Wednesday, March 31, 2010


By William Fisher

More abuses in the US immigration detention system came to light last week when it was revealed that two mentally disabled men continue to be held in detention while facing possible deportation for criminal convictions despite having already served their time and two other immigrants have been held for more than two years while pursuing legal challenges to deportation.

The two mentally disabled immigrants, both Mexicans, are facing deportation for criminal assault convictions for which they have already served their time. According to separate lawsuits filed in federal court, they continue to be held in detention facilities in violation of their constitutional rights.

Their lawyers said Jose Franco-Gonzalez, 29, of Costa Mesa and Guillermo Gomez-Sanchez, 48, of San Bernardino, “have languished in detention facilities for years because authorities deemed them mentally incompetent.” “Their deportation cases were closed in 2005 and 2006 and the men have since been forgotten, shuttled through a network of jails, psychiatric hospitals and detention centers.”

"This represents a massive failure on the part of our immigration system to create procedures to deal with individuals with disabilities," said attorney Talia Inlender of Public Counsel, one of a coalition of legal advocates, including the American Civil Liberties Union of Southern California, which filed the habeas corpus petitions last week.

ICE attorneys have argued that the law requires the men to continue to be detained because of their crimes.

The men's attorneys said their clients have served their time and should be released. Gomez is a legal resident, and Franco's family -- his parents are legal residents -- has a pending petition that would allow him to apply for a green card.

The men still could face deportation. But their families said the men would be unable to care for themselves in Mexico because of their mental conditions.

Franco, who has moderate mental retardation, was convicted and served a year in jail on an assault with a deadly weapon charge for throwing a rock during a fight between rival gangs, his attorneys said. He reportedly doesn't know his birth date or how to tell time, and has an IQ of about 55.

Gomez, who has paranoid schizophrenia, served one year of a two-year sentence for a 2004 assault conviction stemming from a scuffle over tomatoes he picked without permission. He has previous convictions, including for battery against a police officer, which his attorneys have attributed to his mental illness.

In another immigration development, Immigration and Customs and Enforcement (ICE) in Harrisburg, Pennsylvania, released two immigrants who had been subjected to prolonged immigration detention while pursuing legal challenges to deportation after a court ruled that their continued detention without bond hearings was unlawful. Rather than proceed with bond hearings for the detainees.

Released were Elliot Grenade, a lawful permanent resident from Trinidad and Tobago, and Alexander Alli, a lawful permanent resident from Ghana, without requiring them to post any bail – Alli under minimal reporting requirements and Grenade under electronic monitoring. The two men are represented by the American Civil Liberties Union, the ACLU of Pennsylvania and Pepper Hamilton LLP.

The two men had been detained for over two and a half years and a year and a half, respectively.

The men’s lawyer, Farrin Anello of the American Civil Liberties Union (ACLU), told IPS, “Once the court ruled that our clients were entitled to bond hearings at which the immigration agency would bear the burden of justifying their continued detention, the agency agreed to release them on conditions of supervision. It is a relief that the agency finally acknowledged that their detention was unnecessary, but by denying them any bond hearing prior to the court’s ruling, the agency subjected our clients to years of separation from their families, all at taxpayers’ expense.”

She added, “"Under the mandatory detention law, the government has regularly argued that individuals with minor criminal convictions can be detained for long periods of time while fighting the government’s attempts to deport them, without ever having a bond hearing at which a court considers whether their detention is necessary. But in this case, the court ruled that because of due process concerns, the law does not allow for lengthy detention without such a hearing.”

The ACLU filed a class action lawsuit on May 27, 2009, charging that the government is violating the law by incarcerating people for prolonged periods of time, sometimes for years, while they fight their immigration cases, without providing them with the most basic element of due process — a custody hearing to determine if their prolonged detention is justified.

Attorney Anello told IPS that the ACLU plans to appeal the court's August 2009 decision denying permission to bring this case as a class action “in light of the thousands of immigrants who are detained without hearings.”

In yet another development, the Washington Post has reported that immigration authorities have set quotas for agents that incentivize them to deport non-criminal undocumented non-citizens.

A spokesman for the advocacy group Reform Immigration FOR America (RIFA) said, “This directly contradicts stated White House and administration goals of focusing enforcement efforts primarily on those who have dangerous or violent criminal backgrounds.”

On February 22, James Chaparro, Head of ICE Detention and Removal Operations issued a memo to field agents indicating that the agency had decided to implement a quota system for field agents to boost the number of deportations "with a 'surge' in efforts to catch illegal immigrants" whose only violation was related to immigration or visa applications or reentering the United States after being deported."

RIFA said this was at odds with statements from the President and Secretary [of Homeland Security, Janet] Napolitano whose purported enforcement and security goals are to focus deportation efforts on dangerous or violent criminals. To explain the contradiction, an agency spokesman indicated that Chaparro's memo was "inconsistent" with the administration's point of view and inconsistent with Secretary Napolitano. Adding to the confusion, Chapparro later issued a 'clarifying' memo that did not rescind or abandon the quota system he referenced.

Saturday, March 27, 2010

Practical Immigration Solutions

By William Fisher

As the administration of President Barack Obama and Congressional lawmakers prepare to tackle comprehensive immigration reform, a leading immigration advocate is charging that Government inaction has resulted in “a range of enforcement-only initiatives that have cost the country billions of dollars, while doing little to impede the flow of unauthorized immigrants.”

According to a new report by the Immigration Policy Center of the American Immigration Council, “the current immigration system’s structural failures, and the inadequate or misguided responses to these failures, have led to the largest unauthorized population” in American history.

“Nearly everyone agrees that our immigration system is badly broken and in urgent need of reform. Under the existing system people are dying at the border, immigrants are living and working in abject conditions, families trying to reunite legally are separated for many years, employers are unable to hire the workers that they need, U.S. workers suffer from the unlevel playing field shared with exploited immigrant workers, and law-abiding U.S. employers are in unfair competition with unscrupulous employers who increase profits by hiring cheap and vulnerable labor,” the report says, adding, “Meanwhile, the United States continues to spend billions of dollars on enforcing these broken laws.”

“Focusing on the Solutions: The Key Principles of Comprehensive Immigration Reform” summarizes the key elements that need to be included in a successful legislative package.

Commenting on recent proposals made by Congressional lawmakers, IPC Director Mary Giovagnoli told IPS that statements from Senators Charles Schumer of New York and Lindsey Graham of South Carolina “mark renewed commitment to providing immigration reform that will bolster the economy and provide for America's future.”

She added, "We encourage the President and Senators Schumer and Graham to go beyond words and produce legislation that will finally fix our broken immigration system once and for all." An outline of the lawmakers’ ideas appeared in The Washington Post.
The IPC report identifies ten areas it says lawmakers need to concentrate on.

First, insufficient numbers of visas are made available to bring in either high-skilled or less-skilled workers at the levels needed to meet the changing needs of the U.S. economy and labor market.

Second, family members who are eligible for visas must wait up to 20 years to be reunited with family living in the United States.

Third, wage and workplace violations by unscrupulous employers who exploit immigrant workers are undercutting honest businesses and harming all workers.

Fourth, inadequate government infrastructure is delaying the integration of immigrants who want to become U.S. citizens.

Fifth, Legalization. “Most Americans understand that we cannot deport 10-1 million people or hope that they will choose to ‘self-deport.’ It is clear that current enforcement-only responses have not been effective and are not a realistic solution to the current crisis. The underlying flaws of the legal immigration system must be addressed in order to create a fair, humane, and practical immigration system for the 21st century -- a system that is responsive to the needs of our economy and encourages legal behavior.”

“Requiring the 10-11 million unauthorized immigrants residing in the U.S. to register with the government and meet eligibility criteria in order to gain legal status is a key element of comprehensive immigration reform,” the report says.

Sixth, the report says it’s likely that Congress “will transform the way employers verify the work authorization of their workers. Since this will affect immigrants and citizens alike, and because an error in the system can cost a worker his job and paycheck, it is important to make the system effective.”

Seventh, comprehensive reform of our broken immigration system will “necessarily transform the role of immigration enforcement.” Legalization of unauthorized immigrants already in the United States “will result in a significantly smaller unauthorized population, and the creation of flexible legal channels for those immigrants we need will ensure that future flows of illegal immigration are minimal.” But the report says there will continue to be a need to enforce the nation’s immigration laws.

Eighth, the report notes that family-oriented immigration has always been a pillar of the U.S. immigration system. “However, many close family members of U.S. citizens and legal permanent residents are currently waiting years, if not decades, to reunite with their loved ones.”

Ninth, the report says, comprehensive immigration reform must address the future needs of the U.S. economy and create a well-functioning and flexible system of permanent and temporary visas for both high-skilled and low-skilled workers. Policymakers must recognize that if we create a legal immigration system that functions well, there will be less pressure on immigrants come to the U.S. illegally and for employers to hire unauthorized workers.”

Tenth, the report says immigrant integration will benefit everyone because “it enables immigrants to realize their full potential, contribute more to the U.S. economy, and develop deeper community ties.” It notes that the U.S. “has no national strategy for facilitating integration and insufficient infrastructure to facilitate a smooth transition from immigrant to citizen.”

