Thursday, January 28, 2010

Those Pesky Drones!

By William Fisher

The Obama Administration is ramping up its use of drone unmanned aircraft to execute targeted killings in Afghanistan and Pakistan, and perhaps in other locations – and in the process killing civilians along with insurgents and risking the compromise of US moral imperatives and foreign policy goals.

That’s the view of a leading civil rights organization, the American Civil Liberties Union (ACLU), which has filed a request under the Freedom of Information Act (FOIA) calling on the president to lift the curtain of secrecy and level with the American people.

The increase comes on the heels of the “double-agent” attack on a CIA forward base camp in Afghanistan earlier this month that killed seven central Intelligence Agency (CIA) personnel. The CIA was reportedly working with a Jordanian who they thought was infiltrating Al Qaeda on their behalf. But when he arrived at their camp, he detonated a bomb, killing himself and seven others.

The ACLU is asking the government to release basic information about its use of drones to execute targeted killings. The group believes that “the use and proliferation of this tactic must be the subject of public scrutiny and debate.” The strikes are reportedly being carried out both by U.S. military forces and the CIA.

The request is seeking information, including who may be targeted and the geographical limits on where drone strikes may occur. It wants information about the scope and consequences of drone strikes, including a breakdown of the total number of people killed, the civilian casualty toll and the number of people killed who were fighters with the Afghan Taliban, or al Qaeda in Afghanistan, or who had some other terror-related affiliation or status.

“The public has been kept in the dark and is therefore unable to assess the wisdom or legality of the strikes,” the group claims.

"The use of drones to conduct targeted killings raises complicated questions – not just legal questions but policy and moral questions as well. These are not questions that should be decided behind closed doors. They are questions that should be debated openly, and the public should have access to information that would allow it to participate meaningfully in the debate," according to Jameel Jaffer, Director of the ACLU’s National Security Project.

One of the unmanned vehicles, known as the Predator, is capable of flying, armed or unarmed, for hours remotely controlled by pilots who are stationed thousands of miles away. The Predator is part of a growing number of similar craft that includes the Reaper and Raven as well as a new, high-tech video sensor system called the Gorgon Stare, which is being installed on Reapers.

The ACLU charges that the Obama administration has stepped up the use of drones to target individuals not only in Afghanistan, but also in Pakistan and perhaps other countries that are not active theaters of war.

“The use of unmanned drones to target and kill individuals is a profoundly new way of waging war. For the first time, military and intelligence officers can observe, track, and launch missiles at targeted individuals from control centers located thousands of miles away, without any significant U.S. presence on the ground. The technology also permits the United States to target individuals nearly anywhere in the world,” the organization claims.

The number of civilian casualties caused by drone attacks varies from the dozens to the hundreds. Human rights organizations are particularly concerned that drones could be used to target criminal suspects rather than legitimate military targets. Criminal suspects should be arrested and tried in civilian courts, the ACLU contends, adding that failure to do so could amount to “unlawful extrajudicial killings.”

The ACLU also raised concerns about the wisdom of using drones on policy and moral grounds.

“We hope that the Obama administration will live up to its professed commitments to transparency and openness in government and release this essential information in a timely manner,” the group said.

The increasing use of drones by the US has drawn sharp criticism from President Hamid Karzai of Afghanistan and Prime Minister Yousuf Raza Gilani and other high Pakistani officials.

Pakistan says the strikes against suspected al Qaeda and Taliban militants along its northwest violate its sovereignty. The attacks have resulted in serious anti-American feelings in Pakistan, which Washington sees as a critical ally in its war on extremism.

Gilani has told the press that drone attacks carried out on Pakistani soil were “counter-productive.” He said, “If the drone attacks had been useful, then we would have ourselves supported them.”

Gilani said the militants in the northwestern tribal areas bordering Afghanistan are strengthened by U.S. missile strikes. “Our policy is to isolate militants from the local tribes, but drone attacks unite them,” he said.

His view was echoed by Pakistan's foreign minister, Shah Mehmood Qureshi, who told Reuters that intensified U.S. drone aircraft attacks against Islamist militants in Pakistan could endanger relations between the two allies.

But when Secretary of State Hillary Clinton arrived in the Pakistani capital, Islamabad, she told a news conference the US was standing “shoulder to shoulder” with Pakistan in its military offensive. And the increased use of unmanned Predator drones is one of the highest-profile ways the US is doing that.

The White House authorized an expansion of the C.I.A.’s drone program in Pakistan’s tribal areas to parallel the president’s decision to send 30,000 more troops to Afghanistan. The Anew York Times reports that American officials are talking with Pakistan about the possibility of striking in Baluchistan for the first time — “a controversial move since it is outside the tribal areas — because that is where Afghan Taliban leaders are believed to hide.”

US strategy for eliminating safe havens for militants in the region turns on
increasing covert pressure on Al Qaeda and its allies in Pakistan while ground forces attempt to reverse the Taliban’s advances in Afghanistan.

Investigative reporter Jane Mayer of The New Yorker magazine has revealed that the number of US drone strikes in Pakistan has risen dramatically under President Obama. During his first 9.5 months in office, Obama authorized at least forty-one CIA missile strikes in Pakistan, a rate of approximately one bombing a week. President Bush sanctioned approximately the same number of attacks in his final three years in office.

The attacks have killed between 326 and 538 people, according to Mayer. She writes, “there is no longer any doubt that targeted killing has become official US policy.”

One of the most high-profile critics of the US drone program has been the United Nations human rights envoy, Philip Alston, the UN’s special rapporteur on extrajudicial, summary and arbitrary executions.

Alston told Amy Goodman of the Democracy Now radio program that the US government’s use of Predator drones may violate international law. He also raised the issue in a report to the UN General Assembly’s Human Rights Committee and said the US should explain the legal basis for using unmanned drones for targeted killings.

In June, Alston presented a critical report on the drone program to the UN Human Rights Council, but he says US representatives ignored his concerns.

He says, “If you’re a Defense Department person, it’s a very attractive proposition. One can use the Predators without putting US servicemen in any harm. They are very effective. They can kill very significant numbers of people.”

But, he adds, “The problem is that we have no real information on this program. What Jane Mayer exposed in her New Yorker piece is probably the most detailed information we have. She herself said that the CIA provides no information. It’s extraordinary that it’s the Central Intelligence Agency which is actually operating a missile program, which is actually deciding who to kill, when and where.”

Alston added, “There’s no accountability for it. There’s no indication of the rules that they use. So, I said before, there are rules, that it’s possible to justify a particular killing, but the CIA has never tried to do that. They have simply issued a general assurance: ‘No, no, everything’s fine. We really follow the rules, and we’re very careful.’ Well, if Israel or some other country that we’re scrutinizing says that, we say, ‘Sorry, guys, it’s not enough. We need to get the details’.”

Alston has called on the American government to make clear the details of the program; the legal basis, under US law, on which they are relying; the rules that they have put in place which govern the CIA actions, assuming there are rules; and what sort of accountability mechanisms they have. Do they review what they’ve done? They identify an individual. Often these identifications are very vague. But they say, ‘OK, we’ve got X in our sights’. Did they actually kill X? Did they kill someone else? How many other civilians did they kill? There’s never any accounting of that. And we need that sort of retrospective analysis, as well.”

He adds that, in countries like Afghanistan and Iraq, “The United States has not done nearly enough, even today, to make sure that private military contractors do not carry out virtually all tasks, including, it seems, running a part of the drone program.”

But the drone program also has its fans. One of them is John Yoo, the former Office of Legal Counsel deputy who wrote the so-called “torture memos. ” Yoo appeared at the conservative American Enterprise Institute recently.

He said that in some areas, President Obama has gone beyond George W. Bush when it comes to the use of executive power. Yoo pointed towards the Obama administration’s increased use of predator drones overseas as an example.

“If we were still in peacetime, and this were the criminal justice system, police are not allowed to shoot missiles at people who might be criminals, might be about to commit a criminal act or might have committed a criminal act, even if we have a hard time finding and arresting them,” said Yoo. He added that in this area Obama has gone beyond Bush.

He said figuring out how to target terrorists is much more difficult because they do not wear uniforms or have territories. “It’s a complicated process that we had not had to think about before, but that doesn’t mean it’s not a war.”

Two leading U.S. senators are also strong supporters of the drone program. They are Republican Sen. John McCain of Arizona and Joe Lieberman, Independent of Connecticut. Their recent visit to Islamabad underscored tensions between the anti-terrorist allies caused by strikes unmanned aircraft strikes against suspected Taliban and al-Qaeda targets.

"Friends don't always agree on every issue," Sen. McCain said at a news conference in Islamabad, adding that the United States will "try to find common ground" with Pakistani leaders on the drone issue but that "we have to do everything we feel is necessary to protect Americans from the attacks of terrorists who may be based here."

Pakistani President Asif Ali Zardari asked the senators to seek a halt to the drone attacks. He said they are undermining domestic support for the war against Islamist militants and asked that the United States give Pakistan the technology to carry out such strikes on its own.

