Wednesday, July 08, 2009


By William Fisher

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jonathan Hafetz, staff attorney with the American Civil Liberties Union National Security Project, told us, "When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake."

"Torture and abuse at Bagram is further evidence that prisoner abuse in U.S. custody was systemic, not aberrational, and originated at the highest levels of government. We must learn the truth about what went wrong, hold the proper people accountable and make sure these failed policies are not continued or repeated," he said.

In April, the ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the detention and treatment of prisoners held at Bagram, including the number of people currently detained, their names, citizenship, place of capture and length of detention. The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."

"The U.S. government's detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy," said Melissa Goodman, staff attorney with the ACLU National Security Project. "The American people have a right to know what's happening at Bagram and whether prisoners have been tortured there."

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


By William Fisher

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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