Right Wing Blocks Legal Aid

By William Fisher

For the past 14 years, the non-profit company set up by Congress to provide legal services for the poor, has been forced to short-change the needy because of severe Government restrictions on how it can use its funding.

The Legal Services Corporation (LSC) has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help with both programs that receive government funds and even those that use non-federal funds raised by legal services programs.

Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch. (OMB stands for the Government’s powerful Office of Management and Budget.)

Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group told IPS, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of Citizens of America."

The Legal Services Corporation (LSC) is a private, non-profit corporation established by the United States Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. The LSC was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process.

OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.”

According to state bar associations, court-established Access to Justice Commissions, and state legal services planning bodies, the funding restrictions have had disastrous consequences for poor people who need legal services.

These organizations have found that the restrictions placed on organizations receiving federal funding present "major barriers to justice for low-income persons . . ." (Arkansas); prevent representation "in cases ranging from an illegal tenant lockout to consumer fraud, to civil rights enforcement." (New Hampshire); have a "negative impact," "in actual practice (causing great inefficiencies in the way applicants for service must be processed and referred) and principle (denial of essential and fundamental legal assistance to some who need it)." (New Jersey); are "major obstacles . . . for achieving ‘equal access' for disfavored clients and politically unpopular cases." (Texas); and limit programs' "use of the most appropriate legal strategies to effectively represent low income clients with high priority legal needs."(Washington).

The LSC Act specifically prohibits organizations receiving LSC funding from using LSC or private funds to engage in: political activities; most criminal cases; "challenging criminal convictions against officers of the court or law enforcement officers; organizing activities, including training for – or encouraging of – political or labor activities"; litigation to receive "non-therapeutic abortions" or "compel the provision of abortion services over religious or moral objections"; and "proceedings involving desegregation of public schools, military service or assisted suicide."

Additional funding restrictions have been added over the years. In 1996, Congress expanded the LSC restrictions to apply to funds from all sources, including federal, state, local, and private funds, with the exception of tribal funds. It also prohibited additional activities, including: class actions; all abortion-related litigation; representing prisoners; representing people who are being evicted from public housing for allegedly distributing illegal drugs; redistricting activities; lobbying governmental bodies, with limited exceptions; and representing non-U.S. citizens, with limited exceptions.

Current LSC rules also require legal aid programs that wish to lobby, spend
private dollars on class action lawsuits, comment on proposed regulations, or
represent certain types of clients, such as prisoners or certain immigrants, to
set up physically separate offices with separate staff.

Legislative efforts to overturn the LSC funding restrictions have increased in
the past year. In March 2009, Sen. Tom Harkin, an Iowa Democrat, introduced the Civil Access to Justice Act of 2009 that would end the restrictions on the use of non-federal funds by LSC grantees, except those related to abortion litigation and a few other activities. "Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend non-federal funds to ensure access to the courts," said Harkin.

Public sentiment also appears to be on the side of providing legal access to
those in need. OMB Watch charges that, “Since the Reagan administration, conservatives have sounded a drumbeat of opposition directed at the LSC. The Reagan budgets annually proposed elimination of legal services, only to have those services protected by Congress. Over the years, LSC funding has limped along. However, with the recent economic downturn, there has been a noticeable uptick in support for legal services. According to the Associated Press, two-thirds of those polled in 2009 on behalf of the American Bar Association said they favor federal funding for people who need legal assistance. Notably, Congress increased funding for the LSC in the last appropriations cycle.”

For 2007, LSC had a budget of some $350 million. This year it has asked Congress to provide $516.5 million, with more than 95 percent of the budget request going to fund 136 nonprofit legal aid programs across the nation that provide civil legal assistance to the nation's poor.

Friday, March 26, 2010

Post-Racial What?

By William Fisher

Just in case you've bought into the "post-racial" era of "Yes, We Can," consider the plight of Zachari Klawonn.

Klawonn is an Army Specialist, the son of an American father and a Moroccan mother. He is 20 years old.

As told by The Washington Post, Klawonn was sitting in his barrack room when he heard a THUD. THUD. THUD. Someone was mule-kicking the door of his room, leaving marks that weeks later -- long after Army investigators had come and gone -- would still be visible.

Tthe pounding had stopped by the time Klawonn got to the door. What he found was a note: "F--- YOU RAGHEAD BURN IN HELL" written with a black marker.

But Klawonn had been called worse in the military: Sand monkey. Carpet jockey. Raghead. Zachari bin Laden. Nidal Klawonn. "But the fact that someone had tracked him down in the dead of night to deliver this specific message sent a chill through his body," The Post wrote.

Klawonn had been told by Army recruiters in his home town of Bradenton, Fla.,just how desperate was the Army's need for Muslim soldiers like him to help win the wars in Iraq and Afghanistan.

But he was ordered not to fast and pray. His Koran was torn up. Other soldiers jeered and threw water bottles at him. His platoon sergeant warned him to hide his faith to avoid getting a "beating" by fellow troops. But nothing changed, despite the formal complaints he lodged.

Then came the November shootings at Fort Hood and the arrest of a Muslim soldier he'd never met: Maj. Nidal M. Hasan, who is charged with killing 13 people and injuring more than 30 in a massacre that stunned the nation. And The Post says that from that point on, things only got worse.

Klawonn believed that Hasan's rampage had only added to his visibility.

Now rewind to 1950. The Korean War was being fought. Like millions of others, I was drafted and - because I has been a musician and a newspaper reporter in civilian life - I was assigned to a Military Police unit - the 800th Military Police Company stationed at First Army Headquarters on Governor's Island in scenic New York harbor. For reasons that remain mysteries to this day, almost everyone drafted into that unit had a college degree. And many were Jews.

But first came basic training, which took us to Camp Kilmer in New Jersey. During World War II, Kilmer had played a major role in shipping GIs out to fight in Europe and the Pacific - and I and my fellow conscripts lived in terror of finding ourselves on a slow boat to Korea.

There was, however, an item at Kilmer that was even scarier than the idea of shipping out. That item came in the form of our company's drill sergeant, let's call him Sgt. Duffy. Sgt. Duffy was a compact-looking Regular Army soldier, with the distinctive red nose of a guy who drinks too much.

But his nose wasn't the problem; his mouth was.

"OK, listen up you college Jewboys. Christ-killers. You Kikes can't be good soldiers, but it's my job to try, so I will."

And try he did. He subjected us to weeks of scurrilous religious and ethnic hate speech, even including homespun epithets from the South, which none of us Northeasterners had ever heard.

He called us "Ni**er-lovers," though the major civil rights battles had not yet been fought. He insulted our families by describing us simultaneously as "the money changers who own all the banks" and "the communists who will take over the world and take our money away."

He woke us up at three in the morning to send us out in the pouring rain carrying a full backpack and our M-1 rifles, to make us run around and around what seemed an endless parade ground track until we collapsed from exhaustion, and many of us did.

To Duffy's credit, sort of, he stayed out in the rain with his running charges until breakfast time, all the while raging at Jewboys, Kollege-Kikes, N***er-Lovers and Fa**ots.

Nor was this a case of subjecting new recruits to "tough love" to harden us for battle. This was a case of modifying the Army Basic Training Manual to accommodate a level of bigotry that would normally be ascribed to our military enemies.

And Duffy wasn't the only bigot. We learned from recruits in other units that they were hearing much of the same. It was almost like it was Standard Operating Procedure.

But it wasn't, of course. It just happened to be the kind of behavior about which the Army was comfortable turning a blind eye. Just as it did when the soldiers it shipped off to Korea just happened to be Africa-Americans.

Well, I was about to write that I was certain the Army has changed exponentially since those Dark Ages of the Korean 1950s. But what about Spec. Klawonn?

Is Islamophobia worse or better than anti-Semitism or homophobia or "Ni***r-Loving"? The point is largely rhetorical; they're all equally reprehensible.

But we need to acknowledge that this kind of stuff has been around in American society forever and, despite (or perhaps because of) our election of an African-American as our president, it shows few signs of going away any time soon. On the contrary, all the data suggests that hate-speech - and actions - are increasing.

Now, if you'd like to try to find solace in delusional thinking, you can pretend that the weekend's ugly racism, homophobia and generalized hate exhibited by the Tea Partiers -- egged on by Republican Congresspersons and staffers cheering from a second-floor balcony was not typical of how Americans think and feel.

You can pretend that this kind of garbage ended with the Civil Rights Act of 1964. But, sorry to say, that law simply served to amp up the resistance of the White Supremacists. And it took many years for us to turn down their volume, though the craziness that sparked the volume is still with us.

So maybe it's not "typical" anymore, but it's there, still very much with us.

For me, the saddest part of this current saga is that the Republican Congressional leadership has been, shall we say, muted in its condemnation of the Tea Party protestors. GOP leaders have instead blamed Democrats for using the attacks fto gain political advantage -- to ginn up outrage and raise campaign contributions.

Even though most of the Tea Party folks self-identify as Republicans, this should have been a time when Democratic and Republican leaders decided to rise above partisanship and present a truly united front unequivocally condemning hate speech, incitement and violence.

Alas, to date only the Democrats seem to be able to muster the courage to call out the Tea Partiers. We can only hope that a belated coming together will happen now that all the health care legislation has become law.

But I'm not holding my breath.

