Tuesday, July 31, 2012

Protecting Legitimate Secrets or Concealing Embarrassment?

By William Fisher

Scott Horton, who is also a lawyer, is one of the most astute chroniclers of our world. He writes for Harper’s Magazine and believes that National Security Letters are “one of the creepier weapons in the arsenal of the national-security state.”

This reporter agrees, but finds another of our government ‘s legal games arguably more reprehensible. It’s known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”

Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.

First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence -- to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.

Like this case:

Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.

El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.

They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.

He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.

In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.

In May 2006, El-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.

What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.

Or this case?

Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.

Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.

The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.

The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty of mistaken identity. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.

The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”

The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.

Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.

Or perhaps this case:

In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."

Shortly after the suit was filed, the government intervened and inappropriately asserted the "State Secrets Privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.

One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was awarded damages of one million pounds.

During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.

Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.

In October 1948, a B-29 Superfortress caught fire at 20,000 feet on takeoff in central Georgia. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed.

Three civilian engineers who had been testing electronic equipment onboard the plane were killed. No further information was provided to the engineers’ families. The government said its investigation of the crash was a military secret. The Air Force said disclosure might jeopardize national security by revealing the nature of their work.

The fight for information found its way to the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds.

Since then, Reynolds has been the standard illustrating the bond of trust between judges and other officers of the court. Despite Reynolds’ disastrous outcome, judges are still apparently ready to buy what prosecutors are selling. So far in the recent history of the State Secrets Privilege, not a single plaintiff has won a single case!

The conclusion of the Reynolds case is instructive.

In 1949, one of the widows of the dead pilots sued the government for negligence, in part to make up for the loss of her husband’s salary. The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document “without showing it to a judge,” in camera, or private, review.
And five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. Chief Justice Vinson wrote, “There was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”
Blocked from probing the cause of the crash, the widows – two others had joined the suit -- was advised to settle. Later a copy of the court’s opinion was downloaded, and there was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash.

The readers believed that the claim about the engineers’ top-secret electronics work was a fiction designed to mask the fatal series of errors and breached procedures. The text that had been blacked out all those years ago was not government secrets but the names of those who had been at fault.

As a candidate, Barack Obama opposed the Bush administration’s embrace of the State Secrets Privilege as a tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”
The Justice Department continues to claim fairness and even-handedness as it misuses the SSP. Says the DOJ: “The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege. The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”

Furthermore, it adds, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”

The Obama Administration has proposed a number of legislative changes in the SSP and the way it should be used. None of these has gotten very far in a Congress fearful of bucking any trend that ran counter to the perception of victory in the “war on terror.”

Jameel Jaffer of the ACLU has a rather different take. He said, “It's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."

Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told this reporter, “There are innocent individuals who have been swept up in U.S. government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged.”

He added: “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government’s invocation of the state secrets privilege,” he added. “As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”
But legal experts are beginning to discuss “a new departure” in the use of the SSP. It springs from the Obama Administration’s “kill list” – individuals, including US citizens, who have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government.
This incendiary ruling – made only by the Executive Branch of government, not yet tested by any court – has rocked the legal world.

The sparse wording of the ACLU announcement of this newest development suggests its shock value.

The ACLU said, “Today in Yemen, U.S. air strikes killed American citizen Anwar Al-Aulaqi. Al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented Al-Aulaqi's father in a lawsuit challenging the government's asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”

In response to the killing of Al-Aulaqi, ACLU Deputy Legal Director Jameel Jaffer said:

“The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”

Ben Wizner of the ACLU suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”

The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield -- including against US civilians who have not been charged with any crime.

This article originally appeared in the pages of Prism Magazine.

Saturday, July 28, 2012

Here's an email I received from Sam Smith, one of my favorite journalist-watchers. It needs to be read and understood by any one who picks up a laptop or a quill pen to voice an opinion or offer constructive public advice to friends and colleagues. If more folks listened to Sam, we'd have more reporters and fewer stenographers.

Personal to editors

You did build that lie
Reporting a lie as fact is not being objective, it's just embedding you and your media in the lie. A lie is not a fact; a lie is a lie. And part of a journalist's job is to distinguish between lies and facts. Or used to be. Because today the media regularly reports lies as though they were just another fact.

Here's an example. I just googled the Obama phrase from the speech the Republicans are presenting so falsely: "You didn't build that." There were 208,000 hits in the past week. Then I googled a phrase that helps put Obama's comment in context - "If you were successful, somebody along the line gave you some help" - and there were only 9,900 hits.

Why the difference? Because the media overwhelmingly reported the GOP lie and not the actual context.
Any media that did so should put Obama's actual statement on the page or in the same slot as it reported the lie and, yes, should have said "build those" instead of "build that." To save you some time, here is what Obama really said:

"There are a lot of wealthy, successful Americans who agree with me -- because they want to give something back. They know they didn’t -- look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something -- there are a whole bunch of hardworking people out there.

"If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.

"The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.

"So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together."

Thursday, July 26, 2012

The FBI’s Secret Weapon

By William Fisher

On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.

Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.

These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.

The law – actually an old law greatly expanded -- had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”

Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.

Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.

The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.

The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.

On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stamford and Oxford. Here’s what he told Prism:

“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”

And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties -- provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.

In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “

One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules.”

The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows.

Manhattan native Nicholas Merrill ran an Internet start-up named Calyx. He was the recipient of an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.”

The FBI withdrew its NSL to Merrill in 2006, apparently after Merrill made it clear he was not going down without a fight.

Ellen Nakashima has profiled Merrill in a piece in the Washington Post. Here’s her lede:

“For six years, Nicholas Merrill could not tell even his fiancĂ©e, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority.”
“What led Merrill to mount a challenge against the use of NSLs?”

“Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill.

“He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human rights and other nonprofit groups, would be investigated for terrorism or espionage.”
“It’s a perfect example of how the government can use its broad powers to silence people,” Merrill told The New York Times. Until August, he was forbidden to acknowledge the existence of a 2004 letter that the company he founded, the Calyx Internet Access Corporation, received from the F.B.I.”

According to the ACLU, Merrill is now free to speak about the request, but he is still barred from discussing what information he had been asked to provide. As a result, he said, before he gives a talk he consults a six-page guide prepared by his ACLU lawyers to be sure that he complies with the order to avoid risking a punishment of five years in prison.
The government cites national security as the reason the contents of the letters — even their existence — are kept secret. The FBI says it is trying to prevent plots as they are being hatched.

