Wednesday, December 12, 2012

The Good News Column

Every year at about this time, I hear from a small group of readers who follow my columns on the Web. And every year, their message is the same: “Can’t you find some good news to write about?”

God knows, they’re entitled. Virtually everything I write deals with death, destruction and mayhem. Most of my tales expose the darkest side of the human species.

Nevertheless, I promise my readers that I will give some thought to their suggestion. And I do. But I never seem to come up with enough good-enough news to fill a good news column. For me, good-enough news would be something like a lasting peace deal between the Israelis and the Palestinians.

The bottom line is I fail. And one way I can think of to avoid that embarrassment is to ask readers what’s happening in the world that’s giving them hope.

So I did. And here’s some of what a few of them told me.

Their responses trended toward the sociopolitical and ran the gamut from democratization in Myanmar to ongoing protest in Egypt, from immigration to the U.S. to what young people are doing in terms of creative expression, from this nation's unmatched proclivity to innovate to embrace of same-sex marriage to “we can learn to love.”

Here are a few of those comments in their author’s own words:

Peter M. Shane, who teaches law at Ohio State, wrote: There is “a lot happening in the political world that gives me cause to feel good -- e.g., democratization in Myanmar, elections in Sierra Leone, ongoing protest in Egypt, blogging in China, the global rise in standards of living.

“We live in a time, of course, where every proclamation of hope can be met with a response of, ‘Yes, but . . .,’ but we shouldn't let our anxieties blind us when good things develop.

“Immigration to the U.S., for example, is good, and what the Obama Administration is doing to take the pressure off young undocumented immigrants is good. The rapid pace of change in social attitudes towards gays and lesbians is good. Getting millions more Americans on health insurance plans is good.

“When I really need a big dose of hopefulness, I focus on what young people are doing in terms of creative expression, journalism, political mobilization -- everything -- with the mind-blowing toolbox of new digital information and communication technologies.

“A lesson I take from the 2012 election is that people are tired of professional politicians' expectations for their passivity, and new technologies are enabling us to engage in the public sphere with a much greater reach -- think about how many more readers you reach than I.F. Stone! Isn't that amazing? For all these reasons, I feel very good, indeed.”

Kevin R. Johnson, who is Dean of the law school at the University of California at Davis, notes that he is “not particularly known for optimism” but is “happy about the chances for Congress to enact comprehensive immigration reform. Indeed, the time, I believe, is now for such reform, which could have a positive impact on millions of people in the United States.
“The last decade has been rather depressing when it comes to immigration and possible reform. The shadow of September 11 influenced any and all discussion of immigration and the national mantra becomes something like border "enforcement now, enforcement forever", to paraphrase Alabama Governor George Wallace's defense of segregation.

“In an attempt to secure Republican support for meaningful reform, the Obama administration deported more immigrants than any administration in U.S. history, close to 400,000 in fiscal years 2011 and 2011.

“Here is why I am happy about the chances that immigration reform might pass:

1. Reelection of a President committed to reform;

2. Rejection overwhelming by Latinos of a Republican candidate who -- to attract the base -- claimed in the primaries that he endorsed "self-deportation," would promote enforcement, would not sign into law the DREAM Act; and

3. The realization by Republicans that to be relevant in future elections they had to attract Latino/a voters, not alienate Latina/os by demonizing Latina/os and immigrants, and enact some kind of immigration reform.

Then along came Lu (for Ludwig) Rudel, who built a successful business career atop 25 distinguished years in the US Foreign Service. Lu admitted to being “very thankful for a lot of things” but “that does not mean I am optimistic about the future. In fact, I am probably less optimistic than you are.”

Lu goes on: “I share your admiration of the Constitutional protection afforded to us from public authority. I share your recognition and thankfulness for our Rule of Law (notwithstanding all of the "lawyer jokes" that are out there).

“But I also feel gratitude for those gun-slinging enforcers who are protecting me from hostiles both overseas and within our borders. That includes our military, Customs and Immigration and the Border Patrol as well as the local police. They deserve my thanks and support even when a few rotten apples abuse their mandate.

“I am a legal immigrant that was allowed to escape to these shores during the Holocaust. In the words of Mark Rubio, I ‘was given a chance...’ by this country to get a free education, to become a citizen, to serve in the military during the Korean War, to serve in the Foreign Service for 25 years and then to build a business that made a profit. That is a great deal in one lifetime for which I give much thanks.

“There are many challenges to the continued growth of this society and I am not optimistic that the present political system is suited to allow our society to meet these challenges effectively, in large part because we tend vilify our institutions every time we note that they are not perfect.

“I believe the right to vote needs to be earned. A citizen needs to show that he/she has qualifications (in the sense that the voter has enough knowledge) to make an informed selection. And those who do not vote should be fined (as is done in Australia).
“I have little respect for those who ‘game the systems’ that have been put in place by the citizens of this country, to gain an undeserved benefit.

“Whatever hope there is for our future rests with this nation's unmatched proclivity to innovate. Those who dwell in this country enjoy a wonderful ‘risk to reward ratio’. I hope it remains so. We are an adventurous lot.

“I can think of no other nation on this planet where I would prefer to reside.”

Col. Morris D. ‘Moe’ Davis (Ret.) was a US Air Force officer and lawyer, was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions. In October 2007 Colonel Davis resigned from his position as Chief Prosecutor and became the Head of the Air Force Judiciary, hours after he was informed that controversial General Counsel William Haynes ll would be his superior. Davis said, , "The guy who said waterboarding is A-okay I was not going to take orders from. I quit.” Since his resignation. Moe has frequently spoken out against the Commissions.

Here’s what keeps him optimistic:

“When I think about what gives me hope, two people and two groups come to mind.

“New York City Police Officer Lawrence DePrimo bought a pair of boots for a man out on the street with bare feet on a cold night. A lot of people will do the right thing when they know others are looking and they’ll get credit for their good deeds.

“I think it says a lot about a person’s character when he does the right thing when he has no idea anyone is paying attention. The world would be a better place if more of us acted like Officer DePrimo.

“Malala Yousufzai refused to let Taliban extremists stop her from advocating for education for girls in Pakistan and all a coward’s bullet could do was to galvanize support for her efforts.

“Too many of us just lay and down and offer up our liberties when the fear-mongers tell us it’s for our safety and security. More of us need to have the courage of a teenage girl to stand up to fear and march on. We say we’re the Home of the Brave; we ought to act like it….

“I see examples of compassion, courage, commitment and enthusiasm – the kinds of positive examples that are often drowned out by all the bad news we face on a daily basis – and I think there is room for hope for the future. As long as there are those kinds of people out there I’m not going to give up.”

Prof. Lawrence Davidson teaches history at West Chester University in West Chester PA. An expert on Middle East history and politics, he is also a prolific writer.

Here’s his take on keeping optimistic:

“The foibles of leaders and their institutions, and the willingness of a vast majority of people to support these, have existed for thousands of years. It is not going to change now. Nonetheless, one must struggle against the violence and injustice that inevitably results. In doing so one achieves personnel victory and a real sense of worth. So the struggle becomes its own good news. Also, I find the debating aspect of this struggle (now mostly done through the weblog) to be fun. It is a bit odd, but it works for me.

“I also happen to have a rather dark sense of humor. Often I find the pronouncements of our leaders to be ahistorical, illogical, pathetic and funny all at once. Of course the funny side doesn't work when considering invasions of Gaza or drone murders, but sometimes it applies to the often ridiculous efforts made to rationalize these actions. Again, this may be a bit crazy, but you need a little bit of zaniness to get by.“

Simultaneously pathetic and funny comes as no surprise to Dr. Jack N. Behrman, one of the world’s most respected economists, a senior official in the J.F. Kennedy Administration (where he was my boss), and Chairman of the MBA Program and Associate Dean of the Faculty at the University of North Carolina.

Jack reminds us that “Good News consists of focusing on those near and dear. A society is built on relationships, and the closer they are the more pleasure and joy is created out of the love of others.

“On a more expanded world scene, while there is the potential for many and varied relationships, it appears that the major thrust is to gain materially from the others -- a sadness.

“But, this orientation is contradicted when disasters occur, as with Sandy and the Japanese Tsunami -- then we see love and sharing pouring out. So, there is a fundamental social cohesion, but not enough love and compassion during ‘normal times’. We can learn to love, though, so some optimism is warranted.”