Following the Dec. 30 suicide bombing at a US base in eastern Afghanistan that killed seven CIA officers and contractors, Washington has also increased its use of the controversial strikes near the Afghan border. Suspected US missiles killed four people and injured three in the latest raid on the North Waziristan tribal area. That was the sixth attack in the region in a week, the Associated Press reported. The AP quoted two Pakistani intelligence officials, who said a pair of missiles struck a house and a vehicle in a village near the town of Miran Shah. They did not identify the victims.

It is the civilian deaths that are giving US policy-makers serious headaches. The strategy outlined by Gen. Stanley McChrystal – and supported by Obama with the deployment of 30,000 additional troops – centers on protecting the Afghan people. It is unclear how killing civilians with drone attacks furthers that goal.

In a related development, military observers have revealed – and their revelations have been confirmed by the U.S. military – that a new, “stealthy” US drone, nicknamed “The Beast”, is operating out of Kandahar, Afghanistan.

But they question what it’s doing there. One military website wrote, “Since the Taliban do not have radar, why deploy an expensive, stealthy drone when conventional models like the Predator and Reaper work so well? And what’s the point of having a high-level, strategic craft in that theater?”

It says the speculation is that “The Beast” may be carrying out missions outside of Afghanistan, with Iran and Pakistan both being possible candidates.

The Air Force has confirmed “The Beast’s” existence to Aviation Week magazine. “Officially, it’s an RQ-170 Sentinel, developed by Lockheed and flown by the flown by the 30th Reconnaissance Squadron at Tonopah Test Range in Nevada,” the magazine reported.

And, in something of an embarrassment for the US military, The New York Times reported that insurgents in Iraq and Afghanistan have hacked into live video feeds from Predator drones, a key weapon in a Pentagon spy system that serves as the military’s eyes in the sky for surveillance and intelligence collection.

Though militants could see the video, The Times said there is no evidence they were able to jam the electronic signals from the unmanned aerial craft or take control of the vehicles, according to a senior defense official speaking on condition of anonymity.

Obtaining the video feeds can provide insurgents with critical information about what the military may be targeting, including buildings, roads and other facilities. The military has reportedly known about the vulnerability for more than a decade, but assumed adversaries would not be able to exploit it.

Monday, January 25, 2010

Obama and the Banks

By William Fisher

On the heels of a stinging defeat in the Massachusetts Senatorial race that dealt a major blow to passage of health care legislation, President Obama abruptly pivoted yesterday to change the subject to the state of the U.S. economy and to back sweeping regulatory reforms on “too big to fail” banks.

The president noted that it was those “too big to fail” banks that brought the U.S. financial system to the brink of total collapse a year ago by taking “reckless risks” to generate profits and bonuses.

Clearly struggling to channel the populist anger sweeping the country, he proposed legislation that would govern how big the big banks can become and what lines of business they would be permitted or forbidden to run.

Bank holding companies – which include the major commercial and investment banks – would be prohibited from engaging in the hedge fund or private equity fund fields.

The legislation Obama outlined would also seek to place limits on industry consolidation. It would achieve this by curbing the growth of the market share of liabilities at the biggest firms. The New York Times reported that an existing cap, put in place in 1994, put a limit of 10 percent on the share of insured deposits that can be held by any one bank. That cap would be expanded to include liabilities other than deposits.

Bank Holding Companies would also be barred from proprietary trading – using bank funds to invest on behalf of their own accounts, often resulting in banks taking investment positions against the interests of their shareholders.

Calling this “the Volcker Rule,” the president said commercial banks needed to get back to their core business -- taking customers’ deposits and lending money. Former Federal Reserve chairman Paul A. Volcker has long advocated this position.

Volker -- who reportedly fell out of favor with Treasury Secretary Tim Geithner and former Treasury secretary Larry Summers, now chairman of the president’s National Economic Council -- has long championed barring commercial banks from using deposits to finance trading in financial securities such as mortgage-backed securities. The losses sustained by commercial banks active in this kind of trading is generally thought to be a major cause of the 2008 crash and subsequent taxpayer bailout.

Most of the regulatory changes Obama proposed require legislation by Congress. This will not be easy, particularly since Republicans have already telegraphed their intention to oppose change – and since, as of Tuesday, the Democrats have lost their filibuster-proof 60-vote majority.

That loss came in the defeat of Democrat Martha Coakley in her quest to win the Senate seat occupied by the late Ted Kennedy for decades. Victory in the race went to Scott Brown, a conservative Republican, who bragged about being the Republicans’ 41st vote against the health care bill. He will be the 41st Republican in the senate, reducing the Democratic caucus to 59. Major legislation in the senate usually takes a super-majority of 60 votes to pass.

In a reliable poll, conducted the morning after the election, fifty-one percent of those Obama supporters backing Brown "said that Democratic policies were doing more to help Wall Street than Main Street."

In an interview with ABC News, Obama said Americans have a "feeling of remoteness and detachment" from Washington. "I think we lost some of that sense of speaking directly to the American people about what their core values are and why we have to make sure those institutions are matching up with those values," he said.

Last week, Obama said the American people provided "extraordinary assistance" to the financial industry and "continue to face real hardship in this recession." Yet at the same time, Wall Street is expected to dole out a record $145 billion in bonuses to its employees this year.

"Instead of sending a phalanx of lobbyists to fight this proposal, or employing an army of lawyers and accountants to help evade the fee, I suggest you might want to consider simply meeting your responsibilities. And I'd urge you to cover the costs of the rescue not by sticking it to your shareholders or your customers or fellow citizens with the bill, but by rolling back bonuses for top earners and executives," Obama said.

Predictably resisting the kinds of changes Obama proposed, the banking industry warned of its opposition. But Obama evidently anticipated that reaction. He said he expected an “army of industry lobbyists” to fight his proposals. “If these folks want a fight, it’s a fight I’m ready to have,” he declared.

The president also pushed the establishment of a Consumer Financial Protection Agency, to regulate financial products including credit cards and mortgages.

Scott E. Talbott, the chief lobbyist for the Financial Services Roundtable, which speaks for most of the major lenders and insurance companies, said the Obama proposals would “reduce liquidity and increase risk.” He added, “That is the direct opposite of the goals we want to achieve.”

Bank lobbyists also attacked the proposed CFPA. "Maybe the administration will decide that they want to turn this into a partisan battle but, coming out of health care, I don't think the majority of senators want to have a partisan battle," said Edward L. Yingling, president of the American Bankers Association. "They want a bipartisan bill."

But Harvard law school professor Elizabeth Warren, chair of the Congressional Oversight Panel created to oversee the banking bailouts, has said that without the CFPA, "the tag on U.S. financial regulation reform may as well say 'Made on Wall Street'" and is "the best indicator of whether Congress will reform Wall Street or whether it will continue to give Wall Street whatever it wants."

And New York Times columnist Paul Krugman proposed “a simple solution” for passing CFPA and other financial reforms: Make Republicans (or Democrats) vote against it. "Expose the hollowness of their populist posing," Krugman wrote. "In short, take on the banks -- and force those who are covering for them into the open."

But many expert observers of the current recession feel that little will be achieved in the way of financial services regulation until lobbyists’ money is removed from the political landscape.

One such observer is Dr. Jack N. Behrman, emeritus professor at the University of North Carolina business school, who served as JFK’s Assistant Secretary of Commerce for Domestic and International Business. He told Truthout, “No Congressional campaign funds should be permitted to or through either party organization, and lobbying should be permitted only where no funds are involved -- merely persuasion. PLUS -- no Congressman would be allowed to become a lobbyist until four years after retirement.”

The already favorable lobbying environment for the financial sector may become even more favorable as a result of Thursday’s 5-4 Supreme Court decision. The five Conservatives on the court ruled that corporations, as persons, have free speech rights. And since money is considered speech, spending limitations cannot be placed on corporations. The decision means that significant parts of the McCain-Finegold law limiting campaign contributions by corporations are unconstitutional. Corporations – including businesses, labor unions and not-for-profits – will now be free to spend as much money as they wish in support of specific candidates in Federal elections.

Anticipating reduced profitability in the financial sector, bank stocks fell sharply on Wall Street. Investors read in The Wall Street Journal that Obama’s “goal would be to deter banks from becoming so large they put the broader economy at risk and to also prevent banks from becoming so large they distort normal competitive forces."

The article above originally appeared in

About Indefinite Detention…

By William Fisher

President Obama’s decision to detain 47 of the just-under 200 remaining prisoners at Guantánamo without trial indefinitely is drawing scorn from legal experts and human rights advocates, who charge that the government simply does not have enough evidence to convict the detainees it says can not be tried but are “too dangerous to release.”

Typical is this comment from David Frakt, a Lieutenant Colonel in the US Air Force Judge Advocate General (JAG) Corps Reserve, Associate Professor and Director of the Criminal Law Practice Center at Western State University College of Law in Fullerton California. He is former lead counsel for the Office of Military Commissions Defense, who successfully represented Mohammed Jawad before the military commissions and won his release in habeas corpus litigation in 2009.

Frakt told IPS, “The administration's suggestion that they can't try 47 detainees, not because they don't have evidence of criminal wrongdoing, but because a criminal trial would necessarily involve disclosure of classified information, defies common sense.”

He gave three reasons.