Wednesday, March 24, 2010

Lindsey Graham’s Grand Bargain

By William Fisher

The prominent scholar who believes that Khalid Sheikh Mohammed (KSM), self-styled mastermind of the 9/11 terror attacks, should receive no trial is nonetheless advising Senator Lindsey Graham on a proposal to the White House to create “an overarching detainee framework” including a new approach to habeas corpus petitions and indefinite detention of “too dangerous to free” detainees without trial.

Benjamin Wittes, a senior fellow and research director in public law at the
Brookings Institution was the co-author last week of an oped published in the Washington Post proposing that a trial for KSM would be a waste of time and money. Wittes and his co-author, Jack Goldsmith, a former George W. Bush assistant attorney general who now teaches law at Harvard, called the trial of KSM “dispensable” and proffered that “the politically draining fight about civilian vs. military trials is not worth the costs.”

The Washington Post is reporting that Sen. Graham, a conservative Republican from South Carolina, has submitted draft legislation to the White House. The proposal was reportedly triggered by Graham’s efforts to reach a deal with the Obama Administration: Scrap the announced trial of KSM in the civilian justice system in exchange for the senator using his influence among congressional Republicans to drop their opposition to the closing of the U.S. navy prison at Guantanamo Bay, Cuba.

During his first week in office, President Obama announced that Guantanamo would be closed by January 1, 2010, but this deadline was missed. One of the main reasons was the unwillingness of countries – including the U.S. – to accept detainees even though they were no longer deemed to be a danger to national, but could not be returned to their own countries for fear of their torture and abuse. There are still some 210 prisoners held at the Caribbean base.

Graham favors the establishment of a “national security court” to try detainees, but this idea is opposed by Pres. Obama. Another Graham idea reportedly involves creating standard procedures for addressing detainees' petitions for habeas corpus. This would give the government the responsibility of justifying continued detention – decisions now made by individual Federal judges.

Graham has been criticized by both Conservatives and Liberals for attempting to strike a deal with Obama. But, facing intense criticism from Congress, the White House is reportedly eager to demonstrate its commitment to a bipartisan solution.

The American Civil Liberties Union believes that “detaining individuals indefinitely without charging them with a crime or providing them a meaningful opportunity to challenge their detention is un-American and violates our commitment to due process and the rule of law.” In a statement, it said, “Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad.”

Since 9/11, there have been over 300 successfully completed terrorism-related trials in federal courts. Military Commissions have completed only three.

However, Senator Graham is urging the Administration to use Military Commissions to try Guantanamo detainees, thus pushing Attorney General Eric Holder to reverse his recent decision to try KSM and five other “high profile” suspects in Federal Court.

But human rights groups are pushing back against that idea. The American Civil Liberties Union (ACLU) believes that Military Commissions, despite some improvements through legislation, remain unworkable and should be shut down for good.

The organization’s position is being echoed by other civil libertarians. Daphne Eviatar, senior counsel with Human Rights First, told IPS it would be a mistake to try these defendants in a “new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”

And David Frakt, a professor at the Western State University College of Law and a lieutenant colonel in the U.S. Air Force Reserve JAG Corps, told IPS, “Military commissions are supposed to be a forum to try offences under the law of war, but several non-war crimes that don't belong in military commissions are also authorized to be tried in military commissions, including material support of terrorism, conspiracy, and terrorism. The vast majority of detainees to be charged so far have been charged with these non-war crimes, which more properly belong in federal court.”

He added, “The rules of evidence allowing coerced evidence to be admitted have been improved so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from them is still admissible.”

Frakt is widely known for his defense of former Guantanamo detainee Mohammed Jawad, an alleged "unlawful enemy combatant" who previously faced charges in the U.S. military commissions for events alleged to have taken place when he was a minor in December 2002. Jawad was exonerated and returned home to Afghanistan in August 2009.

Monday, March 22, 2010

Wittes, Goldsmith, and KSM: “Absurd,” “Cynical.”

By William Fisher

It’s been a few days now since Benjamin Wittes and Jack Goldsmith wrote their op-ed in the Washington Post calling the trial of Khalid Sheikh Mohammed “dispensable” and proffering that “the politically draining fight about civilian vs..... military trials is not worth the costs.”

Their proposal: “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for some time to come, continue to do the heavy lifting in incapacitating terrorists.”

Benjamin Wittes is a senior fellow and research director in public law at the
Brookings Institution. Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.

After all the kerfuffle and back-and-forthing concerning where KSM would be tried and by whom, the Wittes-Goldsmith approach seemed sufficiently outside the box to at least warrant some further exploration.

So I contacted some of the brainiest civil rights lawyers I know to ask their opinions. Here’s what some of them told me:

David Frakt is a Lt. Col. in the Air Force Reserve JAG Corps and a professor of law at Western State University College of Law. He was formerly a military defense counsel who challenged the legitimacy of Military Tribunals and won the release of a GITMO detainee and his repatriation to Afghanistan.

He told me, “Wittes and Goldsmith's solution would satisfy no one. A trial would serve a number of important functions other than simply providing a lawful basis for incarceration if convicted and sentenced. The American people deserve to know what happened on 9/11 and who was behind it. The families deserve an opportunity to see justice served. The accused deserve an opportunity to have their guilt proven, or establish their innocence.”

He added, “Nearly everyone agrees that this was one of the most monstrous single crimes ever committed. Whether one views KSM and his alleged co-conspirators as war criminals or simply mass murderers, there needs to be a criminal trial in some forum.”

Frakt’s point of view is echoed by most of those we contacted. For example:

Chip Pitts, president of the Bill of Rights Defense Committee, said, “Blinded by the fog of the so-called “war on terror,” it is not surprising that a misguided and complicit former Bush legal official and a non-lawyer apologist for the war paradigm would be so ready to walk away from the last vestiges of the rule of law, but a moment’s reflection by thoughtful disinterested parties should confirm that continuing the illegal, immoral, and counterproductive indefinite detention of accused al Qaeda members simply risks more lives by further diminishing the nation’s reputation and handing the terrorists yet another propaganda victory.”

He continued: “The absurd and cynical invocation by these individuals of the abominable mess they helped to create as justification for Obama to make an even bigger mess of things might suit their interests, but it only further dilutes the possibilities of our country restoring justice and effective national security. As the father of international law, Hugo Grotius, wrote in 1625, ‘No one readily allies himself with those in whom he believes that there is only a slight regard for law, for the right, and for good faith.’ These authors should be ashamed and silent: no person of reason wants any more of their ‘advice.’ ”

“The suggestion that the Obama administration shouldn’t even bother to try Khalid Sheikh Mohammed, the self-described mastermind of the September 11 terrorist attacks, and his alleged co-conspirators is appalling. It disregards the experience of the victims of that attack, who deserve to see justice done. It also disregards the national and historical importance of publicly trying and convicting the men who, if proven guilty, orchestrated the largest mass murder and most lethal terrorist attack ever committed on U.S. soil.”

And Daphne Eviatar, senior counsel with Human Rights First, told me: “Wittes and Goldsmith acknowledge that it would be a terrible idea for the administration to try these defendants in a new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer, then, is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”

Eviatar damns the WAPO piece with very faint praise, saying, “Still, Wittes and Goldsmith’s op-ed provides an important service: It highlights the shaky legal and moral basis of indefinite detention of any suspected terrorists charged with the killing of civilians on U.S. soil.”

Marjorie Cohn, president of the National Lawyers Guild, reminded me that “no trial” equates with “indefinite detention.”

She said, “While proposing an apparently pragmatic solution, Wittes and Goldsmith advocate an illegitimate process of dispensing with trials for these men. Holding people indefinitely without charge violates the
International Covenant on Civil and Rights, a treaty the United States
has ratified which makes it part of US law under the Supremacy Clause
of the Constitution. The Geneva Convention's procedure of holding
prisoners of war until the end of hostilities does not apply here, as
we are not involved in a "war"; terrorism is a tactic, not an enemy.”

She also reminds us that the presumption of innocence and the right to a trial “is enshrined in our Constitution; let's not dispense with them so cavalierly.”

Given the huge and as yet unresolved controversy generated by the question of where and by whom KSM should be tried, one can see how Goldsmith and Wittes might find it convenient to skip this quaint nicety altogether.

But take that step and we won’t have to wait long for the Al Qaeda propaganda machine to ramp up to full bore. Hear it now: "Those Americans, who think they’re so special because they follow the rule of law, are perfectly willing to throw their cherished Bill of Rights overboard whenever its convenient.”

Plus, we Americans would lose the considerable value of having KSM’s own testimony to confirm to the world that he is far too dangerous to ever be allowed back in the more or less civilized world.

Let us pray that Eric Holder and his boss find the cajones to hold their ground.

Families Appeal GITMO Deaths

By William Fisher

The families of two prisoners who died at the U.S. Navy Base at Guantánamo Bay, Cuba, are asking a Federal court to reconsider its ruling dismissing their lawsuit, which seeks to hold federal officials and the U.S. government accountable for their sons’ torture, arbitrary detention, and ultimate deaths.

According to their lawyers, the Center for Constitutional Rights (CCR), the families’ request is based on newly discovered evidence from four soldiers who describe a cover-up by the authorities and say they were ordered not to speak out. The soldiers’ accounts were reported in Harper’s Magazine in January.