As the provocateur of all these sentiments, I hope I have earned the right to say that “we can learn to love” is the most optimistic – and hopeful -- statement on this page. If all of us work to that end, next year’s good news column will be easier to write.

Monday, December 10, 2012

To Hell with the Intelligence -- an Analysis

By Lawrence Davidson

Part I - Magdulien Abaida and the Real Libya

On 3 December 2012, BBC News reported on the plight of Libyan activist Magdulien Abaida. When the Libyan revolution broke out in Benghazi back in February 2011, she played an important part in developing a positive image of the revolt among European audiences and helped arrange material aid for the rebel forces. She did this against the backdrop of Western governments describing the rebellion as one that sought “democratic rights” for the Libyan people. Upon the collapse of the Qaddafi regime, the U.S. State Department issued a statement (2 November 2012) applauding the rebel victory as a “milestone” in the country’s “democratic transition." This matched Ms Abaida’s expectations. Unfortunately, her subsequent experience belied the optimism.

With the rebel victory in October 2011, Abaida returned to Libya to help with the “democratic transition” and promote her particular cause of women’s rights. However, what she found in her homeland was chaos. The tribalism that underlies social organization in Libya had come to the fore. According to Amnesty International, that tribalism is reflected in the activities of “armed militias...acting completely out of control....There are hundreds of them across the country, arresting people without warrant, detaining them incommunicado, and torturing them....This is all happening while the government is unwilling or unable to rein the militias in.”
Abaida adds that “during the revolution everyone was united, all were working together.” That, of course, was when many of the tribes had a common enemy–the Qaddafi regime. Now the common enemy was gone. As it turned out, Qaddafi’s dictatorship had served for 41 years as a center of gravity–a center that kept the centrifugal tribal forces in check. The National Transitional Council (NTC) that took over after the defeat of the regime and the parliamentary elections that followed, were supposed to fill the void. They proved insufficient to the task. Ms. Abaida and her cause has now become a victim of that failure.
Upon her return she advocated for gender equality to be incorporated into any new Libyan constitution. She never had a chance. The tribes are tied to traditions that are strongly patriarchal. Also, the chaotic nature of post-revolution Libyan politics allowed free play to extremist Islamic forces that saw gender equality as a Western perversion. In October 2011, Mustafa Abdul Jalil, “the internationally-known face of the revolution and head of the rebels’ NTC used his first public speech after the fall of Gaddafi (sic) to propose making it easier for men to have more than one wife.” For Ms Abaida this was a “big shock....We wanted more rights, not to destroy the rights of half of society.”

Worse was yet to come. When Abaida came to Benghazi in the summer of 2012 to attend a conference on the status of women in the new Libya, she was twice abducted by an extremist militia that saw her and the conference as anti-Islamic. During her abduction she was pointedly told that she could be killed and “nobody would know.” But they did not kill her. They just beat her up and turned her loose. She was left with the strong impression that, if she stayed politically active in Libya, she would indeed die and no one would know.
Part II – Rush to Judgment

Was what happened to Ms Abaida’s predictable? Or, to put it more broadly, could those Western leaders who spent billions of taxpayer dollars assisting in the “liberation” of Libya have predicted, with reasonably high probability, that victory for the rebels would result in political breakdown and the empowerment of extremist groups such as the one that kidnaped and assaulted Magdulien Abaida? I think that the answer to this is yes. Indeed, I suspect that the prediction was actually made yet ignored by the powers that be.
U.S. intelligence services such as the CIA, and their equivalents in other countries, have middle level professionals who know a great deal about almost every country in the world. They know the languages, read the local newspapers, listen to the radio and television stations, and have other sources of information that come through diplomatic and private channels. When it comes to Libya, it is beyond doubt that the relevant intelligence workers knew the nature of this society and the divergent tribal forces that had been so long kept in check by the Qaddafi dictatorship. It is also beyond doubt that, at this country-specific level, operatives in these intelligence agencies knew and were reporting about the relative strengths and weaknesses of extremist religious elements held in check by the regime. The normal routine is to pass such intelligence up a hierarchical bureaucratic channel. The information deemed important enough is then packaged into daily updated reports that end up, in the case of the U.S., with the president and his national security staff. Again, in the face of a serious rebellion against Qaddafi, it is more than reasonable to assume such information did get that far.

Yet, it would seem that such information caused no serious second thoughts about quickly jumping into the fray and backing the rebellion. Even with the historic consequences of our having armed al-Qaeda and similar groups during the Afghan-Soviet war, it does not appear that anyone in authority stopped long enough to ask if the U.S. might risk repeating this mistake in Libya. Instead, Washington and its allies rallied NATO, rammed through a UN resolution that allowed intervention and, in short order, was aiding and abetting the rebellion. One of the ways it did this was in supplying an almost unlimited amount of weapons to rebel forces through a conduit set up by Qatar. No one paid attention to just whom the Qataris were giving the guns to. Sure enough, some of them were given to al-Qaeda like elements.

Thus, the move to get involved in Libya occurred very quickly. The allure of destroying Muammar Qaddafi, who had for so long been the bete noir of the U.S. (though for the past few years he had reversed policy and cooperated with the West), must have been just too strong. Even Italy, which had found the Qaddafi government a dependable economic partner and secure source of affordable oil, dropped its support of the regime without much protest. In the rush to judgment, the question of who might gain power afterwards was, apparently, left to the middle echelon intelligence agents to worry about.
Now Qaddafi is gone, murdered to the acclaim of Hillary Clinton, and the tribal warlords and their militias have largely taken his place. The central government in Libya is weak and, under the present conditions, has little real chance of reigning them in. The aggressive extremists have our guns, as well as Qaddafi's, and some of them are probably migrating to Syria to carry on their battle. As for Magdulien Abaida, she is too afraid to return to the land she tried so diligently to help.

Part III – Conclusion

As intelligence agencies go, the CIA and its like are fairly good at collecting information, analyzing it, and rendering reasoned judgments as to its meaning. (They can be, of course, utterly evil when it comes to killing and torturing, but that is not the “mission” I am presently speaking of). Usually, the advice rendered by the middle level folks who do the analyzing and reporting errs on the side of caution. The problem is the political leaders all too often ignore the intelligence reports when they don’t fit with their political goals. Those goals reflect ideological and electoral concerns as well as the need to appear to be acting in strong and determined ways–more assertive protectors of “freedom” than their competitors in the opposition party. This works to make presidents and prime ministers prone to opportunism and short-sightedness. Thus, the rush to judgment in Iraq, in Libya, and maybe soon in Iran. In the end, Washington has repeatedly proven that Mark Twain was wrong when he asserted “all you need in this life is ignorance and confidence, then success is sure.”

Lawrence Davidson is a professor of History at West Chester University in West Chester, Pa. His work is reproduced here with permission.


Tuesday, December 04, 2012

How Does This Federal Judge Sleep at Night?

Today’s subject is “how to waste money and inflict maximum pain by locking up non-violent drug users for painfully long jail sentences.”

So let’s get right to it.

The Nation writes about a representative case in point involving a young woman named Sabrina Giles. Sabrina was 22 years old in 2004 and was sentenced to 12 years in prison for Conspiracy to possess with intent to distribute over 50 grams of meth; and possession with intent to distribute over five grams of meth.

The Nation, in its introduction to an article, writes that Sabrina’s parents fought often during her childhood, and frequently their arguments would lead to physical violence. They divorced after Sabrina’s father was incarcerated for trafficking marijuana. Her mother worked hard cleaning motel rooms to provide for Sabrina.

The article is by Federal District Judge Mark W. Bennett, and reading it will make you angry and break your heart. This is not some aberration the Judge trotted out as some kind of an editorial zinger. This description of Sabrina’s tragic journey through our broken criminal justice system was written by the man who reluctantly meted out her sentence. It appeared in the November 12, 2012, edition of The Nation. Judge Bennett was appointed by President Clinton.

There is a second reason Judge Bennett’s article is remarkable. That’s because only a tiny handful of sitting Federal Judges have spoken out publicly on the injustice of mandatory minimum sentences. In doing so, Judge Bennett has shown unusual courage and no doubt earned the enmity of those who think mandatory minimums are solving our drug problem.