“First, both under the Military Commissions Act of 2009 and under the Classified Information Protection Act (CIPA), in use in federal courts, there are elaborate mechanisms in place to protect classified information.”

“Second, given that the remaining detainees at Guantanamo have been held, on average, for over seven years, the likelihood that there is an ongoing need to protect classified sources and methods in such cases is remote.”

“Finally, it is hard to believe that there would be any greater risk of revealing important classified information than in the 9/11 trial, yet the administration is pressing forward with this and several other cases against high-value detainees who were kept in secret CIA ghost prisons and subjected to still classified methods of interrogation. The administration has acknowledged the right of all detainees to petition for habeas corpus in federal court. Why does the administration seem to believe classified information could be adequately protected in federal habeas litigation, but not in a criminal trial? It seems far more likely that there is simply inadequate admissible non-coerced evidence of criminality,” Frakt said.

Other legal scholars have weighed in with similar views. For example, Brian J. Foley, Visiting Associate Professor at the Boston University School of Law, told IPS, “ Many of the Executive's claims about danger and terrorism have been shown to be incorrect over the years. Last week's incident where an plane bound from New York to Kentucky was diverted for an emergency landing in Philadelphia because passengers freaked out when they saw a Jewish teenager engaging in an Orthodox prayer ritual, and the recent hours-long shutdown of Kennedy airport because a man from earthquake-ravaged Haiti mistakenly opened an emergency door in a terminal, show that our officials are over-reacting and cowardly.”

He said, “The Executive's claim that these people are 'too difficult to prosecute' really means that the Executive knows that the only evidence it has is weak or was obtained by coercion and is therefore very likely false.”

He added, “The Executive is afraid that the public will see what it has been up to, i.e., torture and fearful over-reaction. There are terms for this: cover-up and abuse of power come to mind. Shine the sunlight on these wretched, illegal, cowardly practices, and prosecute the people responsible for them - including members of the Obama Administration if they continue this cover-up and abuse of power.”

The American Civil Liberties Union (ACLU), always a major player in the Guantanamo detention issue, called the Obama policy “un-American.”

Jonathan Hafetz, a senior ACLU lawyer, told IPS, "By committing to hold suspected criminals indefinitely without charge, the Obama has embraced one of the most lawless and un-American policies of the Bush administration, one that turns the most fundamental principles of the Constitution on their head. The notion that the government can simply hold those it believes "dangerous", without putting them on trial, will ultimately serve neither our liberty nor our security."

And Chip Pitts, president of the Bill of Rights Defense Committee, asked, “How is this any better than Guantanamo itself and the spur such approaches give to al Qaeda?”

He told IPS, “No legal system worthy of the name can possibly imprison people indefinitely on the shameful argument that they are, in the absence of evidence and a fair trial, ‘too dangerous to release’.”

He called the move a “significant calcification of the lawless Bush approach of holding (often tortured) detainees indefinitely -- effectively, perhaps for life -- until the conclusion of some endless ‘war on terror’,” but said it is “actually undermining vital cooperation from European and Muslim allies, support for the rule of law itself and our country’s national standing and historical legacy.”

In a statement, Amnesty International USA, said, “Indefinite detention. There’s been talk about people who can’t be tried but who are too dangerous to release. This is absurd. People must either be charged with a crime and given a fair trial, or be released. End of story. That’s the way it works. Either there’s evidence against you or there isn’t.”

And Virginia Sloan, president of the widely respected Constitution Project, said, “Even if the Obama administration continues to work to close Guantánamo, by pursuing a policy of indefinite detention without charge, the damaging policies that embody the prison will continue, as will the negative effects to American values, the rule of law, and our nation’s reputation abroad.” She urged opposition to the use of military commissions.

The planned closing of the iconic prison facility on the island of Cuba has been, at the same time, one of the Obama Administration’s signature issues and most serious embarrassments. On his first day in office, the new president issued an executive order to close the prison by January 2010. That deadline has now been missed, as congress refuses to accept detainees even for trial in U.S. civilian courts and countries remain reluctant to accept them for resettlement.

For the past year, Justice Department lawyer Matthew G. Olsen has been leading a Task Force of national-security and law-enforcement officials who have been reviewing the files for each GITMO detainee. The review included an evaluation of any evidence against each man, how serious the threat would be if the detainee was released, and the government chances of prosecuting each prisoner successfully. The groups were then evaluated under the direction of Attorney General Eric H. Holder Jr.

But the process does not provide all the answers. For example, about 30 of the prisoners scheduled to be transferred to other countries are Yemenis. But transfers to Yemen have been halted following the attempted bombing of a Detroit-bound airliner on Christmas day. It is believed that this plot was developed by a Yemeni affiliate of Al Qaeda.

Holder is also charged with deciding whether those to be prosecuted should face a civilian trial or a military commission. He has announced that five detainees would face a military commission and five others — including Khalid Shaikh Mohammed, the self-described mastermind of the terrorist attacks of Sept. 11, 2001 — would be tried in civilian court. It is unclear what criteria the government uses to decide between military commissions and civilian courts.

Well done, Mr. Kennedy!

By William Fisher

OK, if you really read Mr. Justice Kennedy's opinion for the Supreme Court's majority in the Citizens United case, you just have to agree with his reasoning.

No one wants to limit free speech. It would be unconstitutional! The First Amendment is one of our proudest achievements.

So of course, if corporations are just like individual persons, they ought to enjoy exactly the same free speech rights as the rest of us do. No more, no less.

Right! But wait just a minim here folks. How did corporations get to be persons?

It seems sort of counter-intuitive. After all, corporations don't serve in the armed forces defending our country. They don't show up for jury duty. They don't marry and have kids and mortgages. They don't vote. In fact, come to think of it, they don't do almost all the things people do.

So how did they ever get to be people?

So I read the Constitution. And I couldn't find a word about corporations being people.

As a non-lawyer, I then figured there must be a bunch of legal eagles somewhere in the picture. Maybe one of those pesky activist judges.

So I looked.

What I learned from Wikipedia was that back in 1886, there was a case that went to the Supreme Court called Santa Clara County v. Southern Pacific Railroad Company. Before this case was argued, Supreme Court Justice Morrison Remick Waite simply pronounced, as follows:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

Thus, Wikipedia tells me, "the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument."

And then the court reporter duly entered into the summary record of the Court's findings that:

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

Since then, the Feds and many State governments have passed laws limiting the rights of these corporate "people" to express themselves. Clearly unconstitutional.

Wait, there's more. Wikipedia gives me a bit of special insight into this momentous decision. Here it is: "The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery -- a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts."

I was having trouble believing what I was learning, so I turned to my friend Peter Shane, a law professor at Ohio State and one of the country's most respected Constitutional scholars. Here's what he told me:

"The most amazing thing about corporate status under the Constitution is that this fundamental question was resolved by the Supreme Court without any real discussion whatever. Scalia is supposed to be an originalist? I doubt anyone in 1789 understood the First Amendment as a limitation on Congress's capacity to regulate corporations. As for corporations being 'persons' under the Fourteenth Amendment, was the purpose of the Civil War to free corporations from state control? This is historical nonsense."

He also reminded me of the Roberts confirmation hearing I watched. "Remember," he said, "how Chief Justice Roberts said he would just be an umpire on the Court, calling balls and strikes? The Citizens United decision just exposes once again how radically activist the Roberts Court is, inventing law as it goes along. Roberts makes Rehnquist look like Brennan. The American people should immediately demand that Congress propose a constitutional amendment to make the right to vote in all elections a federal right and to authorize Congress and the states to regulate corporate participation in electoral politics."

Well, good luck with that Amendment, Peter. That's a long and tortuous process.

Meanwhile, we'll all have to take a big breath and sit back and wait to see if an even greater torrent of corporate money starts pouring into the political process - though it's not easy to visualize anyone actually having any more money.

Like a zillion other people, I invest in a bunch of mutual funds and a few equities. And like the rest of us, I do that to earn money. That's as far as I want the companies I invest in to go in representing me. Making money.
That's it.

I don't want to hear them saying they represent me politically or in any other way. They don't speak for me. Who they actually speak for is arguable. You might say they speak for their shareholders, that it's the shareholders who own the company. If that's true, then us shareholders should get to have a vote before the first penny of political booty is dispensed.

Corporations aren't doing that now. With the Supremes behind them, why would they start giving me a voice? Besides, that would make me a slave-owner, and I can't afford the housekeeping help I have now.

Some pundits have been saying that the Citizens United decision was downright radical. Well, I guess you could say that. After all, it did reverse about a hundred years of jurisprudence.

But what keeps me confused is that if the guys in the black robes wanted to be truly radical they could overturn the 1886 Santa Clara County decision.

Then we wouldn't have to be running about worrying about what more mischief the corporations will do with their newly reaffirmed personhood.

Thursday, January 21, 2010

BAGRAM: US Releases Prisoners’ Names

By William Fisher

After years of stonewalling, the U.S. Defense Department has released the names of people imprisoned at the notorious Bagram Air Base in Afghanistan.

Made available in response to an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) lawsuit, the list contains the names of 645 prisoners who were detained at Bagram as of September 2009.

But the government blacked-out other vital information requested by the civil rights group -- including prisoners’ citizenship, length of detention, country where captured, and circumstances of capture.