Today there appears to be general agreement that it has become easier to challenge the letters’ requests as well as their secrecy. At the moment, there are no new challenges in the court system, the government and the ACLU say.

The New York Times reports that, to one of Merrill’s ACLU lawyers, Jameel Jaffer, the smooth operation of the system is a sign that it is not working. The privacy rights at stake are not those of the companies who hold the information, Jaffer said, but “about people whose records are held.” And those people should be told, he said.

“People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. “Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible.”

And life for the NSL appears to be heating up elsewhere as well. According to the Electronic Frontier Foundation (EFF) , the U.S. government with assistance from major telecommunications carriers including AT&T has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.

The EFF web site writes that news reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.

The web site reports that EFF is fighting these illegal activities on multiple fronts. In Hepting v. AT&T EFF filed the first case against a telecom for violating its customers' privacy. In addition EFF is representing victims of the illegal surveillance program in Jewel v. NSA a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.

At the end of the day, one would have to assess NSLs as quirky – yet highly dangerous law. It’s quirky because it seems to oblige those who don’t like headlines like “Here’s Some News The Government Doesn’t Want You to Know.”

It’s quirky because it seems to disappear from the headlines for long periods for everyone save those who aspire to Ph. D’s in NSLs, and then out of nowhere comes rushing back to make big news. In reality, it simply keeps stepping smartly along, avoiding major collisions and remaining largely invisible to the public and the press.

“The Press” would be a hefty segment of Washington DC journalists, those who are often dubbed “the stenographers” – those corporate scriveners who each day trade substance for access.

We shouldn’t be surprised that some Senators say the abuses in the Patriot Act would ‘stun’ and ‘anger’ the US public if revealed. We should be surprised that there aren’t’ a lot more lawmakers – and their constituents -- of both parties sounding ‘stunned’ and ‘angered’ that they slept while their liberties became bad dreams.

This article originallly appeared on the pages of Prism Magazine

Monday, July 23, 2012

Crazy While Locked Up!

By William Fisher

Is it just part of the 99-1 percent formulation of post-compassion capitalism that people suffering from mental illnesses commit crimes and end up in prison are simply consigned to the landfills of decomposing humanity – and become forgotten and invisible?

Well, Adam Smith, generally thought to be the “father” of Capitalism, never subscribed to that construct. In an era when safety nets were for sissies [1723-1790] Smith saw an urgent need to help the least fortunate of our citizens. He dubbed it – and many other characteristics of capitalism – The Invisible Hand.

Here’s what Smith wrote in his “Theory of Moral Sentiments”:

“Though our brother is upon the rack, as long as we ourselves are at ease, our senses will never inform us of what he suffers. They never did and never can carry us beyond our own persons, and it is by the imagination only that we form any conception of what are his sensations...His agonies, when they are thus brought home to ourselves, when we have this adopted and made them our own, begin at last to affect us, and we then tremble and shudder at the thought of what he feels.”

But last week the Invisible Hand wasn’t working for Warren Hill or Yokamon Hearn. Both were mentally retarded. Both were executed. Despite a Supreme Court decision that the death penalty would violate the Eighth Amendment against cruel and unusual punishment.

In Georgia, the State Board of Pardons and Parole denied Hill’s request to commute his death sentence and on the same day the US Supreme Court turned down his request for a review. Previously a trial judge had ruled that Hill was indeed mentally retarded. But the Georgia Supreme Court later said Hill failed to prove his intellectual disability “beyond a reasonable doubt.” Legal experts have pointed out that this bar is so high that virtually no mentally ill person could scale it. So Georgia turned justice on its head: it is almost always the State, and not the Defense, that has to prove an inmate’s deficiency.

While in prison between the age of 28 and 33, Hill tested at a grade level of approximately 6-7, and had an IQ within the range of mental retardation.

Texas death row inmate Yokamon Hearn, 33, was executed the same week in Huntsville for the 1998 carjacking and murder of a Dallas-area stockbroker.

If you trip and break a leg, you don’t go to the supermarket to get it fixed. You go to a hospital. If you’re suffering from a mental illness, you don’t go to the county jail to make you better. You go to a mental illness hospital. But where? For the past twenty years or so, a large and growing population of mentally ill men and women have been discovering that they have virtually no place to go and that their future is homelessness followed by jail. Thousands are serving long sentences for relatively minor infractions.

Human Rights Watch (HRW) has produced several landmark reports since 2000 on mental illness in prison. They report that some of the inmates commit serious crimes. Others commit non-violent or “victimless” crimes. Others simply “act out” to get themselves arrested. They can then go through all the due process steps afforded to defendants with no illnesses – except that the nature of their illnesses often prevents them from being able to exercise those rights.

The HRW Reports go on: Sometimes they have intelligence deficits and can’t explain themselves. Sometimes they lack judgmental skills – they don’t know how to make a plea bargain for a lighter sentence or they choose an inexperienced lawyer. Or sometimes, they’re not taking their meds and they are at the dangerous end of their spectrum of peace vs. rage.

The grandson of a friend was convicted of murder in upstate New York. He had been diagnosed several times with schizophrenia and was on specialized psychotic drugs. Of course he wasn’t allowed to bring these drugs into the jail – which was a county jail, not a prison – and so he was “off his meds.” And he was off them for weeks, until a supply was ordered. In fact, this defendant was obliged to go through his entire trial without medication. When he finally saw a psychiatrist, it was on a TV monitor. There was no psychiatrist able to be physically in the jail.
So here is a young schizophrenic, looking forward to spending the rest of his life in a jail rather than a mental hospital, arriving at what will be his new home for the rest of his life and finding no meds, no doctor, no nurse, no nothing.
Then there’s the “supermax” issue. According to the HRW Report, when a mentally ill inmate of a supermax breaks a rule, he/she is punished in the same way as someone from the general population. A news story about the soon-to-be-closed Illinois Tamms supermax profiled one prisoner with a well-documented history of paranoid schizophrenia who was held in solitary for nearly six years, mutilating himself and smearing feces.

Other Tamms prisoners reportedly cut themselves, eat their own flesh, attempt suicide, and engage in other behaviors consistent with suffering from serious and untreated or poorly treated mental illness.