Judge Bennett tells us that Sabrina’s battle with substance abuse began at age 12 when she started smoking marijuana. In tenth grade she became pregnant and dropped out of school. The father of Sabrina’s child was extremely abusive and is currently incarcerated.

When Sabrina was 19-years-old, she fell in love with a man 13 years her senior. He was a known methamphetamine dealer in New Mexico and introduced the drug to Sabrina.

On April 30, 2002, police officers went to Sabrina’s home to arrest the man -- he had been living with her since his release from jail three days earlier. Moments before police took him into custody; the man placed 0.79 grams of methamphetamine into Sabrina’s waistband as he hugged her. The police confiscated it, along with 49.95 grams of methamphetamine, 21.1 grams of marijuana, a handgun and her boyfriend’s drug ledger. Sabrina, a single mother, kept the gun for protection. Police arrested Sabrina along with her boyfriend.

Judge Bennett writes that Sabrina pled guilty and was held accountable for between 500 grams and 1.5 kilograms of methamphetamine. Though the sentencing guidelines proscribed a term of 70 to 87 months in prison, the charges against Sabrina carry a ten-year mandatory minimum. Sabrina’s probation officer took into account the detrimental impact her incarceration would have on her family and asked the Court for mercy.

Instead, “The government threatened Sabrina with an additional five-year mandatory minimum for the handgun, but agreed to a plea bargain of 12 years in federal prison”, Judge Bennett wrote.

Thus, a minor participant in the offense, with no criminal record, received just three years less than her boyfriend, a drug dealer who had experienced many run-ins with the law, Judge Bennett says.

He comments that, “During her incarceration, Sabrina has dedicated herself to turning her life round. She works hard at her prison job and maintains a positive attitude. Sabrina’s mother currently cares for Sabrina’s young daughter and is very supportive of Sabrina.”

This is a description of what’s actually happening in the country that has more people in jail than any other country in the world. – about 2.26 million at last count, year-end 2010. In addition, there were 70,792 juveniles in juvenile detention in 2010.

In 2008 approximately one in every 31 adults (7.3 million) in the United States was behind bars, or being monitored (probation and parole). In 2008 the breakdown for adults under correctional control was as follows: one out of 18 men, one in 89 women, one in 11 African-Americans (9.2 percent), one in 27 Latinos (3.7 percent), and one in 45 Caucasians (2.2 percent). Crime rates have declined by about 25 percent from 1988-2008. 70% of prisoners in the United States are non-whites. In recent decades the U.S. has experienced a surge in its prison population, quadrupling since 1980, partially as a result of mandatory sentencing that came about during the "war on drugs." Violent crime and property crime have declined since the early 1990s.

In addition, there were 86,927 held in juvenile facilities as of the 2007 Census of Juveniles in Residential Placement (CJRP), conducted by the Office of Juvenile Justice and Delinquency Prevention. As of 2009, the three states with the lowest ratios of imprisoned people per 100,000 population are Maine (150 per 100,000), Minnesota (189 per 100,000), and New Hampshire (206 per 100,000). The three states with the highest ratio are Louisiana (881 per 100,000), Mississippi (702 per 100,000) and Oklahoma (657 per 100,000).

In some countries, incarceration is a last step, not a first one. When people are locked up, it’s generally because a number of other initiatives have been tried first – and didn’t work. Not so in the US. Prison sentences are what’s being offered. Because, while there are a few promising pilot programs being run to demonstrate alternatives to prison, there are virtually no nationally available programs that are in sync with mandatory minimum sentencing to help the courts and the convicts to avoid wasting needless years in “the joint.”

Judge Bennett writes that he has sentenced more than 3,000 defendants in four federal district courts and reviewed sentences...Far from being a bucolic area, he writes, he sentences “more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco—combined.”

He says, “While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.”

Judge Bennett writes about crack defendants. He says, “They are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights.”

He adds: “Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.”

Why do we have federal mandatory minimum sentences? The enabling legislation is the Sentencing Reform Act of 1984. The Guidelines are the product of the United States Sentencing Commission, which reports to Congress annually. Their primary goal was to alleviate sentencing disparities that research had indicated was prevalent in the existing sentencing system.

The Sentencing Commission’ s future life is in the hands of Congress, which votes the funds for its work. For a number of years, there have been concerted efforts to persuade the Sentencing Commission to recommend to Congress an end to minimum sentencing. But the Commission – which is said to be good at vote-counting – has elected to nibble around the edges.

Few members of Congress appear to be prepared to question the effectiveness of mandatory minimum/maximum sentences. Many members fear primary challenges from rightwing candidates who are eager to accuse incumbents of being “soft on crime.” That attitude is largely responsible for the overly cautious approaches by Congress.

The Guidelines determine sentences based primarily on two factors: 1.the conduct associated with the offense (the offense conduct, which produces the offense level); and 2.the defendant's criminal history (the criminal history category).

The Sentencing Table in the Guidelines Manual shows the relationship between these two factors; for each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months, considering the year of the offense to be the same as the year of the guidelines. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84–105 months.

The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney."

Judge Bennett quotes William J. Stuntz, who claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines' authors try to fight that tendency...In short, plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences. Sentencing guidelines make it easy to issue those threats."

The federal guilty plea rate has risen from 83% in 1983 to 96% in 2009, a rise attributed largely to the Sentencing Guidelines.

“I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or counter-surveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months.”

“One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for ‘good time’,” Judge Bennett writes.

He continues: “Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.”
He continues: “If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.”

Judge Bennett concludes: “For years I have debriefed jurors after their verdicts. Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract—but when confronted by a real live defendant, even a ‘drug trafficker,’ they never find a mandatory minimum sentence to be a just sentence.”

We should be grateful to The Nation for publishing a scary piece on a subject many readers may find boring. And we should be equally grateful to Judge Bennett, who held the truth in higher esteem than the unexpressed views of many of his colleagues on the Court.

Wednesday, November 28, 2012

Rights Groups Blast Bahrain

By William Fisher
“You can’t say that justice has been done when calling for Bahrain to be a republic gets you a life sentence and the officer who repeatedly fired on an unarmed man at close range only gets seven years.”

-- Judge M. Cherif Bassiouni

These were the harsh and unforgiving words used by the Egyptian judge who headed the commission of inquiry mandated by the King of Bahrain to conduct an investigation and produce a report to identify the causes of and reforms needed to eliminate the violence that has plagued the tiny Gulf nation for the past two years. This is a one-year look-back at what has been accomplished and what has not.

The original BICI report (Bahrain Independent Committee of Inquiry), was funded by, presented to, and accepted by King Hamad bin Isa Al Khalifah himself. It described in pull-no-punches detail the frequent use of excessive force by security forces, the systemic abuse and torture of detainees, mass discrimination and dismissals of workers and students, and grave violations of medical neutrality.

The report “highlighted a culture of impunity prevalent among government officials at all levels, concluding that many abuses could not have happened without the knowledge of higher echelons of the command structure."

The BICI report was welcomed by the international community as a potentially critical step toward resolving the country's escalating political crisis. One of the most common criticisms of the report was that while the documentation of the events of February and March 2011 was extremely thorough, the report's mandate and its 26 recommendations to the Government of Bahrain did not extend far enough to resolve the country's political crisis.

Nonetheless, observers in Bahrain and the international community were hopeful these recommendations – if implemented swiftly, sincerely, and thoroughly – could set the stage for genuine national reconciliation and a process of meaningful political reform.

One year later, as tensions in Bahrain continue to escalate, the Commission says any understanding of the current crisis must include an honest, accurate assessment of the progress in implementation of the BICI recommendations.

Now, one-year-on, Judge Bassiouni and his team have prepared a follow-up report. The essence of what is says: “We have strived to carefully carry out such an assessment, although the task was made considerably more difficult by the lack of transparent, relevant information from Bahraini government officials, as well as the very limited access provided to independent organizations, researchers, and journalists.”

The Commission added, “If the government is making substantially more progress on implementing the BICI recommendations than it appears based on publicly available information, then they must more transparently provide evidence to support such claims and allow access for outside observers to confirm such claims independently.”

A number of other organizations have also weighed in with their own investigations. POMED (Project on Middle East Democracy) found that “the Government of Bahrain has fully implemented only three of the BICI report's 26 recommendations. Two other recommendations were impossible for us to properly evaluate due to a lack of available information, and 15 recommendations have only been partially implemented.”