The Pentagon maintains that the two men, along with a third prisoner, committed suicide in their cells in 2006. But their lawyers say the soldiers’ first-hand accounts “raise serious questions about the actual cause and circumstances of the deaths.” They charge that “their accounts strongly suggest that the men died as the result of torture at a ‘black site’ – a secret prison – within Guantánamo.

In a statement directed to U.S. President Barack Obama and American judicial authorities, Talal Al-Zahrani, father of one of the men who died that night, said, “Mr. President, the killing of my son in the hands of his guards and under the supervision of the administration of the detention center is a serious and gruesome crime. It is against all human values and norms, and whoever covers up this gruesome crime or obstructs the criminal and judicial investigations is a co-conspirator with those who have committed the crime itself.”

“It is not unusual in any society to find crime and criminals, but it is a catastrophe when a democratic society that raises the banner of defending human rights stays silent in the face of such a crime. Mr. President, neither you nor your government stand to gain anything by covering up this crime, unless you believe in the achievements of former President Bush and his Secretary of Defense Rumsfeld, and wish to share in their legacy,” Al-Zahrani said.

He added, “I would like to tell you that the reason hatred against America is spreading all over the world is because you are disregarding people’s feelings and showing contempt and disrespect for the lives of others. Too often you let criminals -- from powerful politicians and decision makers to low-level perpetrators -- get away with serious crimes. All these people are doing is damaging your reputation and the values you stand for.”

The district court granted a request by the government and 24 federal officials, including former Secretary of Defense Donald Rumsfeld, to dismiss the families’ case. The CCR says the court therefore “accepted the defendants’ argument that national security factors should bar the constitutional claims on behalf of the deceased, and that the alleged torture of the men, even if ‘seriously criminal,’ was within the officials’ ‘scope of employment,’ thus barring claims asserted under the Alien Tort Statute (ATS).”

The court also dismissed claims under the Federal Tort Claims Act (FTCA) for breaches of the officials’ basic duty of care toward the deceased and for the emotional distress suffered by the families, ruling that Guantanamo is a “foreign country” for the purposes of the act and thus outside the scope of its protection. The dismissal effectively left the families and their sons with no remedy for the violations they asserted again U.S. officials.

The ATS gives district courts jurisdiction of any civil action by an alien, committed in violation of the law of nations or a treaty of the United States. It allows U.S. courts to hear human rights cases brought by foreign citizens for conduct committed outside the U.S. The FTCA permits private parties to sue the United States in a federal court for acts committed by persons acting on behalf of the U.S.

The families’ request for the court to reconsider its dismissal of their claims is based on the accounts of four soldiers stationed at the base the night the men died. Human rights lawyer Scott Horton reported in Harper’s Magazine in January that the soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, “strongly suggest that the men were taken to a secret ‘black site’ at Guantánamo nicknamed ‘Camp No’ that night, and died at that site or from events that transpired there.”

The CCR said the undisclosed facility is thought to have been used by the Central Intelligence Agency (CIA) or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up they say was initiated by the authorities within hours of the men’s deaths. They say they were ordered by their superiors not to speak out.

Said CCR attorney Pardiss Kebriaei, “It took courage for these soldiers to come forward with information that the government had every intention of keeping secret, and the details that are emerging are disturbing to say the least. The families of these men should not be barred at the courthouse door without any further inquiry.”

A report prepared by the Seton Hall University School of Law concluded that the military’s investigation files “reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.”

Six prisoners have died at the Guantanamo facility since it was opened in 2002. In June 2009 Muhammad Ahmad Abdallah Salih, a 31-year-old Yemeni man detained since 2002became the sixth person to die at the base.

CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, the two men who died at Guantánamo in 2006, along with a third detainee, Mani Al-Utaybi of Saudi Arabia.

At the time of their deaths, Al-Zahrani and Al-Salami had been detained for more than four years without charge. Al-Zahrani was 17 at the time of his arrest.
CCR has organized and coordinated more than 500 pro bono lawyers across the country to represent Guantanamo detainees, former detainees, and their families.

GITMO: Obama’s Crockery

By William Fisher

In 2008, the Supreme Court, in a landmark decision, ruled that prisoners at Guantanamo Bay had to right to challenge the basis for their detention. That decision – a major rebuke to the Administration of then-President George W. Bush – parted the seas for a flood of habeas corpus petitions.

And there is no sign that the flood will recede any time soon.

Since the court’s ruling – the case was known as Boumediene v. Bush –
42 habeas petitions have been decided in Federal court in Washington DC. Of these, 33 have been granted and nine have been denied. Most of these petitions were, in fact, filed before the Boumediene ruling. Lawyers representing GITMO detainees say hundreds of additional petitions are in the pipeline.

The High Court’s decision in Boumediene granted habeas rights to GITMO detainees, and also ruled the Military Commissions Act (MCA) of 2006 unconstitutional. But it provided no help to the judges who would be hearing these cases, and trying to thread their way between national security and tainted evidence

For example, the government’s case against one detainee seemed a sure thing. DOJ lawyers said he had traveled to Afghanistan, trained at an al Qaeda camp, stayed at a guesthouse reportedly run by terrorists, and fought at Tora Bora. Evidence against him came from his own words and from a fellow detainee.

The judge was not impressed. The court ruled that the government’s “informer” could not be relied on and the prisoner’s own testimony was suspect because it had been obtained through coercion.

This case is fairly typical. Federal judges – appointed by both Republican and Democratic Administrations – have been giving DOJ prosecutors some heavy migraines. And the headaches are likely to continue.

Numerous legal observers have remarked that this was one way the policies of the George W. Bush administration “shot us in the foot.” Prisoners who were subjected to Bush-era “enhanced interrogation techniques” were unlikely to be losers in federal courts.

There are currently about 200 detainees at Guantanamo Bay. Of these, about 90 are believed to be from Yemen, posing yet another problem: The administration has suspended repatriations to Yemen because of the activities of Al Qaeda in the Arabian Peninsula. The so-called Christmas-Day-Bomber, Umar Farouk Abdulmutallab, claims to have been trained in Yemen by this organization.

The DOJ says approximately 110 can be released – though their destinations remain unclear and/or are being negotiated with other governments. The Attorney General has said he wants to prosecute some 35 men in federal courts or before Military Commissions. That would leave about 50 the government considers too dangerous to be set free but where evidence is too dicey to stand up in court.

What happens when these 50 prisoners file their habeas corpus petitions, demanding to know the legal basis for their continued detention? The chances are the judges will order at least some of them to be set free.

But that immediately sets up another huge speed bump. Even if the government is prepared to comply with a court order to set a prisoner free, where is the prisoner to go?

In October 2008, a federal judge faced precisely that dilemma. He ordered the government to release into the United States a group of 17 Chinese Muslims held at Guantanamo.

At the U.S. District Court in Washington, Judge Ricardo M. Urbina said whatever authority the government possessed to detain the Uighurs – whom the government conceded were not enemy combatants but could not be returned to China for fear of potential persecution – had “ceased.”

Urbina said his order was based on the fact that the Uighurs’ detention had become effectively indefinite, that the government conceded they would not return to the battlefield, and that the government had provided no alternative grounds for detention.

He noted that the government’s “extensive diplomatic efforts” had yet to find a country willing to accept the Uighurs, and rejected the government’s argument that the Executive branched possessed authority to “wind-up” their detention.

The government appealed the ruling and the appeals court agreed with the government, whereupon the Uighurs’ lawyers asked the Supreme Court to review the case. The Justice Department claimed that since most of the Uighurs had since been transferred to other countries, the case was now moot; SCOTUS agreed and the court ordered the D.C. Circuit Court to take another look at the case -- testing federal judges’ powers to order Guantanamo Bay detainees to be released from custody.

But many of the approximately 50 “too dangerous to free” prisoners are likely to petition for habeas corpus and to present the courts with a similar dilemma: Trying to determine the reliability of the government’s evidence.

Was the evidence obtained through torture? And is the government producing a witness whose testimony is reliable?

Given the ubiquitous application of enhanced interrogation techniques – the very same that Vice President Cheney is so proud of – the likelihood is that coercion will be a factor in a large majority of situations coming before a judge.

And with all the built-in incentives GITMO provides to rat-out one’s fellow prisoners, it would not be surprising if the line of “jailhouse snitches” keeps getting longer.

Overlaying this panoply of legal headaches are two more:

First, if there are ever any trials of any GITMO prisoners, it is now unclear whether any will be held in Article 3 courts in the U.S. So cacophonous is the NIMBY outcry, particularly from Congresspersons, that it’s a 50-50 bet that the Obama administration will ultimately have to back off.

But civil libertarians aren’t likely to go with this decision quietly. David Frakt, a former Air Force defense lawyer for a GITMO prisoner, says relying solely on Military Commissions would “remove the option from the Executive Branch of trying suspected terrorists in Federal court, the most effective and most appropriate forum in which to try terrorist crimes. This is an unprecedented interference with the ability of the Executive branch to enforce the laws in the way it sees fit. Furthermore, many of the crimes alleged to have been committed by detainees at Guantanamo are not crimes under the law of war and do not belong in military commissions. If military commissions are the only option, this may preclude some detainees from being tried at all.”