The HRW Report says the psychological harm of supermaximum security confinement is exacerbated because mental health professionals are not permitted to provide a full range of mental health treatment services to the prisoners. Mental health services are typically limited to psychotropic medication, a health care clinician stopping at the cell front to ask how the prisoner is doing (that is, "mental health rounds"), and occasional meetings in private with a clinician.

HRW adds: Individual therapy, group therapy, structured educational, recreational, or life-skill enhancing activities, and other therapeutic interventions are usually not available because of insufficient resources and clashes with prison rules-for example, insufficient numbers of custodial staff to take prisoners to and from their cells to private meetings with clinicians, and rules requiring prisoners to remain in their cells and prohibiting contact with other prisoners.

As Duncan Campbell of The Guardian wrote in the Los Angeles Times, “Prisons were never designed as facilities for the mentally ill, yet that is one of their primary roles today. Many of the men and women who cannot get mental health treatment in the community are swept into the criminal justice system after they commit a crime.”

In fact, they commit crimes specifically to get swept back into the system. For example, they act out, get themselves arrested, and know at least that they’ll have a meal and a roof over their heads for a day or two -- or longer.

Twin Towers jail in central Los Angeles is known by the Los Angeles county sheriff's department as the biggest known jail in the world. In 2003 there were more than 2,000 mentally ill prisoners, recognizable by yellow shirts and the letter M on their name tags, make up almost half its intended occupants.

There are multiple reasons. “De-institutionalization,” the emptying of state mental hospitals, has been one of the most well-meaning but poorly planned social changes ever carried out in the United States. According to a 2010 study by the Treatment Advocacy Center and the National Sheriffs Association, it was a product of the overcrowding and deterioration of hospitals; new medications that significantly improved the symptoms of about half of patients; and a failure to understand that many of the sickest patients were not able to make informed decisions about their own need for medication.

Ronald Reagan, as governor of California, is often blamed for the failures of this policy, but the emptying of the state’s mental hospitals began in the mid-1950s under Republican governor Goodwin Knight and continued in the 1960s under Democratic governor Edmund “Pat” Brown. When Reagan took office as governor, the hospitals had already been half-emptied. Reagan distinguished himself, however, by vowing to close the hospitals completely.

As this failing social policy was mincing its way across the nation, next to nothing was being done to prepare our prisons for the new intake of now dispossessed mentally ill patients. Similar patterns began to emerge cross country.

And there was at least one other major factor at play. A blockbuster factor. It is that our prison population was growing exponentially, largely due to the so-called “war on drugs.” Law enforcement went on a drug-bust binge, arresting and incarcerating citizens who had a single marijuana joint in a pocket. Along with that Draconian regimen came Mandatory Minimum Sentences, which virtually removed from judges the discretion to decide each case on its merits (many of the mandatory minimums were later changed to non-mandatory guidelines).

Scholars seem never to tire of arguing about whether Americans simply love to lock people up or not. But follow the feet during this period.

Federal statistics from 2006 reveal that the number of mentally ill inmates in U.S. prisons and jails quadrupled since 2000, according to Human Rights Watch. More than half of all prison and state inmates reported mental health problems, including symptoms of major depression, mania and psychotic disorders, according to a federal Bureau of Justice Statistics (BJS) report, “Mental Health Problems of Prison and Jail Inmates.”
In 1998, the BJS reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. HRW reports that the rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).

Women prisoners have an even higher rate of mental health problems than men: almost three quarters (73 percent) of all women in state prison have mental health problems, compared to 55 percent of men, according to the BJS.

“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program and co-author of the 2003 report, “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.” “Prisons are woefully ill-equipped for their current role as the nation’s primary mental health facilities,” she said.

According to HRW, deficient mental health services in prisons and jails leave prisoners under-treated or not treated at all. Across the country, prisoners with mental health problems face a shortage of qualified staff, lack of facilities and prison rules that interfere with treatment.

When Charles E, Samuels Jr., the Director of the Bureau of Prisons – part of the Department of Justice – testified to a Senate Committee earlier this month, he could not tell lawmakers how many mentally ill patients were locked up in Federal prisons.

But HRW states that the Bureau of Justice Statistics – also part of the DOJ – reports that 56 percent of state prisoners and 45 percent of federal prisoners have symptoms or a recent history of mental health problems. Prisoners have rates of mental illness- -including such serious disorders as schizophrenia, bipolar disorder, and major depression- - that are two to four times higher than members of the general public.

Studies and clinical experience consistently indicate that 8 to 19 percent of prisoners have psychiatric disorders that result in significant functional disabilities, and another 15 to 20 percent will require some form of psychiatric intervention during their incarceration, HRW says.

The organization points out that mental health treatment can help some prisoners recover from their illness and for many others it can alleviate its painful symptoms, prevent deterioration, and protect them from suicide. It can enhance independent functioning and encourage the development of more effective internal controls.

But HRW finds that prisons are ill equipped to respond appropriately to the needs of prisoners with mental illness. Prison mental health services are all too frequently woefully deficient, crippled by understaffing, impossibly large caseloads, insufficient facilities, and limited programs. Many seriously ill prisoners receive little or no meaningful treatment.

Gains in mental health staffing, programs, and physical resources that were made in recent years have all too frequently since been swamped by the tsunami of prisoners with serious mental health needs, says HRW.

In Dade County, Florida (Miami), Judge Steven Leifman did a survey in 2010 of the people who used his court most. The result was 94 people. All had schizophrenia. These 94 people were arrested 2,200 times and cost the State of Florida $13 million. They had only two places to go: the streets or jail. They chose jail, which meant they had to commit an offense and get arrested. Knowing the drill well, they acted out, were arrested and were on their way to jail.

HRW says a disproportionate number of the prisoners in solitary are mentally ill. Yet prison officials across the country have increasingly embraced long-term segregation to manage and/or to discipline prisoners who are perceived to be dangerous, but also those who are seen as difficult or disturbing.

In its 2009 report, Human Rights Watch and the United Nations outline a comprehensive package of recommendations to Congress – with virtually no hope at all that they will ever become law.

But this was a given from the get-go. Government agencies tend to
talk a lot; they form Task Forces. They create charts and graphs and Power Point Presentations for their bosses. They convene press conferences to announce what they’re going to do. The other agencies they’re dealing with pretty much do the same, if they do anything. Too often, by the time it’s past time to show some results, Congress people have changed, Congress has new priorities, we have a new president and a small army of political appointees who know nothing about the high visibility push to begin to solve the “crazy while locked up” problem. There is an ominous silence as lawmakers wait for the National Rifle Association to weigh in.