Finally, POMED’s report continued, “The government has made no meaningful progress toward six of the recommendations, which are precisely the most important steps that need to be taken:

· accountability for officials responsible for torture and severe

· human rights violations

· the release of political prisoners

· prevention of sectarian incitement

· relaxation of censorship

· controls on free expression.

POMED added, “Nearly as troubling as the failure to address key areas has been the unrealistic assessment by the Government of Bahrain of its own progress. Bahraini government officials,

including the Ambassador to the United States, have claimed in public statements to have fully implemented 18 of the 26 recommendations. It is difficult to expect the government to make significant progress on the many unfulfilled recommendations while it maintains that most of those steps have already been completed.”

“Even the full implementation of the BICI recommendations would fall well short of resolving the current political impasse in Bahrain. But such moves are essential to national reconciliation and genuine political reform. Meaningful reform that fully addresses the legitimate democratic aspirations of the Bahraini people remains the only path to lift the country out of its current crisis. As such, it is also the only approach that will stabilize the country and secure Bahrain as an ally of the United States in the long-term,” POMED concluded.

Meanwhile, Bahrain’s well-oiled and highly professional in-country public relations machinery daily cranks out and distributes world-wide a daily dose of “good news” about all the human rights progress Bahrain is making. That effort is buttressed by high profile PR consultants – including the same New York-based firm that represents Bahrain’s close neighbor, Saudi Arabia.

Minister of Justice Khalid bin Ali Al Khalifa has been the King’s point man for comments from such outside groups as POMED’s He has been serving as minister since 2004 and as such, oversaw the ministry during the events of 2011 and provided legal justification for the demolition of mosques, dissolution of civil society organizations, and persecution protesters on dubious charges of "incitement to violence."

The National Commission issued a March 2012 progress report on the implementation of the BICI recommendations. Following that report, the Minister of Justice established a follow-up commission to continue monitoring and coordination. That commission appears to be similarly dominated by figures within the ruling family and the government, casting doubts on its impartiality. It is led by Dana Al Zayani, a former employee of the Crown Prince's Economic Development Board, and Hussein Alam of the Foreign Ministry.

A second report from POMED (the Project on Middle East Democracy claims the government has shown little will to translate its few positive institutional reforms into real accountability and enforcement of new codes of conduct. While the Bahraini Government is using its PR resources to earn credit for substantial progress toward to complete implementation of the BICI recommendations, security services have continued to arrest activists.

The most prominent activist in the country, Abdulhadi Alkhawaja, head of Bahrain’s leading human rights organization, has been jailed for life after surviving a 110-day hunger strike that brought him close to death “The public prosecution has yet to investigate over 300 cases of alleged torture, some involving deaths in custody, and there has been no investigation, let alone prosecution, for command responsibility, even at the immediate supervisory level, of people killed in custody as a result of torture.”

Alkhawaja’s youngest daughter, Maryan, remains out Bahrain, usually in Europe, so she can interact with the world media. His elder daughter, Zainab Al-Khawaja, has been in and out of jail main times since abnd before The Abab Spring. POMED (the Project on Middle East Democracy) says the Interior Ministry has reportedly opened investigations into the conduct of more than one hundred police officers, but the investigations have lacked transparency.

It adds that the government recently put seven police officers on trial for the well-documented torture of medical personnel, but international human rights organizations have highlighted scores of additional examples of police abuses that have not been investigated by the Interior Ministry.

Additionally, POMED suggests there is good reason to question Inspector General al-Ghaith's impartiality and effectiveness. Al-Ghaith served as Inspector-General for the Ministry of Interior before the beginning of protests in 2011, during which time he denied documented human rights abuses. The ongoing human rights abuses, perpetrated by security services with impunity, suggests that the Inspector-General's office is not yet effective.

Since March 2011, the tiny Island nation has assumed an importance out of all proportion to its size. It is oil-rich. It provides a clear path to the open sea. It is the contiguous neighbor of one of America’s staunchest allies in the neighborhood, Saudi Arabia. And it is the home of the US Fifth Fleet, which is both a political and an economic bonanza for Bahrain.

The country is ruled by the Khalifa family, who are Sunni Muslims, A large majority of the rest of Bahrain’s population is Shia. The Shia population claims it is discriminated against in many fields, including, housing, schooling, credit, and justice.

The New York Times writes, “The Obama administration’s Middle East policy has been criticized as inconsistent and sometimes timid. Republicans have blasted President Obama for what they have portrayed as ‘leading from behind’ in Libya. Many Arabs, meanwhile, have questioned why the United States has called for the resignation of Syrian President Bashar al-Assad, after months of violent attacks against anti-government demonstrators, while adopting a more measured tone about government repression in Bahrain, a U.S. ally that hosts the Navy’s 5th Fleet.
In an editorial, the newspaper quotes Secretary of State Clinton saying, “Our choices also reflect other interests in the region with a real impact on Americans’ lives — including our fight against al-Qaeda; defense of our allies; and a secure supply of energy,” Clinton said. “There will be times when not all of our interests align ... that is just reality,” she said.

“That is our challenge in a country like Bahrain,” she said. There, the ruling monarchy has cracked down on Shiite protesters who it says are promoted by Iran.”
The Times goes on to say, “Both she and Obama have reiterated that mass arrests and brute force are at odds with the universal rights of Bahrain’s citizens and will not make legitimate calls for reform go away.”

In neighboring Saudi Arabia, she added, one of the world’s largest oil producers and a key counterterrorism ally, “we have had candid conversations ... about our view that democratic advancement is not just possible but a necessary part of preparing for the future,” she said.
The Shia of Bahrain have found the US position at best tepid and suffused with mixed messages. What Bahrainis want from the US is a full-throated policy supporting the many against the few.

Given the competing equities facing the US, it seems very unlikely the Bahraini majority will get anything close to their wishes any time soon.


This article originally appeared in the pages of Prism Magazine.

Monday, November 26, 2012

Where Is The Outrage?

By William Fisher
You’ve entered the US illegally or you have overstayed your visa. You have a job and a family in America. But you are undocumented and subject to deportation after a hearing before an Immigration Judge.

Now you’ve been arrested by ICE – the Immigration and Customs Enforcement agency, part of the Department of Homeland Security (DHS). Here’s what you can expect:

Roberto Medina-Martinez, a 39-year-old immigrant, died at Stewart detention center in Lumpkin Georgia in March 2009 of a treatable heart infection. An investigation conducted following his death revealed that the nursing staff failed to refer Mr. Medina for timely medical treatment and the facility physician failed to follow internal oversight procedures.

Other avoidable deaths occurred in other facilities, where staff attempted to cover them up.

A man with serious emotional health problems in the Houston Processing Center in Texas was placed in solitary confinement for months at a time, a practice which the UN Special Rapporteur on Torture has deemed torture.

At Baker, Etowah and Pinal County Detention Centers and Jails, in Beverly Hills, California, families are only able to visit with their loved ones in detention through video monitors after having driven hundreds of miles to see them.

In 2011, a 55-year-old Honduran, Jose Aguilar-Espinoza, suffered a heart attack inside Theo Lacy, in Orange County, California.

At the Pinal County Jail complaints regarding sanitation include receiving food on dirty trays, worms found in food, bugs and worms found in the faucets, receiving dirty laundry, and being overcrowded with ten other men in one cell and only one toilet.

You can also expect that you will be shipped to an ICE center far from the place of your arrest, and that the files needed to adjudicate your case will have been sent nowhere or to another erroneous destination. This will delay any court hearing – sometimes for years. In many cases, there is no written record for an Immigration Judge to review. That review suffers from lack of facts plus the frequent difficulty of working in two languages.
Back in 2009, President Obama promised to reform this inhumane system. In his first term, the Obama Administration deported over a million people. Toward the end of that term, the numbers began to decrease some, as ICE followed Obama’s orders to show more compassion.

But the reality on the ground has not changed.

Pedro Guzman, formerly detained at the Stewart Detention Center, shared his firsthand experience: “We were treated like animals-- held in pod with 64 people, no privacy, eating food that was inedible and constant yelling and disrespect from the officers. We rarely had court dates even after they were already scheduled, and they made it impossible to adjust your status in a legal and efficient way. There is absolutely no justice in the detention system.”