The government’s previous position was that the public had no right to have this information.

Melissa Goodman, staff attorney with the ACLU National Security Project, said, “Releasing the names of those held at Bagram is an important step toward transparency and accountability at the secretive Bagram prison, but it is just a first step. Hundreds of people have languished at Bagram for years in horrid and abusive conditions, without even being told why they’re detained or given a fair chance to argue for release.”

But she added, “The information the government continues to withhold is just as vital as the names of prisoners. Full transparency and accountability” about Bagram requires full disclosure. “The public has long been kept in the dark about what goes on at Bagram. It is time to shine a bright light on the secretive prison.”

It was not clear whether the names of those released also included those held in field detention sites around the country where some detainees are taken initially before being placed in the general detainee population.

The ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan in April 2009.

When documents were not forthcoming, the ACLU filed the FOIA lawsuit in September 2009, seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, records relating to the rules and agreements that govern the facility, and documents pertaining to the conditions of confinement and status review process afforded prisoners.

The U.S. government's Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information has been publicly available about the secrecy-shrouded facility or the prisoners held there. The U.S. government has been detaining a previously-unknown number of prisoners at the facility since 2002. Some have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment.

The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, in 2002, two Afghan prisoners at Bagram were fatally beaten by US troops.

The US military has recently built a modern new prison to take the place of the dilapidated and inefficient original unit. The Americans are in the process of handing management of this new facility over to the Afghan authorities.

Nonetheless, there is growing public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantánamo.

Former detainees have described abusive treatment at the base, especially in the first two or three years it was in existence. But in the last several years, detainees who have been released described improved conditions.

While the majority of the detainees at Bagram are Afghan, a small number are foreigners who are accused of fighting with the Taliban. Also held there are a handful of detainees captured in other countries, according to human rights lawyers and military detention officials. The current detainee population is about 750, according to military detention officials, but in September, when the information request was made, there were about 100 fewer detainees. The numbers have grown over the past few months because of the increased military operations by American forces.

An investigation by the British Broadcasting Corporation (BBC) has revealed that former detainees at Bagram were beaten, deprived of sleep, and threatened with dogs.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, told IPS, "The BBC investigation provides further confirmation of the United States' mistreatment of prisoners at Bagram. These abuses are the direct consequence of decisions made at the highest levels of the U.S. government to avoid the Geneva Convention and forsake the rule of law.”

The Obama Administration has sought to deflect some of the heat it is getting from civil rights organizations and legal experts over its management of Bagram. For example, it recently announced a set of new procedures for conducting periodic assessments of the status of each prisoner.

But, according to Tina Monshipour Foster, Executive Director of the International Justice Network – the only US organization actively litigating on behalf of Bagram detainees – “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. 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.“

She told IPS, “Only a lawyer who is independent from the government can effectively assist a detainee with his defense against allegations being made by the government.“

The Pentagon denied the BBC’s charges of harsh treatment and insisted that all inmates in the facility are treated humanely.

Another prominent human rights organization, the U.K.-based Reprieve, called on the British Government to take action concerning two Pakistanis who it says the U.K. helped render there from Iraq.

“These men were never in Afghanistan until the UK and the US took them there,” Stafford Smith told IPS. “It is the height of hypocrisy to take someone to Bagram and then claim that it is too dangerous to let them see a lawyer. Even Guantánamo Bay is better than this.”

Since coming to office, US President Barack Obama has banned the use of torture and ordered a review of policy on detainees, which is expected to report next month. But unlike its detainees at the US naval facility at Guantanamo Bay in Cuba, the prisoners at Bagram have no access to lawyers and they cannot challenge their detention.

In April 2009, in a lawsuit brought in federal court by the International Justice Network, Judge John D. Bates ruled that three Bagram prisoners -- two Yemenis and one Tunisian citizen – had the right to petition U.S. courts for their release because they were not Afghans captured on the Afghan battlefield.

But he also ruled that for a fourth appellant, 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. Judge Bates dismissed the petition of 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 US courts for his release.

Afghan government sources have said prisoners will have a right to appeal their detentions once the US transfers its authority.


By William Fisher

Is the administration of President Barack Obama concealing evidence suggesting that three suicides at Guantanamo Bay were not suicides at all?

That is a question human rights groups, legal experts and national security specialists are pondering on the heels of an article in Harper’s Magazine by Scott Horton presenting whistleblower testimony suggesting that the three dead prisoners likely suffered particularly abusive interrogations in a remote corner of the base in the hours before they died, and their deaths were then passed off as suicides by the Bush Administration.

Horton presents new evidence from then-Sergeant Joe Hickman, a whistleblower formerly stationed in Guantánamo, that the three dead prisoners were taken to a remote corner of the base in the hours before they died. There they were tortured, GITMO officials came up with the suicide cover, and the Bush Administration capitalized on the panic by ordering further abuse of prisoners, and by spreading self-serving and poisonous lies about the dead men, adding to their families’ distress.

Horton says that President Obama’s Justice Department has refused to fully investigate the incident.

Clara Gutteridge, who is a secret prisons investigator for the London-based legal advocacy group Reprieve, said, "Scott Horton’s investigation indicates that, as usual, Guantánamo’s traumatised prisoners are telling the truth about their treatment. According to our clients, in addition to the secret CIA facility -- and another house on the base where some prisoners were taken to be held in solitary confinement -- there was also a black site run by US marines on Guantanamo Bay Naval Base. It was located outside the main prison, and was known amongst the prisoners as a place where people were taken to be 'broken.' When will these prisoner’s testimonies finally be taken seriously? And when will the perpetrators of these terrible crimes finally face justice?"

George Brent Mickum IV, an attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths."

According to the US Navy, Gitmo detainees Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi and Yasser Talal Al-Zahrani were found hanged in their cells on June 9. 2006. The US military initially described their deaths as "asymmetrical warfare" against the United States, before finally declaring that the deaths were suicides that the inmates coordinated among themselves.

But a report from Seton Hall University Law School, released last fall, cast
doubt on almost every element of the US military's story. It questioned, for
example, how it would have been possible for the three detainees to have stuffed rags down their throats and then, while choking, managed to raise themselves up to a noose and hang themselves.

The report stated: “There is no explanation of how each of the detainees, much less all three, could have done the following: braided a noose by tearing up his sheets and/or clothing, made a mannequin of himself so it would appear to the guards he was asleep in his cell, hung sheets to block vision into the cell—a violation of Standard Operating Procedures, tied his feet together, tied his hands together, hung the noose from the metal mesh of the cell wall and/or ceiling, climbed up on to the sink, put the noose around his neck and released his weight to result in death by strangulation, hanged until dead and hung for at least two hours completely unnoticed by guards.”

Army Staff Sergeant Joseph Hickman told Harper's magazine that he was made aware of the existence of a secret detention center at Guantanamo, nicknamed by some of the guards "Camp No," because "No, it doesn't exist."

According to Hickman, it was generally believed among camp guards that the facility was used by the CIA.

Hickman also said there was a van on site, referred to as the "paddy wagon,"
which was allowed to come in and out of the main detention area without going through the usual inspection. On the night of the three detainees' deaths, Hickman says he saw the paddy wagon leave the area where the three were being detained and head off in the direction of Camp No. The paddy wagon, which can carry only one prisoner at a time in a cage in the back, reportedly made the trip three times.

Hickman says he saw the paddy wagon return and go directly to the medical
center. Shortly after, a senior non-commissioned officer, whose name Hickman didn't know, ordered him to convey a code word to a petty officer. When he did, the petty officer ran off in a panic.

Both Hickman and Specialist Tony Davila told Harper's that they had been told, initially, that three men died as a result of having rags stuffed down their throats. And in a truly strange turn of events, the whistleblowers say that -- even though by the next morning it had become "common knowledge" that the men had died of suicide by stuffing rags down their own throats -- the camp commander, Col. Michael Bumgarner, told the guards that the media would "report something different."

According to independent interviews with soldiers who witnessed the speech, Bumgarner told his audience that “you all know” three prisoners in the Alpha Block at Camp 1 committed suicide during the night by swallowing rags, causing them to choke to death. This was a surprise to no one—even servicemen who had not worked the night before had heard about the rags.

But then Bumgarner told those assembled that the media would report something different. It would report that the three prisoners had committed suicide by hanging themselves in their cells. It was important, he said, that servicemen make no comments or suggestions that in any way undermined the official report. He reminded the soldiers and sailors that their phone and email communications were being monitored. The meeting lasted no more than twenty minutes. (Bumgarner has not responded to requests for comment.)

Scott Horton of Harper's reports: "The presence of a black site at Guantánamo has long been a subject of speculation among lawyers and human-rights activists, and the experience of Sergeant Hickman and other Guantánamo guards compels us to ask whether the three prisoners who
died on June 9 were being interrogated by the CIA, and whether their deaths
resulted from the grueling techniques the Justice Department had approved for the agency’s use—or from other tortures lacking that sanction."

Two of the dead prisoners were plaintiffs in a civil lawsuit brought by the Center for Constitutional Rights (CCR) on behalf of the deceased and their families, Al-Zahrani v. Rumsfeld.