In the prison reform game, progress gets measured in thimbles.

Saturday, July 21, 2012

Athan Theoharis, Emeritus Professor of History, Marquette University, has just published a new extended essay on surveillance policy and the lessons of the Cold War—"Expanded Power: The FBI, the NSA, and the Struggle between National Security and Civil Liberties in the Wake of 9/11" —documenting how the same policies and procedures adopted during the Cold War years were employed after 9/11 with similar adverse impacts on civil liberties and democratic procedures. Here is an abstract.

The full paper can be found here: http://www.nowandthenreader.com/expanded-power/


In the aftermath of 9/11, and in response to complaints about the nation’s intelligence gathering (which might have prevented the terrorist attack), the Bush administration granted expanded powers of surveillance to the Federal Bureau of Investigation and the National Security Agency. The aim was to enable these agencies to uncover terrorist plots before they could be executed. In short, the agencies were to become more pro-active in preventing criminal actions, rather than simply investigating them after the fact.

This expanded authority necessarily rekindled a perennial debate in American history: the proper balance between national security and civil liberties,between the government’s need to know and
its citizens’ right to basic freedoms of privacy and thought. In this provocative essay, the foremost historian of the FBI considers the record of the past to assess the results of the broadened powers of the
present. Surveying the experience of World War II and the cold war, and comparing them with present-day activities, Athan Theoharis concludes that Americans may feel marginally safer, but at a dangerous cost to their freedoms and to the tenor of our political dialogue. To read more:

Thursday, July 19, 2012

Bill to Shorten Prison Sentences

By William Fisher

Public blowback over thousands of men and women wrongly sentenced to long prison sentences based on flawed forensics twenty years ago has led to the introduction of new bills in Congress designed to put the faux science on a scientific fact-based footing.

The Forensic Science and Standards Act of 2012 has been written “To establish scientific standards and protocols across forensic disciplines.” It was introduced by Sen. Jay Rockefeller, Democrat of West Virginia, a member of the Senate Committee on Commerce, Science and Transportation committee, and Reps. Eddie Bernice Johnson, Donna Edwards and Daniel Lipinski, members of the House Committee on Science, Space and Technology.

Twenty years ago, sloppy, inaccurate and misleading conclusions were presented to juries in some 10,000 cases. There were hundreds, perhaps thousands, of incorrect convictions based on faulty analyses, particularly of hair. A DOJ-FBI Task Force claimed it was studying the matter. But if it found anything illuminating, it turned that material over to the prosecutors, not to defense counsel. A senior special agent – a specialist in hair analysis – was fired. But that was it; the Task Force concentrated on that one forensics official. Whistleblowers claim there were many others who were guilty of the same types of corner-cutting and downright dishonesty.

The proposed legislation would establish federal grants to help create forensic-science standards, in an effort to help reduce wrongful convictions based on flawed forensic results. It would

 The Innocence Project, the public service law firm which tries to free prisoners through analysis of DNA, said in a statement:

“On Friday, leaders of the Senate Commerce Committee and the House Science Committee took a giant step forward in ensuring that forensic science is based on strong scientific research and governed by consistent and meaningful standard.”

The organization added, “For far too long, the forensic science disciplines have suffered from the lack of these components, resulting in practices that hamper law enforcement’s ability to solve crimes and contribute to wrongful convictions.  The bills that were filed today are an important component of ensuring that forensic sciences are based on solid, reliable research.  We urge Congress to act quickly to enact this legislation and to develop and support mechanisms for the practical implementation of the resulting research and standards.”

For example, last November Science Daily wrote of a man with a low IQ who had confessed to a gruesome crime. Confession in hand, the police sent his blood to a lab to confirm that his blood type matched the semen found at the scene. It did not.

“The forensic examiner testifies later that one blood type can change to another with disintegration. This is untrue,” Science Daily wrote. “The newspaper reports the story, including the time the man says the murder took place. Two witnesses tell the police they saw the woman alive after that. The police send them home, saying they ‘must have seen a ghost’."

After 16 years in prison, the falsely convicted man is exonerated by DNA evidence. But for all the years he was not exonerated, the jury placed more credence in a confession than in a scientific DNA test. Further, once a jury learns of a confession, it is less likely to dig into DNA tests aggressively. Research has shown that confessions can be every bit as unreliable as eyewitness identifications.

The proposed legislation still has a long way to go. The Senate version has no co-sponsors, of any party. House Republicans control the calendar and they are far more interested in repealing the Affordable Care Act than in passing any new legislation. It’s unlikely that any progress will be evident until the Lame Duck Session. Most Congresses over the last decade have seen similar bills introduced but never passed and often killed before any vote.

The proposed legislation is casting a cloud of negative credibility over the forensics discipline in general, despite the FBI lab having updated and upgraded many of its forensic protocols. For example, the continuing development of DNA has mandated that no hair tests can be considered authoritative unless they are carried out with DNA. And the presence of DNA has demolished much of the junk science mythology that surrounded forensics for years.

The Bill’s sponsors hope that the collaboration of a number of non-DOB/FBI organizations will help boost the review’s credibility. Working with the DOJ /FBI will be "The National academy of Sciences, The Washington Post, the Innocence Project and the National Association of Criminal Defense Lawyers, among others. All have all called for strengthened forensic science and standards."

This artilcle originally appeared on the pages on Prism Magazine 

Tuesday, July 17, 2012

Penn State / Louis Freeh (Part III)

By William Fisher

Last week, this reporter did a story in this blog about the scandal that arose in the mid-1990s at the FBI criminal laboratory when it was revealed that results of forensic tests on as many as 10,000 cases had been falsified or otherwise presented to juries in ways that were scientifically unfounded and virtually guaranteed to produce guilty verdicts.

Until last Friday, that is.

That was the day the Washington Post announced that the DOJ would now perform analyses of an undetermined number of the cases that were tried during this period and resulted in guilty verdicts. Those convicted are scattered throughout prisons all of the US. Some have completed their sentences and have been released.