U.S. Rep. Jared Polis, a Democrat from Colorado, recently joined the call for justice: “It needn’t take the passage of comprehensive immigration reform for us to work together to reform the immigration detention system and close the most egregious centers

highlighted in these reports. Taxpayers shouldn’t be asked to continue to support this waste of money and resources.”

Conditions at 10 of the worst jails and prisons that house immigrants have gotten so bad, the only option is to begin shutting them down, he said.

Azadeh N. Shahshahani, National Security/Immigrants' Rights Project Director and American Civil Liberties Union Foundation of Georgia and President of National Lawyers Guild, said, “The human rights abuses at the Irwin County Detention Center and the Stewart Detention Center in Georgia in many ways exemplify the problems with using remote, highly restrictive facilities to hold immigrants.”

He added: “The immigration detention system in the United States has grown drastically over the last 15 years and the appalling conditions in the detention centers that house immigrants have reached a tipping point. Today, national and local leaders responded by saying, enough is enough!“

According to Andrea Black, the Executive Director of the Detention Watch Network, “We hope that the Administration will act. ICE claims it has taken steps to reform the detention system, but the people actually in detention are suffering as much as ever. In his second term, the president has the power to bring about change that will uplift immigrants instead of lock them up.”

Among the report’s findings:

“While immigrants suffer under prolonged detention at Polk County and the Houston Processing Center, private prison corporations are getting rich,” said Bob Libal, Executive Director of Grassroots Leadership. “It doesn’t have to be this way. ICE should prioritize release of immigrants in community support programs that are far more humane, less costly, and are effective at ensuring immigrants are able to appear at their hearings.”

Bishop Minerva G. CarcaƱo, Resident Bishop of the Los Angeles Area of the United Methodist Church, said, “The detention of hundreds of thousands of immigrants in this country for profit and political gain is a moral outrage. Detention centers are not the answer to our broken immigration policies.”

The immigration detention system in the United States has grown drastically over the last 15 years and the appalling conditions in the detention centers that house immigrants have reached a tipping point. Today, national and local leaders responded by saying, “enough is enough!”

The Detention Watch Network has released a series of reports titled, “Expose and Close,” to reveal the widespread pattern of mistreatment at ten of the worst immigrant prisons across the country.

Adcovates are calling on President Obama to do what’s right and close these detention centers as well as issued a list of reforms to ensure the safety, dignity and well-being of immigrants held in detention.

According to Andrea Black, Executive Director of the Detention Watch Network, “We hope that the Administration will act. ICE claims it has taken steps to reform the detention system, but the people actually in detention are suffering as much as ever. In his second term, the president has the power to bring about change that will uplift immigrants instead of lock them up.”

The group is demanding the closure of ten jails and prisons across the nation that exemplify some of the most appalling conditions of immigrant detention. These facilities include Etowah County Detention Center (AL), Pinal County Jail (AZ), Houston Processing Center (TX), Polk County Detention Facility (TX), Stewart Detention Center (GA), Irwin County Jail (GA), Hudson County Jail (NJ), Theo Lacy Detention Center (CA), Tri-County Detention Center (IL), and Baker County Jail (FL).

In a related development, a group of ICE (Immigration and Customs Enforcement) agents is going to court, saying new Obama administration directives on removing illegal immigrants could put them in violation of federal law.

Ten ICE agents have filed a lawsuit in federal court in Dallas against Department of Homeland Security Secretary Janet Napolitano and ICE Director John Morton.

The organization NumbersUSA, with it's self-proclaimed stance of "for lower immigration," quickly claimed a stake in the suit, saying on its website that it was "financing the effort" of the agents' suit.
NumbersUSA also emphasized on its site that Kris Kobach, the Republican Kansas secretary of state who worked on Arizona's controversial immigration law and is an informal adviser to presumed Republican presidential nominee Mitt Romney, is representing the suing agents.

The suit cites Obama administration decisions to allow young people brought to the U.S. before the age of 16 who meet certain criteria to apply for a two-year relief period under the so-called Dream Act in which they couldn't be deported.
The complaint also objects to the policy of "prosecutorial discretion," in which ICE agents are supposed to focus their attention on dangerous criminals who are illegal immigrants. In a nutshell, the agents do not want to obey the new policies and do not want to face any disciplinary actions or lawsuits if they continue to arrest any type of immigrant who is in the United States illegally.

"We are federal law enforcement officers who are being ordered to break the law. This directive puts ICE agents and officers in a horrible position," Chris Crane, one of the agents filing suit and the president of the ICE agents and officers union, said, according to a news release posted on the NumbersUSA web site.

Matt Chandler, a spokesman for the Department of Homeland Security, responded, "DHS uses prosecutorial discretion to assist in focusing vigorously on the removal of individuals who are convicted criminals, repeat immigration law violators, and recent border-crossers."

Chandler said the Deferred Action for Childhood Arrivals decision is a temporary measure until Congress takes action on reforming immigration policies and that it "ensures that responsible young people, who are Americans in every way but on paper, have an opportunity to remain in the country and make their fullest contribution."

We Americans are fond of telling each other and the world how zealously we guard the civil rights of people who live in our country peacefully. We are also quick to draw a distinction between immigration detention and imprisonment at Guantanamo.
But in reality, the difference is marginal. The main difference is that, if you’re imprisoned in an immigration detention facility, you might one day get released – back to where you came from.

You rarely read about this dilemma in our newspapers or see it on television. You can’t care about something you know nothing about. And that’s what most of us know. Nothing. ICE has dropped a heavy shroud of secrecy over the issue. In their so-called debates, our presidential candidates rolled their eyes at the ceiling and pretended the subject was not on anyone’s agenda.

We can only hope that in Obama’s second term he will find the courage to put it on his agenda – to stand up to the know-nothings we keep sending to the Congress of the United States.

Saturday, November 24, 2012

Prosecuting the Prosecutor

By William Fisher

Prosecutorial Misconduct. We hear about it so rarely that it often becomes a big media deal, good for a day or more in the 24-hour news cycle.

Well, in three weeks, a Texas Court of Inquiry will be the scene of that kind of big media deal.

The Court will be reviewing allegations of prosecutorial misconduct against former District Attorney Kenneth Anderson. The former prosecutor – since appointed by Gov. Rick Perry to be a County Judge -- will be defending himself against charges that he withheld critical information in a first-degree murder case in Williamson County, near Austin.

The absence of that information caused Michael Morton to serve 25 years in prison for a crime he didn’t commit.

Ken Anderson was the prosecutor in 1987 when Michael Morton was sentenced to life in prison for the slaying of his wife at their home in Williamson County. A year ago, DNA evidence cleared Morton and he was freed. Another man now faces a murder trial in his wife's death.

Back in February, a Texas Judge ruled that there was probable cause to believe that Anderson violated state criminal law by refusing to turn over evidence that contributed to Morton’s wrongful murder conviction.

“As Mr. Morton’s case so painfully illustrates, tragic consequences can result when prosecutors put aside their ethical obligations in their zeal to win convictions, yet far too often their misdeeds go unpunished,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

According to Paul Cates of The Innocence Project, the judge’s ruling came in response to a report submitted by the Innocence Project asking the court to recommend a Court of Inquiry. That body enables a unique Texas legal procedure that can be initiated by a judge, to investigate whether Anderson committed wrongdoing by refusing to turn over to the trial court as ordered evidence pointing to Morton’s innocence. If the judge or a jury sides with the bar, the judge would decide a penalty ranging from public reprimand to disbarment.

Morton always maintained that his wife’s murder was committed by a third party intruder. The Innocence Project conducted depositions with key witnesses and uncovered other evidence showing that Anderson did not turn over the transcript of the victim’s mother telling lead investigator Sgt. Don Wood that Morton’s three-year-old son told her that Morton was not the attacker, a message to Wood dated two days after the murder reporting that what appeared to be the victim’s Visa card was recovered at a store in San Antonio, and a report from a neighbor observing someone staking out the Morton’s house before the murder.

Morton’s defense attorneys suspected all along that the prosecution was in possession of evidence pointing to Morton’s innocence because of the prosecution’s unusual decision not to call its lead investigator Sgt. Don Woods at trial. The defense raised these concerns with the trial judge who ordered Anderson to turn over all of the reports by Woods so that he could conduct a review of the reports. Although Anderson has repeatedly claimed to have no recollection of his prosecution of Morton, Anderson claimed for the first time in his deposition that his understanding of the trial judge’s order was that he turn over only those reports by Woods dealing with Morton’s statements.