CCR Attorney Pardiss Kebriaei, lead counsel in the civil case surrounding the deaths, which charges the government and 24 federal officials with responsibility for the abuse and wrongful death of the deceased, said, "President Obama’s Department of Justice has tried to keep our case out of the courts, beyond the reach of the legal system and any oversight or accountability. It is critical that the full story of how our clients died and who was responsible be brought to light in open court before an impartial judge. Serious gaps and questions remain, more than three years after the deaths."

Tuesday, January 19, 2010

UK Government Relents in Torture Document Release

By William Fisher

After months of denial, the British government has agreed to release secret documents that lawyers say could prove that MI5 agents were present during the CIA’s torture of a British resident held by the US government for eight years.

Shaker Aamer, a prisoner at Guantanamo Bay, Cuba, claims he was tortured during his detention in Afghanistan and that Britain was complicit in that torture by sending agents to interview him. He says British intelligence agents were present during some of his torture.

Aamer’s lawyers went to the High Court in London to force the release of documents that they believe will help prove his case against the UK Government.

Aamer wants access to the British intelligence documents because he thinks they will help him in his fight to get out of Guantanamo.

The British Foreign Secretary, David Miliband, has issued repeated denials that Britain engages in or condones torture.

Aamer, a 41-year-old citizen of Saudi Arabia, was captured in Afghanistan in 2001 and has been held at Guantanamo for close to eight years. Married to a Briton, he is considered a British resident and has indefinite leave to stay in the UK.

After resisting for four months, the British Government last week suddenly agreed to surrender the secret documents to Aamer's security-cleared lawyer in the US. Aamer says his confessions were made under duress. The US claims he is a terror suspect but has not charged him with any offence.

Previously, the Government asserted that full disclosure could jeopardize the UK security services and intelligence sharing with the US.

Aamer’s American lawyer, George Brent Mickum, IV, said his client had filed a habeas corpus petition in 2007, which was stayed by US government appeal. He was charged with being Osama bin Laden’s translator.
But Aamer was cleared for release from Guantanamo in 2007.

Mickum told IPS he might ask for a second hearing on the habeas petition but “I don’t actually know what my client has been charged with.” He said the reason is that, after Aamer’s case had its annual review, the government could have added charges or dismissed all the original charges, and we wouldn’t know about it.” The US government claims it is not obligated to inform prisoners or their attorneys.

Asked about the government’s rationale for continuing to detain a person already cleared for release, Mickum speculated that the US “finds it impossible to admit a mistake. ” He added, “The government will go to great lengths to keep torture out of the public eye.”

The UK Foreign Office has made two requests to the US for Aamer’s release, including one recent request from Foreign Secretary David Miliband. But Aamer's British lawyer told the High Court that the government’s U-turn showed the Government had not "done all it could" to secure his release.

Aamer has made a series of allegations that MI5 officers were present during the torture he suffered while in U.S. custody in Afghanistan. Among other things, the 42-year-old has claimed that he was denied sleep for nine days, beaten regularly and threatened with further torture.

He has said: “One of them - a British MI5 agent - was standing and they started talking to me in different languages: English, French, Arabic and shouting. I felt someone grab my head and start beating my head into the back wall so hard that my head was bouncing. They were shouting that they would kill me or I would die.”

Aamer has written of his imprisonment in Afghanistan, “Once after a few days of sleep deprivation they took me to the interrogation room and the intelligence team starting coming one after another and the room was full, up to ten or more. One of them, a British MI5 agent, was standing and they started talking to me in different languages—English, French, Arabic—and shouting. I started shouting with them and after that I do not know what happened. All I know is that I felt someone grab my head and start beating my head into the back wall—so hard that my head was bouncing. And they were shouting that they would kill me or I would die. After this, they left the room and told to think and tell them the truth or I would die. I was threatened with rendition to Egypt, the Northern Alliance, Israel and/or Jordan to be tortured. I was very scared.”

He alleges that on another occasion he was visited by an MI5 agent called 'John' who told him there was nothing he could do to help him. Aamer says he saw another man and a female British agent calling herself Sally who asked more questions.

The Government is currently fighting a separate legal fight to avoid revealing information that is alleged to prove that MI5 knew about and profited from the torture of British resident Binyam Mohamed. Mohamed, also a British resident, was released from Guantanamo in 2009 without charge after years of imprisonment.

In a related development, a group of British MPs is suing the CIA to get it to release information about alleged UK involvement in the secret rendition of terror suspects.

The group -- led by Conservative MP Andrew Tyrie -- has filed a complaint in a district court in Washington DC seeking a judicial review of the CIA's failure to disclose information.

They are demanding to see documents on extraordinary rendition, secret detention and the coercive interrogation of suspected terrorists.

The MPs, from the All-Party Parliamentary Group, decided to launch what they believe is a landmark legal action after Freedom of Information requests in the US and UK were rejected or where information released was incomplete or heavily redacted.

Andrew Tyrie, a Conservative MP who is a member of the group said, "The current drip-drip of information on rendition is hugely damaging. To achieve closure on rendition we need disclosure. "It is in everyone's interests that the truth on the US rendition program comes to light."

The information requests were made to the CIA, FBI and the Department of Homeland Security and UK government departments. It is thought to be the first time the same information has been requested in different jurisdictions under their respective freedom of information legislation.

The group has also written to President Obama calling on him to publish secret documents that allegedly contain evidence of US and British complicity in torture.

The group wants to know about :

Agreements between the US and UK on rendition - the moving of terrorist suspects from one country to another for interrogation and possible imprisonment without legal protection.

Agreements between the US and other governments on rendition and UK participation and support of US rendition and secret detention programs.

The use of Diego Garcia, a British territory in the Indian Ocean, to facilitate rendition, including the identity of two suspects rendered through its airspace, where they were traveling from and their destination.

Alleged terror plots, specific detainees and the transfer of detainees from UK control to US control.

The group plans to make similar requests to Australian government departments.

Accountability Questions After Revelations of Immigrant Deaths

By William Fisher

In the treatment of thousands of immigrants held in government detention, the actions of the Obama administration are falling far short of its promises of transparency and accountability.

That is the view of David M. Shapiro, Staff Counsel with the National Prison Project of the American Civil Liberties Union (ACLU). He spoke with Truthout on the heels of a New York Times exposé of the secrecy surrounding the deaths of 107 immigrants while in detention.

The Times article by Nina Bernstein, which was published last week, alleged that officials of the Immigration and Customs Enforcement agency (ICE), fearful of media scrutiny, conspired to conceal the deaths of a number of detained immigrants.

Bernstein wrote that “…it is now clear, the deaths had already generated thousands of pages of government documents, including scathing investigative reports that were kept under wraps, and a trail of confidential memos and BlackBerry messages that show officials working to stymie outside inquiry.”

The documents were obtained by The Times and the ACLU under the Freedom of Information Act. They relate to most of the 107 deaths in detention counted by ICE October 2003, when the agency was created within the Department of Homeland Security. The documents also revealed ten deaths in detention that had never been disclosed by the government.

Attorney Shapiro told Truthout that two issues play a major role in creating an environment in which death and deprivation in detention become inevitable. The first issue is the absence of any enforceable standards for the maze of 400 federal, municipal, county and private jails used by ICE to house immigrants. The second issue is a medical care regimen that allows the government such wide discretion that it can deny urgent care, including biopsies for suspected cancers and treatment of heart conditions.

The Obama administration has declined to produce system-wide enforceable standards for the prisons its uses to house immigrants. Shapiro declined to speculate on the administration’s rationale, but others have said that it is based on the wide differences between the various types of facilities used by the government. It has also failed to produce a medical care program that is binding on ICE personnel and its contractors. A number of the reported deaths in detention have been caused by ICE’s failure to provide timely medical interventions in emergency situations. Some observers believe that the rationale for deciding against providing “long term” medical care – for example, biopsies – is that ICE detention is largely short-term.

Yet ICE and its DHS parent department have acknowledged that many immigrants are held in custody for years. ICE has also admitted many of the deficiencies in its detention system and have vowed to initiate reforms. But Shapiro contends that the most recent documents obtained by the ACLU show that ICE’s culture of secrecy has not changed.

Bernstein’s New York Times article says that the documents show how officials — some still in key positions — used their role as overseers to “cover up evidence of mistreatment, deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts that pointed to substandard care or abuse.”

The article details a litany of abuses. For example:

“As one man lay dying of head injuries suffered in a New Jersey immigration jail in 2007, for example, a spokesman for the federal agency told The Times that he could learn nothing about the case from government authorities. In fact, the records show, the spokesman had alerted those officials to the reporter’s inquiry, and they conferred at length about sending the man back to Africa to avoid embarrassing publicity.”

“In another case that year, investigators from the agency’s Office of
Professional Responsibility concluded that unbearable, untreated pain had been a significant factor in the suicide of a 22-year-old detainee at the Bergen County Jail in New Jersey, and that the medical unit was so poorly run that other detainees were at risk.”

“The investigation found that jail medical personnel had falsified a medication log to show that the detainee, a Salvadoran named Nery Romero, had been given Motrin. The fake entry was easy to detect: When the drug was supposedly administered, Mr. Romero was already dead.”