And today, Prism learned that when Freeh was running the task force investigating sloppy forensic testing he was encouraging FBI personnel to do exactly the opposite of what he did while investigating the Penn State pedophile scandal.
“He did everything in his power to cover them up,” referring to the many mistakes made by FBI forensic specialists in their analyses, particularly their analyses of hair. The protocol used in the analysis was found to be seriously flawed and unprofessionally applied. The outcome was that many were convicted and sentenced to long imprisonments on the strength of unreliable testing.

These remarks came from C. Fred Whitehurst, the former FBI Special Agent, the whistleblower whose revelations created a firestorm of criticism of the FBI lab which, until then, had been regarded as the gold standard of forensic analysis.
Whitehurst charged that, “In light of the most recent revelations about FBI lab failures requiring 10,000 more cases to be reviewed we should read of this pot calling the pan black.”

In a report released this morning, former FBI Director Louis Freeh writes that "the most powerful men at Penn State failed to take any steps for 14 years to protect the children who [former Penn State assistant football coach Jerry] Sandusky victimized. Messrs. Spanier, Schultz, Paterno and Curley never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky’s victims until after Sandusky’s arrest."

But Whitehurst says that “While I was reporting issues at the FBI crime lab, FBI Director Louis Freeh was doing every thing he could to shut me down including coming at me with proposed criminal charges, referrals for fitness for duty (psych evals), destroying my career, moving me around the lab like a rag doll, ruining my wife's career. This man has no conscience and he is accusing Penn State managers of not taking any steps. He ought to be ashamed. Before the lab scandal is over you will find that Freeh was right in the middle of it. He did EXACTLY what the Penn State folks did.”

The task force remained operational for years, but is generally thought to have done virtually nothing to identify or alleviate the conditions of thousands sent to prison on the basis of faulty forensics.

Until last Friday, that is.

That was the day the Washington Post announced that the DOJ would now perform analyses of an undetermined number of the cases that were tried during this period and resulted in guilty verdicts. Those convicted are scattered throughout prisons all of the US. Some have completed their sentences and have been released.

And today, Prism learned that when Freeh was running the task force investigating sloppy forensic testing he was encouraging FBI personnel to do exactly the opposite of what he did while investigating the Penn State pedophile scandal.

“He did everything in his power to cover them up,” referring to the many mistakes made by FBI forensic specialists in their analyses, particularly their analyses of hair. The protocol used in the analysis was found to be seriously flawed and unprofessionally applied. The outcome was that many were convicted and sentenced to long imprisonments on the strength of unreliable testing.

These remarks came from C. Fred Whitehurst, the former FBI Special Agent, the whistleblower whose revelations created a firestorm of criticism of the FBI lab which, until then, had been regarded as the gold standard of forensic analysis.

Whitehurst charged that, “In light of the most recent revelations about FBI lab failures requiring 10,000 more cases to be reviewed we should read of this pot calling the pan black.”

In a report released this morning, former FBI Director Louis Freeh writes that "the most powerful men at Penn State failed to take any steps for 14 years to protect the children who [former Penn State assistant football coach Jerry] Sandusky victimized. Messrs. Spanier, Schultz, Paterno and Curley never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky’s victims until after Sandusky’s arrest."

But Whitehurst says that “While I was reporting issues at the FBI crime lab, FBI Director Louis Freeh was doing every thing he could to shut me down including coming at me with proposed criminal charges, referrals for fitness for duty (psych evals), destroying my career, moving me around the lab like a rag doll, ruining my wife's career. This man has no conscience and he is accusing Penn State managers of not taking any steps. He ought to be ashamed. Before the lab scandal is over you will find that Freeh was right in the middle of it. He did EXACTLY what the Penn State folks did.”

The task force remained operational for years, but is generally thought to have done virtually nothing to identify or alleviate the conditions of thousands sent to prison on the basis of faulty forensics.

The article above appeared on the pages of Prism Magazine

Penn State / Louis Freeh (Continued)

By William Fisher

When former FBI Director Louis Freeh was running the task force investigating sloppy forensic testing by the FBI lab some 20 years ago and mistakenly sending thousands to prison, Freeh was encouraging FBI personnel to do exactly the opposite of what he did while investigating the Penn State pedophile scandal.

“He did everything in his power to cover them up,” referring to the many mistakes made by FBI forensic specialists in their analyses, particularly their analyses of hair. The protocol used in the analysis was found to be seriously flawed and unprofessionally applied. The outcome was that many were convicted and sentenced to long imprisonments on the strength of unreliable testing.

These remarks came from C. Fred Whitehurst, the former FBI Special Agent, the whistleblower whose revelations created a firestorm of criticism of the FBI lab which, until then, had been regarded as the gold standard of forensic analysis.

Whitehurst charged that, “In light of the most recent revelations about FBI lab failures requiring 10,000 more cases to be reviewed we should read of this pot calling the pan black.”

In a report released this morning, former FBI Director Louis Freeh writes that "the most powerful men at Penn State failed to take any steps for 14 years to protect the children who [former Penn State assistant football coach Jerry] Sandusky victimized. Messrs. Spanier, Schultz, Paterno and Curley never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky’s victims until after Sandusky’s arrest."

But Whitehurst says that “While I was reporting issues at the FBI crime lab, FBI Director Louis Freeh was doing every thing he could to shut me down including coming at me with proposed criminal charges, referrals for fitness for duty (psych evals), destroying my career, moving me around the lab like a rag doll, ruining my wife's career. This man has no conscience and he is accusing Penn State managers of not taking any steps. He ought to be ashamed. Before the lab scandal is over you will find that Freeh was right in the middle of it. He did EXACTLY what the Penn State folks did.”

The task force remained operational for years, but is generally thought to have done virtually nothing to identify or alleviate the conditions of thousands sent to prison on the basis of faulty forensics.
Prosecutors were notified by the FBI, but judges and defense counsel were not.

The article above appeared in the pages of Prism Magazine.


This essay on Capitalism was written by Prof. Lawrence Davidson, who teaches history at West Chester University.

Pope John Paul II once remarked that "pervading nationalism imposes its dominion on man today in many different forms and with an aggressiveness that spares no one." Whatever else you might think of this Pontiff, he makes a good point here–and one applicable to the U.S.A. American politicians never tire of telling us that ours is the greatest nation on earth and, for the world’s sake, we must aggressively (often by war) expand our freedoms, as well as our general culture, to the ends of the earth. Actually, this is a message that has been repeated for two hundred years and "its dominion" here in the "land of the free" is manifest. For many citizens, this assumption is one of the primary reasons we invaded Iraq, are hanging on in Afghanistan, and swear eternal loyalty to the Israelis. It is probably the cas e that American political and civic leaders invoke God and national manifest destiny more than those of any other nationality.