Second, the whole of the human rights advocacy community, a good chunk of the legal professoriat, and most members of Obama’s leftwing base, believe that military commissions should be scrapped because they represent a second-class justice system. They will do whatever they can to sabotage what they refer to as “these kangaroo courts.” They are equally apoplectic on the issue of indefinite detention. That solution, they say, makes us just like the enemy.

Some observers say the President can invoke his right under the Laws of War to indefinitely hold as “enemy combatants” people who are captured on the battlefield.

But many others take issue with that conclusion. They say the people who are being held at Guantanamo are not properly labeled “enemy combatants” because most were not actually members of a fighting force with which we are at war, and most were not captured on a “battlefield.”

Second, as Gabor Rona, International Legal Director of Human Rights First, told Truthout:

“The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the U.S. does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.”

On the other hand, Sens. John McCain and Joe Lieberman have just introduced legislation mandating that Military Commissions be used exclusively to try GITMO deteinees. Their legislation would also authorize “detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognised by the Supreme Court."
In other words, indefinite detention.

This is, perhaps, a hornet’s nest of problems that President Obama and his legal team may not have fully anticipated when, during the first week of his Presidency, he signed his executive order promising to close Guantanamo.

But the Pottery Barn is all his now and the rule is in effect.

This article was originally published inj

Egypt’s Blogger Wars

By William Fisher

Egypt’s war on bloggers suffered a major hit this week.

Caving to pressure from the United Nations and international human rights groups, a military court released a 20-year-old civilian university student accused of blogging false information about the army and insulting officers involved in recruitment at a military academy.

The trial of Ahmed Mustafa, an engineering student, would have marked the first time a civilian blogger had been tried in a military court under Egypt’s Emergency Law.

Two weeks earlier -- four days after Mustafa was arrested in his hometown of Kafr El Sheikh in the Nile Delta -- he stood before the court accused of writing a single blog post more than a year earlier. The post told the story of a student allegedly forced to resign from a military academy in order to leave room for another applicant amid accusations of nepotism.

The Court, which convened behind closed doors, completed its investigation in less than two weeks. It denied Mostafa’s lawyers access to the prosecution’s “evidence.”

But Mostafa’s unexpected release from detention came after a scathing report by a United Nations Special Rapporteur and international condemnation by human rights groups including Amnesty International and Human Rights Watch.

The UN Rapporteur, Martin Scheinin, excoriated Egypt for applying its Emergency Law in situations where there is no link to terrorist activities, such as the frequent arbitrary detention of political activists and bloggers and the repeated use of military courts and state security courts in politically motivated cases.

He also emphasized that when combined with a pending counter-terrorism law, Article 179 of the Egyptian Constitution would create a permanent legal state of emergency.

His report to the UN Human Rights Council also said that administrative detention orders repealed by the judiciary in Egypt are often “renewed immediately upon a person’s release or, in the worst case, just ignored through unacknowledged detention until a new order of official administrative detention is obtained.”

That was the case with Mostafa. His release was conditional – he agreed to apologize and remove the March 2009 posting from his blog, which is called “Matha Assabaka ya Watan” (What happened to you, oh nation?). This means that his case could be reinstated at any time in the future.

Egyptian military court rulings cannot be appealed or overturned.

Gamal Eid, director of the Arabic Network for Human Rights Information, said it was the first time a military court was convened for a blogger, although bloggers have been sentenced to prison by other courts.

"This should not have gone to a military court," he said, adding such trials are typically "unfair and speedy."

According to Moataz El Fegiery, Executive Director of the Cairo Institute for Human Rights Studies, “The Rapporteur confirmed what human rights defenders have been warning about for several years: The proposed counter-terrorism law in Egypt is an attempt by the government to normalize the state of emergency and undermine the constitutional protection of fundamental rights.”

That law, an amendment to Article 179 of the Egyptian constitution, grants the police absolute powers in the area of arrests, allows the police to monitor private conversations, and would allow the Egyptian president to deny those accused of terrorism access to the ordinary judiciary and to refer them to extraordinary military courts.

El Fegiery told Truthout that Mostafa’s prosecution “was a serious precedent for intimidation.” He added, “We are also still concerned about other bloggers who are at risk.”

Human Rights Watch, the US-based rights group, called on the government to drop the charges. "The government should not be prosecuting Mustafa at all, much less before a military court, with no possibility of appeal," said Joe Stork, HRW’s deputy Middle East director.

Paris-based media rights group Reporters Without Borders said Mostafa’s trial was "designed to intimidate anyone who dares to criticize the army."

Amnesty International welcomed his release. The organization considered Mostafa to be a prisoner of conscience.

The head of the Egyptian Association for Freedom of Thought and Expression (AFTE), Emad Mubarak, said that Egyptian authorities have been ramping up their pressure on political bloggers, especially after a few of them reported some of the ruling regime's human rights violations.

Egyptian emergency law allows military courts, which are presided over by an officer, to try civilians. The armed forces are extremely sensitive to criticism.

Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat.

Under the law, which has been continuously extended every three years since 1981, police powers are expanded, constitutional rights suspended and censorship legalized. The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.

“Emergency law is used regularly by the Egyptian government to harass and imprison journalists and human rights activists attempting to bring to public attention corruption and favoritism, as has occurred with the recent arrest and trial in military court of blogger Ahmed Mustafa,” said Daniel Calingaert, Deputy Director of Programs at Freedom House.

But Mustafa is far from the first blogger to be harassed by security police or put on trial for something he wrote. The roll of persecuted Egyptian bloggers has been growing longer every year.

Egyptian police started to crack down on Internet users in early 2001. By the end of 2003, improper Internet use was being used as a justification for the increased prosecution of individuals from several different political groups along with Islamists, journalists, homosexuals, and political activists.

A new specialized police unit was founded under the general department of Information and Documentation. Officially called the "Department to Combat Crimes of Computers and Internet," the unit is now known by its simpler title -- "Internet Police"

The first public appearance of the unit came in March 2004 in the pages of the semi-governmental newspaper Al-Ahram. It was mentioned in a news story about a computer programmer who was arrested for creating a web site defaming a famous official and his family. But the unit was well known to its victims long before its name was published.

One of those early victims was Shohdy Naguib Sorour, the son of the late poet Naguib Sorour. In June 2002, Al Sayda Zainab Misdemeanors Court sentenced him to a one-year prison term and a fine. Shohdy was condemned for the possession and dissemination of the political colloquial poem "Kosomiat" written by his late father in the early1970s. The court stated that the poem, which had been posted by Shohdy on his Web site, “transgressed public morality.”

The case was decided on the basis of Article 178 of the penal code, which criminalizes the possession of “materials violating public morality with purposes of distribution, trafficking, or breaching morality.”

During the police investigation of the case, it was found that not only was Shohdy's computer not connected to the Internet but also that its hard disk did not contain the poem he was accused of posting. The only piece of evidence found by the Vice Squad -- and the only evidence that it seems was required for the successful prosecution of the case -- was a hard copy of the poem in Shohdy's possession.

Perhaps the police didn’t realize that Shohdy was Naguib Sorour's son. As the author's son it was reasonable that he would have his father's poem, much like thousands of the poet's readers and fans possess this same poem by a poet renowned for his criticisms of the political situation.

Internet-based prosecutions – and threats of prosecutions -- grew amid an environment of manufactured hysteria.

Rafat Radwan, engineer and chairman of the Information Center in the Cabinet, said, “Net cafes must be monitored. Any activity has good and bad elements. There should be several restrictions such as a central control on material sent through the Internet that could be against Egyptian principles. The Vice Squad in the Ministry of the Interior should play a role in monitoring these net cafes.”

And, referring to a blogger who was sentenced to a four-year jail sentence for calling President Hosni Mubarak a “symbol of dictatorship,” and Al-Azhar University a “university of terror,” prosecutor Mohammed Dawud warned, “If we let people like him off without punishment, a wildfire will blaze up that consumes everything in its path.” He added, ”Exactly that is what civil rights activists dream of, many of whom pin their hopes on a grass-roots digital democratization initiated by the country’s bloggers.”

Harassment of bloggers has increased year by year since then. For example:

In 2007, blogger Kareem Amer, an Amnesty International prisoner of conscience, was sentenced to four years’ imprisonment for criticizing President Hosni Mubarak and Egypt’s al-Azhar religious authorities on his blog.

Hani Nazeer, another prisoner of conscience, has been held in administrative detention since October 2008 for posting on his blog the cover of a book deemed insulting to Muslims.

In October 2008, blogger Mustafa Mahmoud was summoned to State Security in Fayoum. There he met Abd Al Latif Al Hady Badran, State Security inspector, who threatened to throw him in jail along with his family, because of his blogging.

Blogger Abd Al Rahman Fares was kidnapped in April 2009, in front of Fayoum cultural palace in a van, prior to a strike. He was detained and charged with inciting to strike, “using the prevailing democratic atmosphere to overthrow the regime,” and distributing flyers and other publications for the 6th April and Kefaya political movements. He was released by State Security days later, without charge.

Bloggers Mohamed Khairy and Khalifa Ebeid were arrested on in October 2008 because they participated in a "break the siege of Gaza" demonstration and also because of critical writings on their blogs. They were released after 15 days.