This explanation contradicts all other participants’ understanding of the judge’s order and the judge’s own handwritten notes on the pre-trial hearing docket which state: “Court to conduct in camera [in chambers] inspection of report of officer Don Wood in connection with D[efendant’]s Brady motion.”

Evidence suggesting Morton's innocence, including a bloody bandana found near the crime scene, was kept from the defense. DNA testing of the bandana led to Morton's exoneration in 2011, and implicated another man who is also suspected of subsequently murdering another woman. Anderson's successor as D.A., John Bradley, who fought against allowing DNA testing in Morton's case, has said he now believes he was wrong, adding, "We shouldn’t set up barriers to the introduction of new evidence."

According to the bar's lawsuit, Anderson violated professional conduct rules by withholding five items. They include a memo to the sheriff's lead investigator in the case regarding a tip that a check made out to the victim was cashed nine days after she was killed; a phone message to the investigator that the victim's credit card was recovered in San Antonio; and a sheriff's department report from neighbors describing a man parking a van on the street behind the Mortons' home several time before the August 1986 killing.

The bar also alleges he withheld the transcript of a taped interview between the investigator and Morton's mother-in-law; and a condensed transcript of the taped interview.

The taped interview included the victim's mother saying her 3-year-old grandson told her that he witnessed the killing, gave details about it and said his father wasn't home at the time. Morton, who was convicted on circumstantial evidence, maintained he was working when the murder took place and that an intruder was responsible for his wife's death.
"(Anderson) affirmatively told the trial court that he had no evidence favorable to the accused," the lawsuit said. "That statement was false."

Morton was freed last year after DNA testing not available at the time of his trial revealed his wife's blood and DNA from another man on a bloody bandanna found near the Mortons' house around the time of the killing. The DNA tests are not mentioned in the disciplinary petition against Anderson.

Research by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas.
The coalition includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

The research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year. The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

From 2004 to 2008, courts found that prosecutors committed error in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.” In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

The coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal. Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.

Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction. (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed.

Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in 7of the reversals. Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).

“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct. But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors,” he said.

Results from this study indicate that of the 65 DNA exoneration cases involving documented appeals and/or civil suits addressing prosecutorial misconduct, 31 (48%) resulted in court findings of error, with 18% of findings leading to reversals (harmful error).

While not a perfect comparison, there has been one large, nationwide study of prosecutorial misconduct. The Center of Public Integrity found that among all 11,452 documented appeals alleging some type of prosecutorial misconduct between 1970 and 2002, 2,012 appeals led to reversals or remanded indictments, indicating harmful error—a rate of 17.6%. This is nearly identical to the rate of harmful error findings of 18 % in the DNA exoneration cases.

Over the past decade, the power of judges has decreased because of sentencing guidelines and other factors, while the power of prosecutors has jumped off the charts. Bar associations have found accusations of prosecutors’ misconduct embarrassing – this is peer review with potentially career-ending authority – and difficult to prove.

But it’s possible that lawyers, at least those in Texas, will see the findings of the Court of Inquiry as a too-long-delayed wake-up call.

Thursday, November 22, 2012

Thanksgiving 2012

By William Fisher

As my kitchen fills with more and more family members and “cooks for a day” on this Thanksgiving, I have slunk away to my little home office because I have been promising to write something about Thanksgiving – and my procrastination time has run out.

Thinking about the several hundred articles I’ve written so far in 2012, they are 95 per cent critical – highly critical, mostly of things our government has done (in my view) badly or not at all.

I have railed against Guantanamo, military commissions and indefinite detention. I have condemned our President for the burgeoning surveillance state we have become. Likewise, his drone “kill list.” I have charged that our policies and facilities for detaining undocumented workers for deportation are needlessly cruel and ineffective. And I keep thinking of how much money we could have saved or spent elsewhere if we had abolished the clueless Transportation Safety Administration (TSA). I have suggested that it’s long past time for Janet Napolitano to leave. I have been embarrassed by Mr. Mitt Romney’s flip-flops, his disgraceful disregard for facts, and his patrician conviction that 47 per cent of our country is worthless.

I have also been saddened by some of the major initiatives President Obama has promised to execute during his second four years. We wish him luck with such issues as climate change and comprehensive immigration reform. But he cannot govern the country without laws, and he is unlikely to get the laws he needs from Paleolithic Republicans who can focus only on the next snarky sound bite.

This list could run to many pages and would still be disgracefully incomplete. You’d be totally justified not wanting to read any more of these un-happy columns. But you get the idea.

This, after all, started out as “The Happy Column.” And it started with a pretty clear vision in my head of what we could give genuine thanks for on this Thanksgiving Day 2012.

At the top of that list is the fact that I’m writing this blogpost – and there hasn’t yet been a knock on the door from the secret police. They may well be hanging on every word I type, but while we still have a Constitution, I’m not getting arrested.

In something like 50 countries around the world, I would now be in custody. I’d be in prison and likely being tortured.

In those countries – and I’m not only talking about failed states like Yemen, Somalia, North Korea, et cetera, but substantial nations, like Israel and Iran, and other mature countries that pass judgments on other nations from the safety of the UN Security Council.

I’d be in the same degree of hot water if I participated in a mass protest, regardless of the subject. Or if I insulted the head of state. Or if I said anything even a tad derogatory about the military.

The key to this our relatively safe and happy Thanksgiving is the Rule of Law. And that is the cardinal difference between the United States and most of the rest of the world. We have it. Others don’t.

Some members of the Judiciary Branch of our Government have attempted to trash that sacred rule – sometimes with scarifying success. But that situation may be reversible.

It’s good that Obama has four more years. But when we get to Thanksgiving Day 2016, our government’s deficits will still be there – hopefully, different deficits than this year’s – but the list of things we did right will be longer.

Thursday, November 15, 2012

Muslim and Arab Groups Hit Back at Government Tactics

By William Fisher
Muslim-oriented organizations in the US – once seen as role models of cooperation with the government – are increasingly taking tougher stands against harassment by authorities, and don’t expect that to change because of the reelection of Barack Obama.

James Zogby, widely known as a pollster and president of the Arab American Institute, recalled before the U.S. Commission on Civil Rights that while then President George W. Bush was urging the nation to regard Muslims as their fellow Americans he was instructing his Attorney General to round up and jail ‘Middle Eastern-looking men.’

He said this type of discrimination had started in the 1970s but had only exploded into today’s Islamophobia after the terrorist attacks of September 11, 2001.

Zogby told the Committee, “From released government files we have learned of the extent of harassment of Arab Americans and Arab student activists during this period -- from Operation Boulder in the Nixon era, and the broad surveillance program against Palestinian student organizations in the 70s and 80s, to the extensive intelligence files on Arab American activists maintained by the FBI, sometimes in collaboration with outside groups, that were then used to harass members of my community.”

The attacks of September 11 “were a dual tragedy for Arab Americans. We are Americans and it was our country that was attacked. At the same time, because some assumed our collective guilt, Arab Americans and Muslims -- and others perceived to be Arab and Muslim -- became victims of hundreds of hate crimes,” he said, adding:

“But something important happened, making it clear that despite the enormity of the crime that had been committed, a new dynamic was at work. Many Americans rallied to our defense. President Bush spoke out against hate crimes, as did the Senate and the House of Representatives which both passed resolutions condemning bias against Arab Americans and Muslims. Federal and local law enforcement investigated and prosecuted hate crimes, and ordinary citizens defended and protected us, refusing to allow bigots to define America.”

He noted that he and his family received death threats, he said, “but for the first time, the perpetrators were arrested by the FBI, prosecuted by the DOJ, and convicted and sentenced for their crimes.”

But, he continued, “all was not well during the (George W.) Bush years.”

At the same time that these positive developments were occurring, “an entirely different message was being sent by then Attorney General John Ashcroft. In addition to mass deportations and the shameful ‘special registration’ program, Ashcroft issued new profiling guidelines that created a loophole allowing ethnic, religious, and racial profiling, leading to wide-spread singling out of Arabs and Muslims by a number of law enforcement agencies.”

Nonetheless, Muslim and Arab groups doggedly insisted on meetings with the various government actors, hopefully to develop strategies and tactics that would service the government’s needs while not interfering with the civil rights of members.