This is the world’s prevalent economic system. It is based on private ownership of the means of production and the creation of goods and services for profit. Wage labor is an important element on the cost side of the capitalist ledger. So are things like safe working conditions and worker benefits. The capitalist impulse is to minimize costs in order to maximize profit. Left to themselves, capitalists will pay workers (white collar or otherwise) the lowest possible wages and deny or minimize other benefits. They will ignore worker safety and deny any responsibility for worker health. The only reason these important aspects of the work place prevail is because of the pressure put upon the capitalist system by unions on the one hand, and government regulatory agencies on the other. If you want to maximize the probability of economic breakdown, just destroy all effective government regulation of the economy and outlaw uni ons.

Part II - Ideologies at odds 

Nationalism and capitalism are quite different ideologies, yet somehow Americans have conflated them. Take a list of what are considered the best things

about Capitalism: equality, achievement, freedom, growth and even happiness, and then compare them to a list of things considered the best about America: equality, opportunity for personal growth, freedom, a longer and fuller life. What do you know! They’re almost the same. This is odd and not a little illogical. Why so? Well, consider the fact that these ideologies operate in opposition one to another. And do so right out in the open. 

Here is a good example. On 11 July 2012, Fred Grimm, a columnist for the Miami Herald wrote a piece entitled "This column was made in the U.S.A." In it he notes that "last year the Wall Street Journal surveyed employment data from a number of the nation’s heftier corporations...and found that while they were cutting their domestic workforces by 2.9 million over a decade, they had hired 2.4 million people overseas." What sort of jobs are being exported by American corporate executives with, one assumes, the approval of their largely American stockholders? It turns out that they are not just your mundane factory floor jobs. They also include the work of: accountants, radiologists, architects, mortgage banking officers, computer technicians, and journalists (outsourcing the writing of local news st ories to underpaid reporters in places like the Philippine).

As the Wall Street Journal noted, this has been going on for a while now. Back in a 12 January 2004 edition of the Harvard Business School’s online publication, Working Knowledge, James Heskett told us that "arguments based on accepted [those accepting are not named] macroeconomic theory generally come down in support of the free exportation of jobs." But then Heskett quoted Brad Leach’s observation that "the real question is how to deal with the disproportionality of this impact: the broad, shallow, positive impact on product prices versus the narrow [sic], deep, negative impact on individuals."
In other words, American capitalism has been sticking it to American nationalism, at least to the extent of destroying a minimum of 2.9 million jobs over the past decade. Is this an example of capitalism promoting achievement, or growth, or happiness? Certainly not for those 2.9 million American ex-employees. So just how could American corporations, the executives and stock holders of which are, one assumes, loyal and patriotic Americans, do such a thing?
Part III - Capitalism Wins

Well, it would seem that nationalism has met its match. It has been overwhelmed by that which lies at the heart of capitalism: profit. Thus, consider a hypothetical American corporation A which makes socks in town X and has done so for a hundred years. At some point corporation A finds itself confronted with competition from cheaper socks made abroad and allowed into the U.S. by the millions of pairs because of laws placed on the books by free-market American Senators and Congresspersons. These foreign socks are being willingly purchased, instead of A’s more expensive domestic brand, by red blooded American consumers. So the executives of corporation A face a serious problem. It does not take them long to figure out that if they move out of town X, where the labor costs are relatively high, and relocate to some foreign country with no unions or government regulations, their labor costs will go down and their competitiveness and profitability will go up. But to do so wi ll destroy the economic basis of town X and the lives of its patriotic citizens who have loyally served corporation A for generations. So what do you do? Well, just ask the residents of all the defunct textile towns on the U.S. east coast from New England to the Carolinas.
Very few entrepreneurs or their customers are going to admit that such issues as cost, profit and price are more important than every one of those things listed as the best of capitalism and nationalism. No, they will just ignore the distinctly second place status of equality, freedom, doing your best, growth and happiness, etc., and they will pretend that the economic destruction of workers’ lives is an unavoidable consequence of commonsense business. Blame it on the natural laws of macroeconomics if you must. When the time comes for Mexican or Chinese or Indian workers to organize and achieve regulation of their industries so as to obtain decent wages and benefits, their lives in turn will be ruined as their employers run away to other places with lower labor costs, fewer required benefits and lower corporate taxes. For when it comes to the so-called commonsense demands of business, profits are more important than life itself (though not the financial well-being of th e investors).  

Part IV - Coping Mechanisms

I think that a growing number of Americans, witnessing the long running exportation of their livelihoods, do sense that the ground is moving under their feet. A 19 November 2011 New York Times op-ed by Charles Blow entitled "Decline of American Exceptionalism" reports that a Pew Research Center poll found that just 49% of Americans agreed with the statement "our people are not perfect but our culture is superior to others." That was down from 60% in the year 2002.

It is hard to see your culture as superior when so many jobs are being shipped abroad. Yet, if we can extrapolate out from the Pew poll, nearly half the nation still seems to manage it. How do they do it? Here are some suggestions:

1. Displacing a sense of powerlessness. Whether you are the victim or it is your neighbor, one just doesn’t know what to do about the situation. But it helps to believe that, even though jobless, you live in a great country, the power and traditions of which assure that you are better off than some worker in an Indonesian sweatshop turning out upscale Nikes. Holding on to that thought, many of the displaced buck up and start looking for other, usually less lucrative, work. Some of them may also take to beating up their kids or spouses when frustrations of the job search run high.

2. Dealing with cognitive dissonance. One has two contradictory concepts in one’s head at once (the U.S. is the greatest show on earth vs. too many of our jobs are being exported, contributing to the fact that a lot of us are getting poorer) and it is uncomfortable. So one naturally tries to reconcile the problem. For instance, you can tell yourself that the dichotomy is temporary and will disappear after a period of economic adjustment. Or, this is a great opportunity to get retrained for a position better than the one you just lost (ignoring the fact that the effectiveness of retraining programs is now being called into question).