Marawan Mazen, a state security inspector, broke into blogger Ahmed Mohsen’s home in April 2009, and “turned every thing upside down.” Ahmed was not at home -- he was at work as a radiologist. He was accused of “using the prevailing democratic atmosphere to overthrow the regime and hindering the law and constitution.”

Mohsen was put in solitary confinement, served one meal a day, subjected to timed usage of restroom, and denied visits from his lawyer and family. He started a hunger strike.

He was held in one prison for 15 days and then transferred to another to end his strike. He was detained an additional 30 days before his unexplained release.

In November 2009, blogger Wael Abbas was sentenced to six months in jail for cutting an Internet cable, a verdict that was considered "ridiculous" by Reporters Without Borders.

In Alexandria, blogger Abdel Karim Nabil Suleiman, a 21-year-old law student at al-Azhar University, was taken from his home and detained by State Security agents. His family believes Karim’s political opinions and writings for several outlets, including Copts United, were behind the arrest.

Copts are a Christian minority, making up about ten per cent of Egypt’s population. Human rights observers say they are subjected to many forms of discrimination.

Al-Azhar University is the center of Arabic literature and Sunni Islamic learning in the world and the world's second oldest surviving degree granting university. Among many other disciplines, Al-Azhar trains Egyptian government-appointed preachers in proselytization.

Egypt-watchers say the country’s war on bloggers is simply a newer phase of the Mubarak regime’s relentless crackdown on freedom of expression. After promising reforms, the 81-year-old authoritarian continues to regularly put journalists in jail.

These days, the government increasingly uses the “war on terrorism” to justify its political repression. At the same time, Egypt has successfully promoted its image as one of the “moderate Arab states.”

But human rights advocates say there is nothing moderate about current-day Egypt. The country has a well-documented history of torture and death in detention and a full panoply of other human rights abuses.

Nonetheless, Mubarak has managed to sell himself to the West – particularly to the U.S. – as a dependable partner. For many years after he signed a treaty normalizing the country’s relationship with Israel, Egypt was the recipient of billions of dollars in economic and military aid, second only to Israel.

Marina Ottaway of the Carnegie Endowment for International Peace has eloquently summed up the current situation in Egypt. Commenting on the “travesty of democracy” likely to play out in the country’s upcoming elections, she writes:

“Politically, Egypt has become a one-dimensional society where there is no true alternative to the present ruling establishment.”

“In the face of the unrelenting closure of the political space in Egypt and the outright repression exercised by the security apparatus not only against the Muslim Brotherhood but also against liberal opponents who attract some support or even call attention to themselves, the United States and the international community more broadly have been largely silent.”

“After a rhetorically strong beginning, the Bush administration dropped efforts at democracy promotion in Egypt and in the wider Arab world following the 2005 parliamentary election in which the Muslim Brotherhood won twenty percent of the seats. The Obama administration has kept curiously silent about democracy -- other than for passing references in President Obama’s speech to the Muslim world in Cairo in June 2009 and more recently in Secretary of State Hillary Clinton’s speech in Qatar in February 2010.”

“In light of the growing stifling of political activity in Egypt, the Obama administration cannot continue to remain silent, even if it can do little to alter the situation in practice. The normal tools of the democracy promotion kit -- including pressure on the regime, assistance to make the electoral process more honest, assistance to domestic election monitors, and the deployment of international observers -- are unlikely to make a difference. Even assistance to political parties will not help when, just a few months before the elections, the liberal and leftist parties are moribund and the Muslim Brotherhood is deeply divided, with many of its top leaders in jail and even some of the strongest advocates of political participation calling for a participation moratorium.”

“Yet by not speaking out, the Obama administration is sending a message that the United States accepts the travesty of democracy this election cycle represents.”

This article was originallypublished in

Wednesday, March 17, 2010

Rising Deaths in Childbirth

By William Fisher

Despite the U.S. spending more on maternal health than any other country in the world, deaths in childbirth among American women are on the rise and already surpass the morbidity rates in most developed countries.

That’s the principal conclusion reached in a new study by Amnesty International and data from the Organization for Cooperation and Development (OECD) and the UN’s World Health Organization (WHO).

The Amnesty study, entitled “Deadly Delivery,” reports that deaths from pregnancy and childbirth in the United States have doubled in the past 20 years -- from 6.6 per 100,000 live births in 1987 to 13.3 deaths per 100,000 live births in 2006.

That would mean that, of the four million women who give birth each year, two to three women die each day in the U.S. from complications related to pregnancy.

While better reporting may account for some of the increase, the study speculates that it’s more likely that the figures may actually understate the problem because there are no federal requirements to report maternal deaths.

The OECD is an organization that brings together the governments of countries committed to democracy and the market economy from around the world. It provides a setting where governments compare policy experiences, seek answers to common problems, identify good practice and coordinate domestic and international policies. Its members consist mostly of the developed nations of Europe.

Other findings from the study:

American women are now at greater risk of dying from pregnancy-related causes than women in 40 other countries -- five times greater than Greek women, for example, and four times greater than German women.

And another 1.7 million American women -- a third of all women who become pregnant in the United States -- experience some kind of pregnancy-related complication that adversely affects their health. Severe pregnancy-related complications (known as “near misses” because the woman comes close to death) have increased 25 percent since 1998, the study reports.

"No American woman should die from childbirth in 2009, we can definitely do a lot better," says Dr Michael Lu, Associate Professor of Obstetrics at the University of California, Los Angeles (UCLA).

Why are women in America more likely to die during childbirth than their peers in other developed nations?

The answer is complex and a number of factors may be at play. The study says about half of American women are entering pregnancy overweight. And a spokesperson for the U.S. Centers for Disease Control (CDC) says the latest maternal mortality data suggests one in four to one in five women who die have heart disease or diseased blood vessels. Other factors include financial and physical barriers to accessing care, including a lack of physicians in rural areas, and an overuse of risky interventions, such as inducing labor and delivering via cesarean section.

According to the Centers for Disease Control and Prevention (CDC), about half of all maternal deaths in the U.S. are preventable. Pregnant women and new mothers are dying because of “systemic failures” in our current health system, the Amnesty report says.

The alarming data on maternal mortality are even more shocking for African-American women. They are three to four times more likely to die during childbirth than white American women. And even wealthy black American women have a higher rate of mortality during childbirth than wealthy white women.

One factor may be high blood pressure; African-American women tend to have higher blood pressure than the rest of the population. But poverty and racism may also be factors.

JoAnne Fischer, Executive Director of the Maternity Care Coalition, which works with low income women to help them stay healthy during their pregnancies, says: "We do know that there is extraordinary stress involved in racism and in being poor. "And we know that sometimes this creates hypertension. "Hypertension, obesity and diabetes are all linked, so we have to make sure women start their pregnancies healthy."

The increase in maternal deaths is viewed against a history of steady decreases during the 20th century. Mortality rates reached very high levels in maternity institutions in the 1800s, sometimes climbing to 40 percent of birthgiving women. At the beginning of the 1900s, maternal death rates were around 1 in 100 for live births. The number in 2005 in the United States was 11 in 100,000, a decline by two orders of magnitude. However, that figure has begun to rise in recent years, having nearly tripled over the past decade in California.

The decline in maternal deaths has been due largely to improved asepsis, fluid management and blood transfusion, and better prenatal care.

Recommendations for reducing maternal mortality include access to health care and emergency obstetric care, funding and intrapartum care. Moreover, political will and support play a major role and without it reforms to reduce maternal mortality cannot be made.

The risk of dying as a result of pregnancy or childbirth differs significantly by economic status from about 1 in 26 in Africa, to 1 in 7,300 in developed countries. Even within countries there is a marked difference in access to skilled birth attendants, a key intervention to improve maternal health, by a magnitude of six times between the lowest wealth quintile and the upper quintile. The proportion of women whose family planning desires are satisfied is distinctly linked to wealth, with the poorest lagging behind the richest in each region.

On a global basis, one woman dies every minute during childbirth, yet almost all of these deaths are preventable. In 2001, the UN set a goal of slashing maternal mortality by 75% by 2015, but it is still very far from meeting that target.

Tuesday, March 16, 2010

Interviewing David Frakt

David Frakt is a professor at the Western State University College of Law and a Lt. Col. in the U.S. Air Force Reserve JAG Corps. He is widely known
for his defense of former Guantanamo detainee Mohammed Jawad, an alleged “unlawful enemy combatant” who previously faced charges in the U.S. military commissions for events alleged to have taken place when he was a minor in December 2002. In July 2009, Professor Frakt became the first defense counsel to win the dismissal of military commission charges that had been referred to trial and won Mr. Jawad’s release through a successful petition for a writ of habeas corpus. Mr. Jawad returned home to Afghanistan in August 2009.

Professor Frakt was also lead defense counsel in one of just two military commission trials held during the Bush Administration. A recognized expert on the law of war and military commissions, Professor Frakt also recently testified before Congress about proposed reforms to the military commission and has been a guest lecturer at Harvard Law School, Duke Law School, NYU Law School, Loyola Law School, and The Wharton School of Business, among other institutions. He frequently appears at conferences and participates in debates with other leading experts on legal issues surrounding detention, interrogation and counterterrorism.

Professor Frakt has written extensively about military commissions and other issues related to Guantanamo detainees, and is frequently asked to comment on current events surrounding detainees and terrorism in the popular media.