He testified that, with the election of Barack Obama, “we had hopes that we would see an end to these abusive practices. But policies that we had believed would change have not. We had hoped to see an end to the more controversial provisions of the Patriot Act. This did not happen. The Justice Department profiling guidelines remain in place and continue to be used by a number of agencies to the detriment of my community.”

Arab American citizens who have family in Canada or who conduct business in Canada are routinely profiled, experiencing disgraceful and humiliating treatment at the hands of Customs and Border Patrol. And we are also deeply disturbed by press accounts of the NYPD/CIA surveillance program, he said.

He charged that law enforcement has employed a variety of techniques against Muslim and Arab-Americans, including the use of coerced informants, widespread ‘ethnic mapping’, spying and reporting on innocent people going about their daily routines, reports that the FBI has used their community outreach programs to "collect and illegally store intelligence information on Americans' political and religious beliefs -- a clear violation of trust.”

It was about at this point that the charitable organizations began to cut off any hope of constructive dialogue. CAIR, a major charity, cut off its program of periodic consultations with the FBI – with each party accusing the other of not being honest.

Earlier, CAIR had been one of the leaders of a movement within the organizations to work closely with Treasury to create a “white list” of charities to which an organization member could give worry-free. But Treasury refused to participate in the exercise.

These negative practices, Zogby said, “create fear in my community and create suspicion about us in the broader society. This, in turn, leads to alienation and has the potential to radicalize some. It also leads to an atmosphere where suspicion can grow -- making us more vulnerable to hate crimes.”

The government’s pursuit of Muslims and Muslim Arabs (Arabs practice many religions including Christianity) has had an enormous negative impact on charitable giving, which is an important part of the Islamic faith.

In the aftermath of 9/11 the government reactivated an old law and incorporated it into the newly minted USA Patriot Act. It metes out stiff punishments for acts that “provide material support” to terrorist organizations and groups that likely to become terrorists.

These penalties apply even when the ‘material support’ consists of training in peaceful resolution of differences – one of the more bizarre cases to come before the Supreme Court.

In 2010, then Attorney General Michael Mukasey and other high-profile government officials and former officials participated in a seminar in Paris in which they praised an organization known as the Mujahedeen Khalq. Did these luminaries commit a crime, asked their lawyer, David Cole? No, it was free speech, he answered, but added, “Not necessarily.”

The New York Times reported that “the problem was that the US government had labeled the Mujahedeen Khalq a ‘foreign terrorist organization’, making it a crime to provide it, directly or indirectly, with any material support.”

Cole explained: According to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.

Cole says he argued just that in the Supreme Court, on behalf of the Los Angeles-based Humanitarian Law Project, which fought for more than a decade in American courts for its right to teach the Kurdistan Workers’ Party in Turkey how to bring human rights claims before the United Nations, and to assist them in peace overtures to the Turkish government.

But in June, the Supreme Court ruled against us, stating that “all such speech could be prohibited, because it might indirectly support the group’s terrorist activity.” Chief Justice John Roberts reasoned that “a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends. Under the court’s decision, former President Jimmy Carter’s election monitoring team could be prosecuted for meeting with and advising Hezbollah during the 2009 Lebanese elections,” Cole said.

The government has similarly argued that providing legitimate humanitarian aid to victims of war or natural disasters is a crime if provided to or coordinated with a group labeled as a “foreign terrorist organization” — even if there is no other way to get the aid to the region in need.

Yet The New York Times recently reported that the Treasury Department, under a provision ostensibly intended for humanitarian aid, was secretly granting licenses to American businesses to sell billions of dollars worth of food and goods to the very countries we have blockaded for their support of terrorism. Some of the ‘humanitarian aid’ exempted? Cigarettes, popcorn and chewing gum,” Cole revealed.

Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees.

Cole concluded: “Congress should reform the laws governing material support of terrorism. It should make clear that speech advocating only lawful, nonviolent activities — as Michael Mukasey and Rudolph Giuliani did in Paris — is not a crime.”
There have been a number of apparent miscarriages of justice in the administration of the “material support” law, which is run by the Treasury Department. Much of it has focused on excessive sentencing.

For example, a young Brooklyn man was sentenced to 15 years in prison for providing suitcase storage for socks and raincoats. A Syracuse, NY, oncologist formed a charity, Help the Needy, to send clothing and other humanitarian supplies to children in Iraq. Though the word ‘terrorist’ was barred from his trial, he was convicted of violating US sanctions and sentenced to (YEARS) in prison. Five leaders of The Holy Land Foundation, once America’s largest Muslim-oriented charity, received heavy prison sentences last week following a mistrial and a second trial in which they were found guilty. Then the Supreme Court declined to hear their appeal.
The appeal was based largely on the Sixth Amendment to the Constitution, which traditionally has meant an accused person was guaranteed face-to-face court-time with his/her accuser. The trial court ruled that two anonymous Israelis could serve as expert witnesses for the prosecution.

The two most senior Holy Land executives received sentences of 65 years each. Another received 15 years.

The government has also invoked the so-called State Secrets doctrine to persuade judges that any discussion of any part of any government lawsuit would compromise national security. Thus, no victim of the government’s anti-terror efforts has ever received a day in court.

But perhaps the most insidious form of harassment and discrimination is seen in the FBI’s “neighborhood mapping” program. This program uses both paid and unpaid informants to infiltrate Muslim and Arab-American neighborhoods and become familiar figures in the restaurants, movies, concerts, meetings and other occasions attended by their targets.

These informants perform two main tasks. They gather and report to the FBI any information they believe to be incriminating. Secondly, aided by others, the FBI puts together plots and plans for terrorist-type actions which agents pass along to their targets – who sometimes take the bait. There has never been a prosecution in which an FBI informant was not implicated.

"Everyone understands that the FBI has a job to do, but it is wrong and counterproductive for the bureau to target American Muslim religious groups for secret intelligence gathering and place innocents at risk of investigation as national security threats," ACLU attorney Hina Shamsi said.

Since the 2001 terrorist attacks, the FBI has stepped up its outreach to Muslim neighborhoods and efforts to recruit sources and gather intelligence in those areas. Though the federal government says those two efforts are completely separate, civil rights lawyers and some Muslims have complained that the FBI uses one to accomplish the other.

One of the most proactive and aggressive Muslim-oriented groups is the Muslim Legal Fund of America, which finances legal cases in which they perceive a civil liberties violation or where the government is criminalizing lawful behavior under the guise of fighting terrorism.

John Janney, Communications and Operations Director of the MLFA, responded to Prism’s question about government intrusion into mosques and Muslim communities. He told us the problems he sees are three-fold:

First Amendment: We feel that recruiting imams to spy on their communities for the government is an encroachment of the First Amendment's separation of church and state as well as the freedom to exercise religion without fear of government interference or retribution. The state has no legitimate business undermining the constitutionally-protected religious activities of any faith group.

Preemptive Prosecution: The FBI is recruiting, motivating, creating the plot, selecting the targets, and supplying fake explosives to individuals who would likely never be engaged in such activities without the FBI's encouragement. Essentially, the FBI is creating criminal acts in order to foil them. They are utilizing Dick Cheney's 1% Doctrine that says if there is a 1% chance of something bad happening, treat it as if it is a certainty. The FBI is finding naive community members and convincing them to commit crime -- not catching them, but convincing them first and then trapping them.

Makes us Less Safe: If the FBI is focusing so much attention on creating fake terrorists plots for individuals they recruit to carry out, then who is looking for real terrorists? It's a rather frightening thought and it seriously lowers confidence in those who are sworn to protect us.

However, there is a central reality that we must face: our messages are best communicated to and received by those who we have greater chance of influencing -- those who will actually listen and consider the message. So, any communication or advocacy we do will be for the Muslim community and supporters of civil liberties in general. One campaign we are starting soon is called "Think."

For the MLFA, standard operating procedure has morphed from ‘cooperate with law enforcement, reach an accommodation,’ to encouraging community members to THINK before answering any call to violence by someone who has befriended you, because that person might actually be an FBI informant.

Wednesday, November 07, 2012

“Justice Has Fled America” -- Reviewing the Holy Land Case

 By William Fisher

“Prior to this case, an anonymous expert has never been permitted in a US criminal trial as there is no genuine way to cross examine someone whose identity is unknown.”