3. The phenomenon of volunteering. For those who have lost their jobs but retain enough of a pension or savings to live on (usually an older crowd approaching retirement age) they can take solace in the world of volunteers. Actually, this is a pattern of work which allows a lot of non-profit, and some for-profit businesses as well, to get free labor. So the worker ends up doing for free what he or she should rightly be paid for–particularly in an avidly capitalist society like ours. It is a cockeyed sort of situation, but it does allow many older, displaced workers, to salvage some self-esteem even while they are exploited.

Part V - Conclusion

Most often our lives are too narrowly focused to allow us to understand the larger economic and political forces impacting us. We know our local area, we know the work we do (or did), and we know what those in leadership positions tell us. But all of this knowledge turns out to be inadequate when we are hit by debilitating social change. Then, most of us feel helpless and passively resign ourselves to what we consider fate, or perhaps God’s will.  

We are trained from childhood to behave like this. Remember temper tantrums? When our children throw them they soon learn that it doesn’t work. As adults we seem to have carried over the lesson. Relatively small numbers of us do occasionally loudly protest our situation, but with rare exceptions what do we learn? It doesn’t work. Perhaps we should try harder.

The ideals of capitalism, so ardently believed in, turn out to be false except for (as the current saying goes) the fortunate 1%. And those of nationalism? They too are drilled into our heads from childhood. But, alas, they cannot substitute for one’s supper.

Corporate Social What? Redux.

By Guy Gravenson

My cousin Guy, who lives in Mexico, decided to get into our little debating gig about whether anything good is likely to come from trying to teach corporate responsibility to some of the most irresponsible executives on earth. Here’s his take:

What is missing in all this back and forth, Bill, is the question of education, K-12. Educating the young. You suddenly don't come to a new set of ethics or morals as a grown person. You learn that in your formative years. And if you haven't learned it by high school, you get some standin to take your test or a crib sheet or hidden cell phone to slide you the answers. Corruption starts as soon as the teacher's back is turned.

A solution? Leave K-6 pretty much as it is now, a time to learn basic skills, to socialize and get into sports, and keep the brats out of the house for half a day for the parents to recover. At middle-school time, give all kids a FREE tablet (Kindle or iPad, whatever).

The tablet has no phone, no internet, so social networking sites. Just lessons, a library to get the answers -- and a connection to an adult mentor from the school. Kids work on their own or with peers to complete the lessons, whether programmed learning, multiple choice or composition. This is basic middle school stuff ... English, Math, Social Studies, Science, Civics (ethic lessons here), Second language...etc. Tests are taken back at the school, supervised, serious. If you fail a course you have to repeat it over the summer to graduate middle school. Then you hand back your tablet in exchange for a cap and gown.

Graduates go on to virtual High School. There can be a real high school in the neighborhood, of course, but students need only to check in to meet with teachers one-to-one and to do group assignments, social stuff. There are no class hours, except appointment times. The High School becomes a study hall. Again, all lessons are on individual FREE tablets, but these are not interchangable. They have a fingerprint match entry and other safeguards against theft/plagiarism. You carry it with you for 4 years. How fast you get through HS is up to you. You work at your own speed ... you take pop quizzes for your own edification. You just have to pass Government Regent tests -- standardized national tests (not State tests) on your climb out of high school. You have to pass 5 core subjects, and 5 elective subjects in each of those 4 years. Core manditory subjects: English composition, Math (algebra, geometry, trig,) Science (biology, chemistry, physics) Second Language, and American History. 5 elective subjects can be anything from logic to computer literacy, to theatre, to basic business administration, -- or anything teachable that interests the young person. So you need 40 credits to graduate High School -- and an optional 10 additional points in a particular field of interest or out-of-school volunteer/intern work that will go a long way to get you into college. After you pass your 40 credits, you have to take a day's worth of tests on everything you've learned (a comprehensive, like an S.A.T.) and an interview before a body of educators who will try to give you insight on where they think you should go next. Even help exceptional students to get to the college of their choice.

Of course, you can drop out whenever you want -- and clean off tables at Wendy's.

Saturday, July 14, 2012

Corporate Social What?

By William Fisher

The misconduct of the financial industry no longer surprises most Americans. Only about one in five has much trust in banks, according to Gallup polls, about half the level in 2007. And it’s not just banks that are frowned upon. Trust in big business overall is declining. Sixty-two percent of Americans believe corruption is widespread across corporate America. According to Transparency International, an anticorruption watchdog, nearly three in four Americans believe that corruption has increased over the last three years. (New York Times, July 12, 2012)
A good friend of mine is trying to teach corporate social responsibility on the heels of Libor and so many, many other shameful deceptions – or worse . That must be like flying into the eye of the hurricane on a mosquito. The perfect storm caused not only by banking and financial interests, but also by manufacturers, service companies, just about everyone whose mission is the turn a profit.

What in the world could you be teaching them? Maybe your focus is on what they could do to become socially responsible that they clearly are not doing now?

In all honesty, I would be hard put to name a single company I felt was and had been acting in a socially responsible manner. In fact, I’d do much better with the inverse proposition. No shortage of villains out there!
Back in the 70s and 80s I used to lecture and write a lot about CSR. Back in the those days, we were able to point to at least a few companies that we thought were acting responsibly – Cummins Engine, Caterpillar, General Electric, and a few others.
Huge companies couldn’t slow down to catch their breath and implement real programs; it was liberal lipservice. Smaller companies just struggled to stay afloat. And most of them didn’t.

I daresay we are now experiencing a repeat of that situation – with the added disadvantage that the people know. Thanks to the web, 24-hour news cycles, etc. companies acting irresponsibility have no place to hide.
The usual sponsorships of social services, educational, athletic, and artistic programs looked to be tinier than usual in relation to what needed to be done. Most of these are good programs, well thought-out. But they are implemented largely in isolation, with little coordination among donors and sponsors.

And as one after another after another of those donors is exposed as corner-cutting, smarmy-talking prevaricators caught with both hands in the cookie jar, so the American public loses what little faith it may once have had in the indestructible pillars of American capitalism.

What to do? Nothing? Not acceptable!

So I found myself thinking the most simplistic, eighth-grade solution. And knowing that my economist friends would be all over me in a nano-second.

So, being a rabid risk-taker, I posited the following:

Ten of millions of people are out of work.

Big multinational companies and financial institutions are stuffed with cash they borrowed at zero interest from the Fed.
They are not lending that money; they are sitting on it until demand rises for their products and services.