“Yet those findings were never disclosed to the public or to Mr. Romero’s
relatives on Long Island, who had accused the jail of abruptly depriving him of his prescription painkiller for a broken leg. And an agency supervisor wrote that because other jails were ‘finicky’ about accepting detainees with known medical problems like Mr. Romero’s, such people would continue to be placed at the Bergen jail as ‘a last resort’.”

The Times article describes a number of telephone conference calls among ICE officials in which they discussed one of the deaths and how to avoid public and media attention. It says, “Among the participants in the conferences was Nina Dozoretz, a longtime manager in the agency’s Division of Immigration Health Services who had won an award for cutting detainee health care costs. Later she was vice president of the Nakamoto Group, a company hired by the Bush administration to monitor detention. The Obama administration recently rehired her to lead its overhaul of detainee health care.”

Detainees include immigrants who have applied for asylum in the U.S. and others awaiting hearings before being deported. The number of people detained has soared to more than 400,000 a year.

As of today, there are no legally enforceable rules governing immigration detention, despite an order by a federal judge to create such rules. The Obama administration refused the judge’s order, which followed a petition filed in court by former detainees. Instead, ICE chose to follow an inspection system instituted during the administration of George W. Bush. That system relies in part on private contractors. Judge Denny Chin ruled that the agency’s failure to respond to the plaintiffs’ petition for two and a half years was unreasonable.

DHS contended that rule-making would be ”laborious, time-consuming and less flexible” than the review process now in place. It said its current inspection system would “provide adequately for both quality control and accountability.”

According to Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild, one of the plaintiffs, the government’s decision “disregards the plight of the hundreds of thousands of immigration detainees.” She claims that the absence of enforceable rules is the major cause of problems of mistreatment and medical neglect. “The department has demonstrated a disturbing commitment to policies that have cost dozens of lives,” she said.

ICE inherited its lack of transparency and accountability from its past, when it was called the Immigration and Naturalization Service (INS). For decades, INS was a dreaded word among immigrants. Its detention system then was essentially the one it operates today, though on a smaller scale. It was generally thought of as America’s most secretive prison system.

ICE has committed many of the same kinds of mistakes that contributed to INS’s poor reputation. Many of these mistakes have involved erroneous deportations. For example:

Duarnis Perez, a native of the Dominican Republic, became a U.S. citizen at 15 when his mother was naturalized. But he didn't know that meant he was also a citizen. He thought he was an illegal immigrant, and so did the authorities. He was deported and subsequently arrested trying to sneak back into the U.S. from Canada. Perez spent almost five years in prison for unlawful reentry. But when he was released in 2004, an ICE official reviewed his file and told him he had been a citizen all along.

The Perez case became one of a growing chamber of horrors coming under increasing scrutiny by Congress, the Courts, and civil liberties advocates.

ICE officials downplay the problem. "ICE does not detain United States citizens," said spokesman Richard Rocha, adding that agents thoroughly investigate people's claims of citizenship. "ICE only processes an individual for removal when all available facts indicate that the person is an alien," he said.

Another case involved Majed Chehade, a 64-year old German citizen whose wife, three children, and grandson are U.S. citizens. Chehade owns a home in Massachusetts and is the export director of a German manufacturing company. He was on his way to visit his daughter in December, 2006, when he was detained at Las Vegas Airport. He was taken to a local jail, where he was subjected to strip and visual cavity searches, denied access to medical care and his prescription medications, and told that if he wanted to return to the U.S., he would have to spy on behalf of the government.

In that case, a federal judge rejected the government's request to have the case dismissed, finding that strip searches of immigrants arriving in the country, including those housed at local detention facilities, are constitutional only if supported by reasonable suspicion. The court further held that the immigration agents' actions could be considered "extreme and outrageous conduct" and allowed an inquiry into the legality of the government's attempt to conscript a foreign national to spy to move forward.

Civil liberties organizations say these are not aberrations or isolated cases. They contend that they show a clear pattern of bureaucratic inefficiency, a lack of respect for the law, and the absence of clear guidelines for immigration officers.

A Washington Post investigation concluded that the system was “a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages.”

Last February, Department of Homeland Security (DHS) Secretary Janet Napolitano appointed Dora Schriro as a Special Advisor on Immigration and Customs Enforcement (ICE) and Detention and Removal. The new position was created to focus exclusively on the significant growth in immigration detention over the last five years, and to focus on the arrest priorities at ICE.

In an April letter to Human Rights First, a legal advocacy group, Schriro said she was “dedicating these first months to the close examination of issues impacting detention and removal including arrest priorities, detention decisions and practices, and the utilization of alternatives to detention.”

But rights groups say little was heard from her following her letter, and she later resigned to accept a post with the New York City police department.

The ACLU has filed a public records request asking the Obama administration to make public changes it is making to a federal immigration enforcement program that allows local police to arrest and process illegal immigrants.

And Amnesty International (AI) has recommended that “Detention should only be used in extraordinary circumstances, be justified in each individual case and be subject to judicial review.” Nevertheless, AI says that in the U.S., immigrants can be detained for months or years without a judicial warrant.

The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.

Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.

Addressing that issue, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.

Contrary to widespread public misunderstanding, immigration offenses are civil, not criminal, matters.

ICE practices are currently attracting some attention in Congress. Congresswoman Lucille Roybal-Allard, a California Democrat – and the first woman of Mexican ancestry to be elected to the U.S. Congress -- has introduced legislation to help to ensure that detainees, especially unaccompanied children, are treated humanely, receive access to legal representation and obtain needed medical care.”

Tuesday, January 12, 2010

Happy Birthday, GITMO

By William Fisher

As the world yesterday marked the beginning of the ninth year of detention at the U.S. Navy base at Guantánamo Bay, Cuba, a leading legal advocacy group filed suit against the Library of Congress for firing Guantanamo’s former chief prosecutor for writing articles criticizing the use of military commissions to try suspected terrorists.

Col. Morris Davis, who was employed at Library's Congressional Research Service (CRS), resigned as the military commissions' chief prosecutor in October 2007, and became an outspoken critic of the commissions, including writing articles, giving speeches, and testifying before Congress that the system is fundamentally flawed.

In the lawsuit, the brought by the American Civil Liberties Union (ACLU), alleges that Davis was fired because he wrote articles critical of the commissions. The ACLU contends that the discharge violates Davis's rights of free speech and due process.

The ACLU lawsuit came as advocacy groups in several parts of the world conducted events to mark the eighth anniversary of the first detainees arriving for imprisonment without charge or trial at Guantánamo. The first batch of 20 prisoners arrived in Cuba in January 2002, after a 20-hour flight from Afghanistan, to be housed in what would grow into the controversial Guántanamo Bay detention center.

In Washington, human rights advocates and lawyers of the detained men held a rally, a march, and a public briefing to outline current issues related to Guántanamo. They demanded that the president make good on his pledge to close the prison, and declared their opposition to any plan for holding prisoners without charge or trial in the U.S.

Formerly detained men and detainee families addressed President Obama via a combination of video, audio, and written letters.

Lakhdar Boumediene called in to the briefing at the National Press Club from his home in France, and Omar Deghayes joined the briefing from his home in the United Kingdom. Boumediene was the lead plaintiff in the landmark Supreme Court case of 2008, Boumediene v. Bush, in which the Court affirmed that Guantànamo detainees have the right to file writs of habeas corpus in U.S. federal courts. He was released on May 15, 2009. As a child, Omar Deghayes settled with his family in the U.K. as a refugee from Libia. Picked up in Pakistan and sent to Bagram and Guantánamo, he was blinded in one eye at the base in 2004. Deghayes was released from Guantanamo to the U.K. on December 19, 2007.

Detainee lawyers and human rights activists from the Center for Constitutional Rights (CCR) and Human Rights Watch (HRW) spoke of “Obama’s Guantánamo,” addressing issues including “the continued and worsening lack of transparency, resettlement for men who cannot return to their home countries, the threat of indefinite detention schemes in the U.S., and the halt of transfers to Yemen and related responses to the recent terrorism attempt.”

CCR attorney Shayana Kadidal told IPS, “Right now, more than half of the detainees at Guantanamo – over 130 of the 198 left – are cleared for release, having spent eight years in detention. The most helpful thing President Obama can say now about the prison is simply that it is full of men who never should have been there in the first place.”

He said failure to admit error was “a hallmark of the Bush administration,” adding, “Obama’s failure to announce what everyone elsewhere in the world already understands -- that men are wrongfully detained at Gitmo – has allowed his opponents to claim that the men left are “suspected terrorists” representing the ‘hard core’ of the original population. Those claims are absurd but they serve to create resistance to resettling (at home and abroad) detainees who need asylum from home countries that torture, to sending innocent men back to Yemen because of the wrongful acts of others in that country, and to bringing the cases of the few who will be prosecuted into the federal courts for that purpose.”

“Obama’s failure to assert leadership by countering the other side’s misinformation and clearly saying that we have made mistakes in detaining men at Guantanamo has allowed the other side to spread misinformation and set the agenda, and has done incalculable damage to his efforts to close Guantanamo,” he declared.