Professor Frakt is also a contributor to the Torture Report, an online publication of the ACLU National Security Project and has appeared repeatedly on MSNBC, CNN and on National Public Radio. He is featured in the recent book, The Guantanamo Lawyers: Inside a Prison Outside the Law.

Here, Prof. Frakt talks with IPS’s William Fisher.

IPS. Since the court’s ruling in Boumediene, 44 habeas corpus petitions have been decided in Federal court in Washington DC. Of these, 33 have been granted and 11 have been denied. Most of these petitions were, in fact, filed well before the Boumediene ruling. Lawyers representing GITMO detainees say dozens of additional petitions are in the pipeline. It may be reasonable to assume that outcomes in future habeas hearings will not be materially different from past decisions. Even where the judges have granted the petitions, in several cases the detainees have not been released because of the government’s inability to find other countries willing to accept former detainees. On what basis can the government continue to hold these people indefinitely or until a country is found to accept them?

DF. There is no lawful basis to continue to incarcerate these individuals. If no other country is willing to take them, then they should be released into the United States. The problem is the political unwillingness to allow any former detainees into the U.S., even those determined to be completely innocent and wrongfully held. Our unwillingness to accept any detainees for resettlement in the U.S. is also the biggest stumbling block to convincing our allies to accept released detainees. Why should they solve our problems when we are unwilling to be part of the solution?

IPS. Why is there a category of prisoners deemed “too dangerous to free” and “too dangerous to try ?

DF: Neither the Bush Administration nor the Obama Administration has ever specified who is in this category or why they were placed there, although the Obama Administration announced that they believe as many as 50 individuals are in this category. One possibility is that the primary evidence that these individuals are dangerous was derived through coercive interrogations that would likely be inadmissible in court. Given the inherent reliability of coerced interrogations, it is very troubling that we would consider holding someone forever primarily on that basis.

IPS. Why would some detainees be tried before Military Commissions and others in federal court before a civilian jury? What determines which venue is to be used?

DF: The Attorney General has produced a list of factors to be considered in making this determination but has not indicated which factors cut which way. There does not appear to be any principled basis for making this distinction. It looks as if those cases that the US Attorneys want and think they can prove in federal court are going to federal court, and other cases are going to military commissions, making it appear that military commissions are a second-class justice system. As the controversy over the location of the alleged 9/11 co-conspirators’ trial indicates, political factors also appear to be a significant consideration.

IPS. Could anything further be done to improve military commissions to the point where they would be acceptable venues for trials? What are the principal shortcomings of the Commissions?

DF: The military commissions are supposed to be a forum to try offenses under the law of war, but several non-war crimes that don’t belong in military commissions are also authorized to be tried in military commissions, including material support to terrorism, conspiracy, and terrorism.

The vast majority of detainees to be charged so far have been charged with these non-war crimes, which more properly belong in federal court. Military commissions also have no age limit, allowing juveniles like Omar Khadr to be tried as war criminals for acts done when they were 15 years old.

The rules of evidence allowing coerced evidence to be admitted have been significantly improved, so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from coerced confessions is still admissible.

Another major shortcoming is the lack of any preliminary hearing or grand jury proceeding to screen out meritless charges, such as exists in federal court and in courts-martial. The rules of the military commission also unfairly exclude qualified defense lawyers who are not U.S. citizens from serving as defense counsel for detainees. Another problem is that there are no precedents to guide military commissions. They are a completely untested system and the rules are basically made up as the cases move along. This creates too many opportunities for challenges and appeals that cause interminable delays.

The victims of 9/11 and other terrorist attacks have waited long enough for justice, as have the detainees, most of whom have been incarcerated without trial for seven or eight years now. Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad. Although military commissions procedures have been substantially improved, they are still flawed and still lack legitimacy in the international community.

IPS: What is your reaction to Liz Cheney's attack on Justice Department attorneys who represented or advocated on behalf of detainees while they were in private practice during the prior administration? Her advocacy group, “Keep America Safe” even went so far as to call these lawyers, "the al Qaeda seven."

DF: This unwarranted attack by the fringe-right is particularly repugnant. The idea that we should question the patriotism and values of attorneys who volunteered to represent detainees has been widely repudiated by most mainstream conservatives, including a large group of prominent conservative lawyers. This smear campaign by Liz Cheney, sustained in the popular media by Andrew McCarthy of the National Review and Marc Thiessen of the Washington Post is based on several false premises.

First, they are implying that an attorney who represents an unpopular individual or an unpopular cause shares the viewpoint of that individual or cause. This is nonsense.

Second, by constantly referring to the detainees as “terrorist detainees” or “Al Qaeda detainees” they are conveniently overlooking the fact that the vast majority of Guantanamo detainees have proven to be innocent of any ties to terrorism. That’s why the Bush Administration let two-thirds of the detainees go and had cleared dozens more for release even before President Obama assumed office.

Third, they overlook the fact that the detainee litigation was predominantly a fight over three issues: whether detainees are entitled to be treated humanely; whether detainees are entitled to be informed of the basis for their detention and given a meaningful opportunity to challenge the basis for their detention in a real court; and whether detainees charged with crimes are entitled to a fair trial that conforms with Constitutional requirements and the international law of war. Thus, the detainee litigation was about American values, not about terrorist values.

Finally, these attacks conveniently ignore the fact that the U.S. Supreme Court sided with the lawyers representing the detainees every single time. These volunteer lawyers deserve great credit for helping to restore the rule of law in this country and for undoing some of the damage wrought by the Bush Administration.

Wednesday, March 10, 2010

EGYPT: Same Old, Same Old, But Worse

By William Fisher

Despite diplomatic maneuvering designed to block any review of its human rights record, a United Nations special rapporteur has told the UN Human Rights Council that proposed changes in Egypt’s constitution “would create a permanent legal state of emergency.”

The report of Martin Scheinin, the UN Special Rapporteur Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, said Egypt’s Emergency Law is often applied in situations where there is no link to terrorist activities, such as the frequent arbitrary detention of political activists and bloggers and the repeated use of military courts and state security courts in politically motivated cases.

The Special Rapporteur also emphasized that, when combined with the pending counter-terrorism law, Article 179 of the Egyptian Constitution as amended in March 2007 would create a permanent legal state of emergency.

That law grants the police absolute powers in the area of arrests, allows the police to monitor private conversations, and would allow the Egyptian president to deny those accused of terrorism access to the ordinary judiciary and to refer them to extraordinary military courts.

The UN report is the first issued by the main human rights body of the United Nations that deals exclusively with the human rights situation in Egypt. Representatives from the Egyptian Initiative for Personal Rights and the Cairo Institute for Human Rights Studies attended the session in Geneva as observers and delivered oral interventions in which they supported the report’s recommendations and urged the government to implement them immediately.

In his report, based on a mission to Egypt in April 2009, Scheinin
highlighted that administrative detention orders repealed by the judiciary in
Egypt are often “renewed immediately upon a person’s release or, in the worst case, just ignored through unacknowledged detention until a new order of official administrative detention is obtained.”

That was the case in the contemporaneous trial of Ahmed Mustafa, a 20-year-old civilian engineering student who was arrested and, for the first time, brought to trial in a military court charged with blogging false information about the army and insulting officers involved in recruitment at a military academy. He was accused of writing a single blog post more than a year earlier. The post told the story of a student allegedly forced to resign from a military academy in order to leave room for another applicant amid accusations of nepotism.

Apparently bowing to pressure from the United Nations and international human rights groups, and after several delays, the military court unexpectedly released Mustafa, who promised to apologize and take his web posting down.

Moataz El Fegiery, the Executive Director of the Cairo Institute for Human Rights Studies (CIHRS), told IPS he believes pressure from Egyptian and international human rights groups, plus the UN report, played a major role in the court’s decision to release Mustafa.

The Egyptian Government’s harassment and prosecution of bloggers has become more intense in recent years. A number of bloggers have been convicted and sentenced to prison. Many others are regularly harassed and intimidated by police before being released.

Earlier, as part of its review before the UN Human Rights Council, Egypt stood before governments from around the world and either rejected or failed to commit to important human rights reforms.

Key rights recommendations that were rejected include: to "allow independent national and international election monitoring in upcoming elections;" "end the state of emergency and abstain from legislation that introduces measures of the Emergency Law into the Constitution;" "release bloggers and human rights defenders detained under emergency laws" and "ensure that NGO activities and activities of human rights defenders not be inhibited or their ability to raise funds be impeded."

But Egypt did accept proposals from Pakistan and Sudan to "speed up" the adoption of Emergency Laws within its Constitution in the form of "anti-terrorism laws."

"While the government of Egypt accepted a number of important recommendations, it did not commit to some of the most important ones," said El Fegiery. "Nonetheless, the fact that Egypt committed to some reform in front of the world is a small victory for human rights defenders in Egypt,." he added.

Important recommendations accepted by Egypt include: ensuring that the definition of torture in Egyptian law conforms with the Convention Against Torture and that the government will "increase efforts" to combat torture; the repeal of laws that allow for imprisonment of journalists for exercising their right to freedom of expression; to continue to promote the political participation of women including in the judiciary; to not use Emergency laws against journalists and bloggers; to ensure the full observance of the Declaration on Human Rights Defenders; and to enable human rights organizations to monitor elections.