The speaker is Michael Ratner. He is the leader emeritus of the Center for Constitutional Rights, a public service law firm that fought for the Holy Land group and in dozens of other unrelated cases.
The anonymous “experts” Ratner refers to were two Israelis who appeared at the trial as prosecution witnesses under assumed names. This, despite the clear and uncompromising language of the Sixth Amendment to the US Constitution, which says: “In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witness.”

The appellants argued that the trial judge's decision to permit the two Israeli witnesses to testify anonymously violated the Confrontation Clause of the Constitution. But in a unanimous decision, the Appeals Court ruled that, "while no trial is perfect, this one included, we conclude from our review of the record, briefs, and oral argument, that the defendants were fairly convicted."

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
But Ratner’s view is 180 degrees from the Government’s. He says, “As I look at history, Stalin's show trials come to mind. The denial of the last appeal by the Supreme Court confirms that justice has fled America. If you’re Muslim and especially if you are involved with humanitarian aid for Palestinians, do not expect justice; expect to be hounded, driven from your endeavors and jailed. This country is in the midst of a plague of Islamophobia.”

Thus, it was in that depressing environment that the Supreme Court last week brought the Holy Land Foundation (HLF) case to the end of its last appellate avenue. SCOTUS declined to hear their appeal.

The Government had accused HLF – once the largest Muslim-oriented charity in the US -- of providing material support in the Palestinian territories to Hamas, which the US had now designated as a terrorist organization.

HLF was shut down on December 4, 2001, by presidential executive order and without due process. The charity's offices were raided by federal agents, who seized all documents, assets and funds of the organization as well as personal property of employees.

After prosecutors found that all funds raised by the charity went to humanitarian aid and that there were no illegal financial transactions from HLF, they employed the "material support" statute as amended by the USA Patriot Act – a statute that civil liberty advocates call dangerously vague – to charge the five men with indirectly supporting terrorism through their legal charitable work.

The prosecution's argument was that the ‘zagat’committees used to distribute aid were "under the influence" of HAMAS – despite the fact that none of these committees were on the government's list of banned foreign organizations and were used by other charities to distribute humanitarian aid in the region. It is worth noting that some of these charitable committees were still receiving US funding through the USAID program as late as 2006.

The defendants faced two trials. In the first, in 2007, after 19 days of deliberations, the jury was unable to come to a definitive conclusion and the case ended in a mistrial.

During the 2007 trial, lawyers representing the Muslim Legal Fund of America said that the Justice Department fabricated quotes and modified transcripts. Critics faulted much of the evidence given during the trial. The New York Times journalist Leslie Eaton said Israeli agents using pseudonyms testified for the prosecution.

The government did not allege that the foundation paid directly for suicide bombings, but instead that the foundation supported terrorism by sending more than $12 million to charitable groups, known as ‘zakat’ committees, which build hospitals and feed the poor. The prosecution said the committees were controlled by Hamas, and contributed to terrorism by helping Hamas spread its ideology and recruit supporters.

The jurors had acquitted on some counts but were deadlocked on other charges ranging from tax violations to providing material support for terrorists. One defendant was acquitted of most of the 32 charges against him. While the first trial produced no convictions, the judge ruled it a mistrial and granted prosecutors another opportunity to put the five men on trial.

The second trial ended in harsh convictions. Again, the key witness for the prosecution was an anonymous expert who defense attorneys complained they were unable to adequately cross-examine – a fact at odds with the Sixth Amendment. 

Following the first trial, the New York Times reported: The decision today is "a stunning setback for the government, there's no other way of looking at it," said Matthew D. Orwig, a partner at Sonnenschein Nath & Rosenthal who was, until recently, United States Attorney for the Eastern District of Texas. "This is a message, a two-by-four in the middle of the forehead," Orwig said. "If this doesn’t get their attention, they are just in complete denial," he said of Justice Department officials, whom he said may not have recognized how difficult such cases are to prosecute."

Experts found the jury's failure to come to a definitive conclusion to be evidence of weakness in the government's ability to provide clear enough evidence against the charity. The Los Angeles Times quoted Georgetown University law professor David Cole as saying: "If the government can shut them down and then not convince a jury the group is guilty of any wrongdoing, then there is something wrong with the process.”

“The whole case was based on assumptions that were based on suspicions", said one of the jurors, who added: "If they had been a Christian or Jewish group, I don't think [prosecutors] would have brought charges against them."

The federal government began a retrial on August 18, 2008. On November 24, 2008, the jury delivered guilty verdicts against HLF and five individual defendants. Holy Land was found guilty of giving more than $12 million to support Hamas.

The jury found against HLF on all 108 charges. The charges included conspiracy to provide material support to a foreign terrorist organization, providing material support to a foreign terrorist, and conspiracy to commit money laundering.

The government was ecstatic. "Today's verdicts are important milestones in America's efforts against financiers of terrorism," Patrick Rowan, assistant attorney general for national security, said after the trial. "This prosecution demonstrates our resolve to ensure that humanitarian relief efforts are not used as a mechanism to disguise and enable support for terrorist groups."

The five convicted individuals were Ghassan Elashi, former CEO Shukri Abu-Baker, Mufid Abdulqader, Abdulrahman Odeh, and Mohammad El-Mezain.

Abu-Baker was sentenced to 65 years. Elashi, also a member of the founding Board of Directors of the Texas branch of the Council on American-Islamic Relations (CAIR), was also sentenced to 65 years. El-Mezain, former endowments director, received 15 years.

Because of the potential lengthy sentences for the criminal convictions, the individual defendants were remanded into custody without bail pending any appeal. A 2011 NPR report claimed some of the people associated with this group were being held in a new and highly restrictive prison known as the Communications Management Unit.

It has since been learned that the Communications Management Unit is a self-contained group within a facility managed by the United States Federal Bureau of Prisons (BOP) that severely restricts, manages and monitors all outside communication (telephone, mail, visitation) of inmates in the unit. A substantial majority of its inmates are Muslims.

"It is a dark day for America when our nation's highest court refuses to hear a case that is affecting everyone's ability to get a fair trial in America," said Khalil Meek, Executive Director of Muslim Legal Fund. "If judges are allowed to prevent defenders from challenging the credibility of expert witnesses, then our Sixth Amendment loses its teeth and our civil liberties suffer further erosion."

The verdict and the harsh sentences outraged Holy Land supporters.

Prof. David Cole told Prism, "In this case, the government made it a crime to engage in charity, without any evidence that a single penny went to further any violent, much less terrorist, act.  The defendants now face decades in jail for having done nothing more than raising money to feed the hungry.”

Francis E, Boyle, a law professor at the University of Illinois, pointed out that The Holy Land Foundation was well known as being the leading source in this country for providing humanitarian assistance to the Palestinians. “For that very reason it was targeted for persecution and destruction by the pro-Israeli neoconservatives in the (George W.) Bush Administration. After a valiant Defense, the Holy Land Five lost their case in the same reactionary United States Supreme Court that gave the American people Bush Junior as President in 2000.” 

And Prof. Chip Pitts, Lecturer at Stanford Law School and Former Chair of Amnesty International USA, told Prism, “When prosecutors single out Muslim charities and effectively shut down nearly all of them in the wake of 9/11, and when courts bend the rules to prevent suspects from confronting their accusers, it’s hard not to see prejudice at work distorting the right to equal justice under law.   
“The Supreme Court’s failure to review this case and correct its many procedural and substantive errors is yet another sign of the increasingly degraded rule of law in the United States.  Similar prejudice is endangering sensible policies with respect to allies like Turkey and Egypt. 

“These are grave trends which jeopardize both domestic tranquility and authentic national security.  They should not only concern us all, but must prompt concerted and strong demands for a return to principles of fairness, reason, and justice.”

Denial of certiorari was a huge blow to the remaining charities patronized by Muslims, which for several years had been engaged in planning, reorganizing and even talking with the Government (The Treasury Department, which is in charge of ‘material support” matters) about creating a ‘white list’ of permissible charities. For a time, contributions to other Muslim-oriented charities fell off a cliff, though they have since climbed closer to past norms.

Now, supporters of The Holy Land Five will be crafting initiatives to bring what they consider a travesty of justice to broad public attention. But, in the interests of truth, it needs to be said that these kinds of campaigns, while they are valuable as public education tools, rarely succeed in changing the minds of judges.