Frida Berrigan, a Brooklyn, NY organizer with a group known as Witness Against Torture (WAT), said, “I do not relish the idea of fasting. But, President Obama’s promises of change have atrophied into empty rhetoric. Our Fast and Vigil for Justice is a small attempt to answer the ultimate question Guantánamo poses: how do we conquer fear and remain human?”

Earlier, WAT members held a rally in front of the White House to protest the lack of progress toward justice for detainees since Obama took office and demanded “true change” from the administration.

The ACLU lawsuit against on behalf Col. Morris Davis accuses the Library of Congress of violating Davis's rights of free speech and due process. The complaint says, “Col. Davis now brings this Complaint for violation of his First and Fifth Amendment rights, seeking declaratory and injunctive relief, including reinstatement to his Assistant Director position, and damages.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, told IPS, "Col. Davis has a right to inform the public about his personal views on these issues of immense public concern, and the public has a First Amendment right to hear those opinions. The Library's actions in firing him for expressing those views in public violate the First Amendment and should not be permitted."

The ACLU wrote to the Library of Congress in December seeking Davis’s reinstatement. The Library denied the request.

Col. Davis, a United States Air Force officer and lawyer, served as the third Chief Prosecutor in the Guántanamo military commissions. He resigned from the position and retired from active duty in October 2008.

In resigning, Morris that the trials were “rigged from the start.” He charged that the process had been manipulated by Bush Administration appointees to foreclose the possibility of acquittal.

Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."

On GITMO’s’eighth anniversary, 198 prisoners are still being held there. President Obama has released 42 men since taking office on January 20, 2009, but has already admitted that he will miss his self-imposed deadline for the prison's closure on January 22.

Sunday, January 10, 2010

What to do with The UnderBomber

By William Fisher

Well, the underpants bomber has now pleaded “not guilty” to a bunch of charges stemming from his unsuccessful efforts to blow up a Detroit-bound airliner on Christmas day.

The not guilty stuff is a legal formality he will use to try to negotiate some kind of plea deal. If he’s not successful, he’ll be tried, found guilty and, in light of the charges against him, sentenced to life in prison without the possibility of parole.

Just like the ‘shoe bomber’ – Richard Reid.

But let me be permitted to wonder aloud whether this is our wisest course. And to ask readers to tell me what they think.

This notion isn’t likely to win me any popularity contests, but there might just be a better way to for us to handle Mr. Abdulmutallab. A win-win way.

I know there are lots of folks who would just like to put Abdulmutallab away forever. Lock him up and throw away the key. Then we’d never have to think about him again. That’s certainly the conventional way we handle his kinds of crimes.

But, just for a minute, let’s take a step back and consider: We don’t yet know much about this guy. We know he’s 23 years old. And we know that, based on the sound of some of his Internet writings, he has been lonely, isolated, depressed. We know he is a deeply religious Muslim, but we don’t yet know why he set out to kill us. We don’t yet know what motivated him to become a jihadi.

But we probably can assume that once he gets a prison sentence that contains the words ‘without possibility of parole,’ he’ll be an even scarier jihadi with each passing year. And attempt to turn his fellow inmates into jihadis as well.

But what would happen if we tried to give him an incentive to not be a jihadi? What if we sentenced him to, say, 20 years to life with the possibility of parole? And what if we were able to marshal the resources to really work with this guy in the slammer? Teaching him about our people, our country, our values. Could we get him to give up on jihad? Could we turn him? Could he end up like us?

Well, the prospects are probably razor-thin. The re-education of Mr. Abdulmutallab would take a considerable time. And our Bureau of Prisons would have to do a lot of outside-the-box thinking to come up with and execute a plan. But do we have a lot to lose? Wouldn’t seem so.

After all, we as a people are supposed to believe in redemption, resurrection, rehabilitation. Our prison system is always saying they too believe in these values, but they do next to nothing to make them a reality. American prisons and Corrections don’t belong in the same sentence.

I wouldn’t even venture a guess about the odds, but there’s always a chance that Mr. Abdulmutallab might just end up as a poster child for civilized behavior.

And that tantalizing possibility might just present us with a rare opportunity. Hey, you never know!

What are your thoughts, readers?

Friday, January 08, 2010

W's Influence Continues...

By William Fisher

While the unsuccessful attempt to bring down a Detroit-bound airliner on Christmas day captured the headlines and put major political roadblocks in the path of prisoner release from Guantanamo Bay, the courts – far more quietly -- continued to play a major role in influencing the detention issue.

That influence was demonstrated by two cases this week.

In Washington, D.C., a three-judge panel of the U.S. Court of Appeals minced its way toward fashioning new rules to govern habeas corpus decisions brought by three prisoners at the Bagram airbase in Afghanistan.

And a decision by three different judges of the same court affirmed the government's authority to hold people taken prisoner in the fight against al-Qaida and the Taliban – thus making it more difficult for detainees to challenge the basis of their detention.

On Thursday, the DC Circuit court heard oral arguments in a case known as Maqaleh v. Gates -- the first legal challenge in U.S. courts on behalf of prisoners detained at Bagram Airbase in Afghanistan. The case was brought by the International Justice Network (IJNetwork) on behalf of two Yemenis and one Tunisian citizen, each seized outside of Afghanistan from third countries and held without charge or trial in U.S. custody for more than six years.

Evidence suggests that each man was shuttled through U.S.-run secret prisons (“black sites”) for torture and interrogation, prior to ultimately being transferred to Bagram—itself the site of well-documented human rights violations—where they continue to be subjected to indefinite detention under sole U.S. military custody.

During the entire six-year period while he has been in U.S. custody, Maqaleh has not been permitted to see his family, and has been denied any access to lawyers or a court of law. Because he is being held virtually incommunicado, his father authorized IJNetwork to file a petition for a writ of habeas corpus in U.S. court seeking his release. Though his case has now been pending for over three years, the government continues to refuse to allow Maqaleh to communicate with his attorneys.

In April 2009, Judge John D. Bates ruled that Maqaleh, and two other petitioners in the case, Amin al Bakri and Redha al Najar, have a Constitutional right to petition U.S. courts for a writ of habeas corpus.

Judge Bates’s decision was based on the Supreme Court’s decision in Boumediene v. Bush, which established that detainees held in U.S. custody at Guantanamo had a Constitutional right to file habeas corpus petitions in U.S. courts. But before any of the Bagram detainees could have his day in court, the Obama Administration appealed Judge Bates’ decision—arguing that none of the 600 detainees at Bagram have any rights under U.S. law.

As the organization representing the Bagram detainees, the IJNetwork, has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody — including Bagram.

Though President Obama has vowed to close Guantanamo, the Department of Justice continues to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights. As the organization representing the Bagram detainees, IJNetwork has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody— including Bagram.

Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.

But Tina Foster, executive director of the International Justice Network (IJN), who argued for the Bagram detainees, told IPS, “Our clients are three innocent men who have been imprisoned without charge for seven years and haven't even been told why. The fundamental question at issue in these cases is whether the United States government can seize individuals from peaceful countries anywhere in the world and imprison them without charge indefinitely, based solely on the location of the prison facility where the government decides to detain them.”

She added, “The position of the Obama administration is that it can do so, as long as it uses Bagram, instead of Guantanamo, as its legal black hole. This is an extreme position -- and one that allows the President to do exactly what the Supreme Court said was unconstitutional in the Guantanamo cases. We are very disappointed that this administration has failed to live up to its promise of living up to this country's great legal tradition and fidelity to the rule of law, but we are hopeful that the Court of Appeals will remedy this injustice.”

She said the Justice Department’s position is one where “Bumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.

In the second case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court's decision in 2008 affirming the continued detention of a former cook for Taliban forces. He is Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan. Held at the U.S. naval base in Cuba since 2002, al Bihani carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan, but claims he never fired a shot in battle.

The court unanimously rejected Al Bihani's appeal. But two judges appointed by President George W. Bush went even further. Bush appointees Janice Rogers Brown and Brett Kavanaugh said detainees are not entitled to the same rights given criminal defendants who challenge their convictions.

In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.

As a result, federal judges have reached often contradictory conclusions about the detainees' legal rights and whether the government has the power to continue holding them.

This decision can be appealed either to the full appeals court or to the
Supreme Court. If it is not challenged successfully, it could apply to every other detainee case filed in Washington and provide the government with a compelling basis to challenge any court order to release a detainee.

Legal authorities said the decision will make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so robustly supports the government's authority, legal experts said.

The two Bush appointees rejected attempts by human rights groups and detainees' lawyers to have the courts apply principles from "the laws of war" to detention decisions.

This group of international laws, treaties and long-standing legal practices would probably curtail the government’s ability to detain people such as Bihani indefinitely, his defenders believe.

A large majority of the prisoners still held at Guantanamo Bay is from Yemen. In the aftermath of the political backlash triggered by the disclosure that the would-be bomber of the Detroit-bound airliner was given his explosive device by Al Qaeda in Yemen, the Obama administration decided to suspend release of any Yemeni detainees, many of whom have been cleared for release.

How September 10th!

By William Fisher

Civil liberties advocates and organizations representing Muslims believe the Obama administration’s decision to require extra scrutiny for travelers to the U.S. from 14 predominantly Islamic countries will lead to practices that are discriminatory and ineffective.