According to CIHRS, Egypt had earlier attempted to ensure that no meaningful review of its human rights record took place by getting other states, mostly from the Arab region, to take the floor and offer only praise during its review. The attempt failed in large part because the Coalition of Egyptian NGOs lobbied states both in Cairo and in Geneva to take the floor during the review and give substantial recommendations that could be monitored and followed up on.

El Fegiery said, “Today the Special Rapporteur confirmed what human rights defenders have been warning about for several years: the proposed counter-terrorism law in Egypt is an attempt by the government to normalize the state of emergency and undermine the constitutional protection of fundamental rights.”

He recalled that during the presentation of the report by the Special Rapporteur, Egypt denied all of its substantial observations by claiming that the Emergency Law does not suspend or limit ordinary laws or judicial oversight despite clear legal clauses that do precisely this.

”Egyptian officials did everything they could to limit the scope of the Special Rapporteur’s mission: they barred him from visiting prisons and interviewing detainees and refused to let him observe any terrorism trials or meet with families of victims and detainees” said Hossam Bahgat, Executive Director of the Egyptian Initiative for Personal Rights. “But the facts are clear, and the mission report provides the most damning assessment of systemic human rights abuses committed in the name of security since 1981.”

The Cairo Institute for Human Rights Studies and the Egyptian Initiative for
Personal Rights urged Egypt to lift the State of Emergency, abolish the recently added Article 179 of the Constitution on combating terrorism, and to ensure that any existing and future anti-terrorism law complies with all international human rights standards.

The head of the Egyptian Association for Freedom of Thought and Expression (AFTE), Emad Mubarak, said that Egyptian authorities have been ramping up their pressure on political bloggers, especially after a few of them reported some of the ruling regime's human rights violations.

Egyptian emergency law allows military courts, which are presided over by an officer, to try civilians. The armed forces are extremely sensitive to criticism.

Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat.

Under the law, which has been continuously extended every three years since 1981, police powers are expanded, constitutional rights suspended and censorship legalized. The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.

Tuesday, March 09, 2010

Happy Birthday, DHS -- Immigration Agencies Fall Short

By William Fisher

As the Department of Homeland Security celebrates its seventh anniversary, its immigration agencies are struggling to “create more humane ways to enforce broken laws” – but trying to enforce their way out of a broken immigration system is ultimately “a losing proposition.”

That was the conclusion reached in a new report on immigration that faulted the sprawling agency for “lack of transparency.”

The report, titled “DHS Progress Report: The Challenge of Reform,” was released by the Immigration Policy Center (IPC), the research and policy arm of the American Immigration Council. It attempts to measure DHS actions over the past year against recommendations made to the Obama Transition Team’s immigration-policy group.

The “Transition Blueprint,” produced by a wide range of immigration advocates, focused on “administrative improvements that would instill fairness, create efficiencies, and build support for comprehensive immigration reform in several key areas: due process, enforcement, detention, family immigration, naturalization, immigrant integration, and asylum.”

DHS’s seventh anniversary also corresponds to the due date set by Secretary Janet Napolitano for completion of a sweeping internal review of DHS. In her first full week on the job, Secretary Napolitano issued a directive instructing every agency to “thoroughly assess its current programs, resources, and efficiencies to identify areas in need of reform.”

The results of these reviews have not been made public, the report notes, “so it is impossible to determine whether a rigorous self-assessment took place, but the Department’s actions over the following year suggest that tinkering with the immigration enforcement regime rather than genuinely reforming it was the top priority of the Administration.”

A co-author of the report, Mary Giovagnoli, director of the IPC, told Truthout she believes DHS Secretary Napolitano and the people she has brought in to staff the immigration agencies “are professionals who are dedicated to improvement, but are trapped in a world of competing entrenched interests and laws that are popular with Congress but which don’t actually work.”

She praised officials at DHS’s immigration agencies for “their willingness to stay engaged” with the immigration advocacy community. However, she added, “By the end of the Bush Administration that community’s level of trust and confidence was so low that we always knew it was going to take time to rebuild.”

She recalled that after DHS’s founding in 2002, “It was so large that it took three or four years for the agency’s management to understand exactly what they had in the immigration field.”

Noting that 2009 “was largely about promises and aspirations,” she said, “Whether DHS can make good on these promises remains to be seen.”

However, she added, “That process has started.”

Ms. Giovagnoli served as an attorney with the Departments of Justice and Homeland Security -- serving first as a trial attorney and associate general counsel with the Immigration and Naturalization Service (INS), and, following the creation of the Department of Homeland Security, as an associate chief counsel for United States Citizenship and Immigration Services (USCIS). She was also awarded a Congressional Fellowship from USCIS to serve for a year in Senator Edward M. Kennedy’s office, where she worked on comprehensive immigration reform and refugee issues.

Her co-author, Royce Bernstein Murray, worked as Associate Counsel on the Refugee and Asylum Law Division in the USCIS Office of the Chief Counsel for five years during which time she advised a range of humanitarian immigration programs. Previously, she served as an Asylum Officer/Presidential Management Fellow for the INS Office of International Affairs.

The IPC report examines the DHS immigration apparatus – Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).

The examination reveals that DHS is struggling with the challenges of reform—both administrative and legislative—and “finds itself attempting to create more humane ways to enforce broken laws, which is ultimately a losing proposition.”

The report concludes that DHS “is still trying to enforce programs like Operation Streamline, “a program which requires mandatory criminal prosecutions of non-violent border crossers, clogs the federal court system and drains resources that could be used to prosecute more serious criminals. DHS is also expanding partnerships with state and local law enforcement agencies (Secure Communities and 287(g) programs) in their search for ‘criminal aliens.’ These programs often identify people with no criminal history and persons ‘identified’ but found not to be deportable.”

The report says that the first year under the administration of President Barack Obama “was both promising and frustrating.” It describes “a year where the promise of reform seems to fight daily with the dynamics of an entrenched belief in an enforcement driven culture. For every two steps forward, it seems that the Department takes one step backward, inching its way toward a more humane and just system.”

It cautions that the immigration system is “living on borrowed time,” adding,
“Without immigration reform that gives DHS the breathing room to do the right thing, annual reviews will increasingly be catalogs of more enforcement measures without corresponding opportunities for immigrants to make the kinds of contributions to our country that enrich us all.”

The report was particularly critical of DHS’s enforcement priorities, arrangements with local law enforcement agencies, and asylum and detention procedures.

It said, “While DHS professes to have re-focused its attention on non-compliant employers in the workplace and prosecuting non-citizens with serious criminal convictions, data indicates that employers and violent
criminals make up a small percentage of enforcement targets.”

ICE prioritized detention reform in 2009, specifically addressing issues of
oversight, alternatives to detention, healthcare, and parole. “While advocateshave welcomed these initiatives, they continue to look for meaningful
changes in the day-to-day management of facilities and decisions to detain,” the report said.

It noted that DHS has continued to expand its partnership with state and local law-enforcement agencies, particularly through the Secure Communities and 287(g) programs.

The Secure Communities and 287(g) programs enlist the help of local law enforcement agencies to apprehend and detain people suspected of being illegal aliens. The programs have been widely criticized by police chiefs and sheriffs throughout the country for diverting local resources into activities for which they are not trained and arresting and detaining people for petty offenses.

DHS claims these programs target “criminal aliens.” However, people identified by these programs “include large numbers of individuals with no criminal history, individuals charged (but not convicted) of crimes, and persons ‘identified’ but not found to be deportable.”

Due process is an area in which DHS has made little tangible progress, the report says. For example, “While the registration component of NSEERS, a special registration program targeted at men from predominantly Muslim countries, was suspended in 2003, applicants applying for benefits continue to be plagued by mistakes made during the registration process, affecting their ability to adjust status or naturalize.”

The immigration court system remains overburdened, access to counsel is limited, and a streamlined appeals process offers inadequate review for many claims, the report charges.

It says there is “no evidence of progress in implementing the U.S. Commission on Religious Freedom’s recommendations for improving the expedited removal system for asylum seekers. The resolution of cases involving “material support” (of terrorism) continue to face delays that keep legitimate asylum seekers from receiving protection.”

The report recommends that DHS should create an ICE Ombudsman to investigate complaints, monitor enforcement strategies, and recommend personnel actions in response to complaints.”

To improve the conditions of detainees, ICE “should hire a Senior Advisor on Detainee Health, as the agency announced it would do last August, to maximize the effectiveness of the detainee healthcare group meetings and development of a medical classification system.”

ICE has been severely criticized for operating a network of detention facilities that fail to meet even minimum health standards. There have been more than a dozen deaths in detention because of failure to provide timely medical assistance in emergencies. Detainees also complain that the facilities offer little or no due process, principally access to their lawyers. Detention also often takes place far from the place where the detainee was apprehended, making it difficult to access legal help, families and records.

To improve performance in the asylum area, the report recommends, the Department should “create a Refugee Protection Office that would report directly to the DHS Secretary or Deputy Secretary. Coordinated efforts would increase the ability of DHS to quickly resolve lingering disputes such as resolution on material support and implementation of proposals to improve expedited removal for asylum-seekers.”

While praising the DHS for a number of positive developments, the report finds that “the spirit of reform is often stymied by an over-reliance on existing enforcement policies.”

This article originally appeared in