission will strengthen U.S. national security and help to re-establish America’s standing in the world.”

Organizations endorsing the effort include Amnesty International USA, the Constitution Project, Human Rights First, Human Rights Watch, the Open Society Institute, and Physicians for Human Rights.

NRCAT and its partner organizations say they have “worked together to end U.S.-sponsored torture. During 2008, the religious community advocated for a Presidential Executive Order ending torture. It happened. On January 22, President Obama issued an Executive Order halting torture.”

The coalition says the task now is “to make sure that U.S.-sponsored torture never happens again. To accomplish this goal, our nation needs to put safeguards in place to prevent its recurrence. We will better understand what safeguards are needed if we have a comprehensive understanding of what happened – who was tortured, why they were tortured, and who ordered the torture. As a nation we need the answers to those questions.”

In a letter to Attorney General Eric Holder the coalition also urges the
appointment of a Special Counsel to investigate criminal acts relating to the confinement and interrogation of detainees since Sept. 11, 2001.

The letter notes that excerpts of a recently released report from the International Committee of the Red Cross (ICRC) concluded that detainees “had been subjected to torture – a crime under both domestic and international law.”

It says, “The ICRC report, which describes conduct of shocking brutality, shows that a limited investigation is simply insufficient in this case. Government officials, from the lowest CIA officer, to the highest levels of the Executive Branch may be criminally culpable for the use of torture. Because such an investigation will include a review of the conduct of very top officials of the previous administration, and because the appearance of absolute impartiality in determining whether and whom to prosecute is critical to the public's support and understanding of such prosecutions and the laws at issue, we believe it is both wise and necessary for you to refer this investigation to a Special Counsel.”

NRCAT twice asked former Attorney General Michael Mukasey to appoint a Special Counsel to investigate both the destruction of the CIA videotapes that documented the use of “harsh” interrogation techniques against suspected terrorists and whether such techniques violated U.S. and international law.

“While an investigation was initiated into the destruction of the tapes, the investigator, John Durham, was not given the independent status of Special Counsel. Further, Attorney Durham’s investigation was limited to the destruction of the tapes; he apparently does not have the authority to investigate the lawfulness of the interrogation conduct depicted on said tapes,” the group said.

“A full, independent and public investigation into possible violations of U.S. law by high-ranking government officials in the use of ‘enhanced interrogation techniques’ is necessary.”

“The American people need to know how detainees have been treated in Iraq, Afghanistan, Guantánamo and elsewhere around the world. And they need to know that every measure has been taken to ensure that no violations of U.S. law with respect to torture and ‘cruel, inhuman and degrading treatment’ will be permitted in the future. An independent investigation is a necessary part of achieving this goal,” the group said.

Court Rebukes Bush, Obama Administrations

By William Fisher

In what may become a landmark decision, a federal appeals court ruled yesterday that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, but not to dismiss an entire suit.

The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.

The suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the Central Intelligence Agency (CIA) to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).

During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the "state secrets" privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. Yesterday, the appeals court reversed that decision.

But lawyers for the men who brought the case also sounded a note of caution. "This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs.

"Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."

In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."

The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said.
Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.

The court did not address the plaintiffs' claims that they were kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.

"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.

"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."

He told us that he had spoken with one of the plaintiffs, Bisher Al-Rawi, who was released from Guantánamo last year without ever having been charged with a crime. Al-Rawi, now back in the U.K., told Watt, “It’s like winning the lottery.”

Yesterday’s Appeals Court ruling means that the government can assert the “state secrets” privilege for any specific piece of evidence, but not to end a case before it begins.

That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.

The case was brought on behalf of five men who were allegedly kidnapped by the U.S. Central Intelligence Agency in 2001 and 2002.

Al-Rawi, an Iraqi citizen and long-term British permanent resident, was kidnapped and later secretly flown by the CIA to Kabul, Afghanistan. He was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba. He was imprisoned there for more than four years until his release on March 30, 2007. He returned to his home in London where he currently resides freely. No charges were ever brought against him.

Ethiopian citizen Binyam Mohamed was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services. Then he was once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo. He was released without charge in February and is currently suing the British Government for being complicit with the CIA in his rendition.

Abou Elkassim Britel, an Italian citizen, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents.

In December 2001, Egyptian citizen Ahmed Agiza was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.

In October 2003, Mohamed Farag Ahmad Bashmilah was taken into custody by the Jordanian General Intelligence Department and tortured and interrogated. In October 2003, he was turned over to CIA agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base at Bagram, Afghanistan. He was freed in March 2006, having never faced any charges related to terrorism.

Clive Stafford Smith, director of the U.K. legal charity Reprieve, which represents Binyam Mohamed in his British suit, told us, “This is a tremendous step forward in the battle to stop corporations making money off the rendition, torture and suffering of the prisoners we represent.”

He said, “Binyam Mohamed, and perhaps many others, are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit."

The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.

If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the United States government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.

In recent years, the government has asserted the “state secrets” claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public about the rendition program and also about illegal wiretapping, torture and other breaches of U.S. and international law.

Assertion of the privilege has denied access to U.S. courts in a number of high profile cases, most notably the cases of Khalid Al-Masri, an innocent German who was tortured by the CIA in Afghanistan, and whistleblower Sibel Edmonds, a linguist for the Federal Bureau of Investigation (FBI) who charged that national security was being breached at the agency.