The Obama administration announced Sunday it will subject the
citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.

Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.

In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers -- not just from the 14 countries -- will also face random and threat-based enhanced screening.

But the agency denied that the new regulations amount to profiling. "TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background," spokesman Kristin Lee said.

“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”

But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”

“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration's stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.

Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.

According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”

"We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion," said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.

"Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats."

The organization said the government's plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the "shoe bomber," Richard Reid, who was a British citizen, as were four of the London subway bombers.

"Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn't reflect this reality will only divert resources by having government agents target innocent people," said German. "Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism."

Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, "Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -- that's profiling."

He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”

“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”

CAIR’s government liaison, Alejandro Beutel, said, "The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin," said "Call it whatever you want, but this is religious and ethnic profiling at its worst."

A number of legal experts were also critical of the new measures.
Georgetown University law professor David Cole said, "The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don't fit the profile."

Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.

In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I'm going to argue that this case illustrates the danger and the foolishness of profiling…I think it's not only problematic from a civil rights' standpoint, but frankly, I think it winds up not being terribly effective.”

He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”

A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.

Tuesday, January 05, 2010

Emma Lazarus Redux

By William Fisher

The United States is a country that has been built on immigration and by immigrants. For more than two centuries, people have come from all over the world to be Americans. And for all that time we have taken pride in our ability to integrate people from many backgrounds into one – E Pluribus Unum! Why, we even have a statue in the harbor of our largest city to welcome those from foreign lands: Give me your tired, your poor, Your huddled masses, et cetera.

So it should be no surprise that we wonder how our immigration authorities ever managed to get their work so totally screwed up.

Undoubtedly, illegal immigration has a lot to do with this situation. We can’t seem to control our borders, a thing that every nation needs to be able to do. And, especially in times of economic distress, we tend to get maddest at those who have taken advantage of this deficiency of ours.

But a lot of us were mad long before our economy got into distress. Some people just don’t like the idea of foreigners flouting our laws. Others believe that these illegals are taking jobs away from Americans. Still others complain that they are driving down the wages of American workers. Then there are those who simply don’t like folks who are “not like us” –who they claim are raising the violent crime rate in our country.

Still, wouldn’t you think that after a couple of hundred years of immigration, we’d have figured out how to run this system?

Well, there’s lots of evidence that we haven’t. There are some 12-14 million undocumented workers and their families in the U.S. today. We keep telling one another we can’t possibly deport all of them. Yet our immigration authorities keep running raids on the places where these undocumented folks are working, and rounding up hundreds to be deported. Now, we’ve even got a program that gives local law enforcement officers the authority to arrest and detain suspected illegals.

These people are often whisked away from their families to detention centers, which can be federal facilities built for illegal immigrants, state prisons, or county, town or private jails. These facilities are frequently far from the places where their apprehension took place, so the detainees often have no access to the records they’ll need to plead their cases for staying in the U.S. They also have no access to lawyers, to telephones, or to their families. Due process is in pretty short supply in the immigration maze.

Immigration authorities detain more than 300,000 men, women and children every year in a network of some 400 private facilities and state and local jails. Unlike other federal incarceration systems, there are no binding regulations that govern the conditions in those facilities.

And, those conditions can only be described as subhuman – dangerously filthy, and without the most rudimentary sanitary facilities or basic medical care.

Those occupying these hell-holes include thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing. They are being labeled “terrorists” and their applications for protection are being denied or delayed because of overly broad “terrorism” provisions in the Immigration and Nationality Act (INA). More than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.

The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.

Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.

While immigration officials are promising to clean up this disgraceful act – and Congress is slowly getting involved to make that happen – we learn of yet another Kafkasque regulation.

Each year, the US government sends officials overseas to interview thousands of people displaced by persecution and conflict, classifies a select number as refugees in need of resettlement, and brings them to the United States. After a year in the United States, every resettled refugee is required to apply for lawful permanent resident (LPR) status, more familiarly known as a "green card," in a procedure known as "adjustment."

The government does not formally notify them of the upcoming deadline and the refugees' limited English, ignorance about the requirement, confusion over the legal process, and lack of resources often keeps them from filing on time.

It will be hard to believe, but some of these refugees are actually jailed and held indefinitely for missing the paperwork deadline. And their detentions continue to be selective and arbitrary, and in violation of international human rights law.

We know about this newest Emma Lazarus nightmare because Human Rights Watch just published a report about it -- "Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status.”

The 40-page report examines the detention of refugees for failure to file for lawful permanent resident status, even though US immigration officials already put them through a thorough vetting process at the time they were recognized as refugees.

The report recommends changing US law to close the legal loophole that allows for detaining these refugees and to give them lawful permanent residence when the US grants them asylum or admits them to the country under its overseas refugee resettlement program.

"For the US government to bring persecuted refugees to this country and then turn around a year later and jail them because they didn't file immigration forms is ironic to the point of absurdity," says Bill Frelick, refugee policy director at Human Rights Watch. "This mindlessly bureaucratic policy unnecessarily traumatizes refugees and their families, not to mention wasting the government's resources."

The report is based on interviews with 17 refugees in immigration detention in Arizona and Pennsylvania and with legal aid providers in Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of who worked with refugees detained for failure to adjust their status.

Sebastian Nyembo (a pseudonym) was only eight when he was resettled from the Democratic Republic of Congo. He did not know about the requirement. "I was eight years old," Sebastian told Human Rights Watch. "My father passed away. When I got older I realized I needed it, but I didn't know it was mandatory."

When Human Rights Watch visited him in August 2009 at the remote Eloy Detention Center in the Arizona desert, he had not spoken to his two children, ages 7 and 4, since his arrival four months earlier. His son has sickle cell anemia, which requires expensive medical care, but Sebastian had been unable to provide for the children since his detention. "My wife, she been going through a lot," he said. "My house went for foreclosure."

Although the law is not applied uniformly, ICE interprets section 209(a) of the Immigration and Nationality Act as mandating detention of all refugees who have been in the US for 12 months who have not filed to adjust their status, until they have filed for adjustment and their applications have been adjudicated. In Arizona, where Human Rights Watch conducted most of its interviews, refugees were sometimes detained for several months in remote, desert locations, and in some cases for longer than a year, without being formally charged with any legal offense.

The majority of resettled refugees interviewed by Human Rights Watch said that before their detention, they were unaware that they were required to file for adjustment of status. Most believed that filing for adjustment of status was optional, and were unaware of any potential legal repercussions for failure to file after one year.

"These people are no danger to their communities, nor are they a flight risk," Frelick said. "But detaining them separates them from spouses and children, interrupts their education and costs them their jobs - not to mention the new trauma for those with post-traumatic stress disorder."

The US is a state party to the International Covenant on Civil and Political Rights, which states that no one shall be subject to arbitrary arrest or detention (Article 9). This prohibition means that a person may be deprived of liberty, even if provided for under domestic law, only to meet a legitimate aim, and only in cases where it is necessary and proportionate, such as when alternatives to detention are not possible. An arrest or detention is arbitrary if not carried out in accordance with domestic law, or if the law is itself arbitrary or extremely broadly worded.

Failure to adjust immigration status is not a chargeable criminal or civil offense. So unlike sentences of a specific length imposed for criminal convictions, the length of detention for resettled refugees is indefinite. When people are detained for this reason, they are held until they complete their application and the application has been fully adjudicated. This may take 4 to 6 months, and in some cases longer than a year.

"Jailing Refugees" urges the US Congress to change the law that currently permits ICE to detain these refugees and calls on Congress to grant legal permanent residence to all recognized refugees in the US, given that their cases have already been considered in depth as part of the asylum or refugee resettlement process. In the meantime, it also calls on ICE to stop detaining these refugees and to permit them to file for adjustment from their own homes and communities.

The experience of being detained often without understanding why or how to get out of detention can cause great anxiety and depression. Sebastian Nyembo told Human Rights Watch "I'm a good person, a good hearted person, but I'm gonna give up. I don't have no fight in me."

Some might argue that the current law should remain unchanged because it gives US immigration authorities an opportunity to examine refugees after one year to see if they should be removed because of criminal behavior. "Jailing Refugees’" central recommendation that refugees be admitted with lawful permanent resident status would still allow US immigration authorities to put criminals into removal proceedings. "Under existing law, US immigration authorities have ample grounds for initiating removal proceedings against lawful permanent residents convicted of crimes and for detaining them during those proceedings," said Frelick.

Now, none of this will come as news to the Department of Homeland Security, the super-bureaucracy that runs our immigration machinery, and its Immigration and Customs Enforcement (ICE) unit. The Secretary of DHS, Janet Napolitano, has already taken a lot of heat for the incredibly poor performance of ICE. She has outlined her plans to improve and reform conditions for thousands of refugees currently being held in detention.

And there have been a few other changes as well. For example, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.

This may be a notch or two better than the silence we heard under President Bush, who tended who have a “heck of a job” attitude toward Michael Chertoff, DHS secretary during the second Bush term.

But one could be forgiven for being just a tad cynical about real reform any time soon. Because even the Obama Administration knows that undocumented immigrants don’t vote.

This article originally appeared in