The longer they sit on it, the more the banks love them.

But suppose President Obama did something really off the wall?

Suppose he sat down with the shareholders of the Fortune 500 and tried to persuade them each, for a period of time, to take a 50% haircut on the profits they’re now making on the stocks and bonds of these dinosaurs. Corporations and banks would put their cash to work by hiring unemployed people – starting with those fired or furloughed when the economy tanked. The government would subsidize any losses these investors would incur.
And here comes the big IF. The government would need to be trusted as the rescuer of last resort.

If, by some miracle of alchemy, charisma, and pragmatism, the FatCats agreed, a lot of folks would have jobs again – not makework, not entry-level no-income internships, but real jobs to put real meals on the table and be able to afford to pay real mortgages, and jobs that opened up the possibility of the industrial and financial innovation that seems to have gotten lost in the past decade.

Now, dear readers, tell me the many reasons this won’t work!

First to weigh in was Chip Pitts, who happens to be the friend who’s lecturing on CSR at Oxford this summer. Here’s his take:

“I think that something like this could be part of the solution, a la the New Deal, but you’re right that the economists would object, and likely on grounds that those jobs are (“the market has spoken”) no longer needed, by definition, since they’re not there and (from the companies’ standpoint and the economy’s standpoint the economy is still working pretty well for the elites). Thus, there is a legitimate concern that this could result in ‘makework’.”

He continued: “Some of that would be OK, but it would be better if we found work for people in new jobs that could stand on their own in this increasingly competitive global environment. It would thus seem to me to be more a priority to think about how to rejigger and restart the economy using methods calculated to create new technologies and jobs that are definitely needed for the sectors likely to be most in demand in the future which also have social and environmental purpose.”

He added, “CSR and rights-based businesses can spur some of that by creating new products, services, and business models, like GE’s Ecomagination and Healthmagination, Unilever’s Shakti program, Grameen Danone’s joint venture, etc. But we also need lots of other old and new ideas, including continuing education, job training, starting entirely new social enterprises and small business – all which might be better, more sustainable and resilient investments and approaches.”

I’m sorry to be such a sourpuss, but I can’t resist pointing out that all these proposed initiatives are spoken in the future tense. Maybe they’re going to happen someday, but they haven’t happened yet. Yet now is when they are most needed. What have we been doing since 2008 and well before?

Well, it took a bone fide economist to shake me from my torpor. He came in the person of Dr. Jack N. Behrman, Associate Dean Emeritus at the University of North Carolina Business School. In his usual characteristic plain-speaking language, this non-academic academic delivered this IED:

“Now, who is going to do what about it -- what with the big financiers corrupting Congress and the Supreme Court? They are interested in only one thing -- jimmying the election and then the U.S. economy so they control it for their own selfish reasons. No sense of ‘noblesse oblige’--nor social responsibility, and B-school faculty have come to their senses too late, having mushed the brains of their students with ‘profit-maximization’ goals.”

A somewhat more hopeful note was struck by another old friend reader, Ludwig Rudel, who ran a successful property business after serving as one of the first American development specialists ever deployed to South Asia.

Lu asks:

“Who possibly can be against enhancing corporate social responsibility? It is asking others to behave better! No cost to me! Next you will try to reform or eliminate prostitution. Good Luck.”

“Me ... I prefer incentives. It is generally thought that the unemployment problem will not go away until the housing sector is stabilized. I have been waiting four years for our President to do something ‘off the wall to solve that.”

“How about this? FNMA will buy any and all of a bank's mortgages, either performing or non-performing, for homes still occupied by mortgagees for 80% of the outstanding principal, excluding penalties and fees, (no appraisal required) if the bank can prove they actually own the mortgage. FNMA can then offer to rewrite the house owner's mortgage paper at that (80%) value, for the first 5 years at an APR of 2%, the second 5 years at 4% and the last 20 years at 6% (since FNMA can obtain short term funds at virtually 0%). Then, for those mortgagees that such terms still can't be made to work, FNMA will handle foreclosure at its own cost.
“Such mortgages would be very affordable and attractive to owners. The banks would get out from under. It costs them more than 20% to foreclose. The cost to the taxpayer would be minimal.”

“Maybe it would be possible to persuade the banks that they will get brownie points on their social responsibility ledger for doing this.”

OK, but at this rate accumulating enough Brownie points is going to take a while. Maybe we should try Girl Scout Cookies?
Then comes the coup de grace. Artist Tony Benn, my favorite Marxist didact, blind-sides me with this:

“Without wanting to sound totally defeatist but most likely post-Marxist. Capital has and will always be amoral. Teaching it morality will always be sinking water into the desert of morality. The point of the State whichever one we can elect coherently and cohesively is to ameliorate the worst excesses of Capital. Until we all wake up to that awful but sobering realization then expecting a CEO to change the mindset of two centuries that started with the French revolution we are just dealing with the chimera and the spectacular nature of Capital.”

He adds: “And yes, this is the post-Marxist bit, until the contradictions of Capital are revealed or better still betrayed to itself not much is likely to happen. When the generals stop obeying orders of the ruling classes then the image cracks. Vis, the revolutions such as they are in the North Africa crescent. The Syrian general class jumping ship...pip pip!

If the ancient Greek philosopher Diogenes were to go out with his lantern in search of an honest many today, a survey of Wall Street executives on workplace conduct suggests he might have to look elsewhere.

A quarter of Wall Street executives see wrongdoing as a key to success, according to a survey by whistleblower law firm Labaton Sucharow released on Tuesday.

In a survey of 500 senior executives in the United States and the UK, 26 percent of respondents said they had observed or had firsthand knowledge of wrongdoing in the workplace, while 24 percent said they believed financial services professionals may need to engage in unethical or illegal conduct to be successful.

Sixteen percent of respondents said they would commit insider trading if they could get away with it, according to Labaton Sucharow. And 30 percent said their compensation plans created pressure to compromise ethical standards or violate the law.

Thursday, July 12, 2012

A Holocaust of FBI Law Enforcement Practices Comes to Light

By William Fisher

Back in April, this reporter did a story about the scandal that arose in the mid-1990s at the FBI criminal laboratory when it was revealed that results of forensic tests on as many as 10,000 cases had been falsified or otherwise presented to juries in ways that were scientifically unfounded and virtually guaranteed to produce guilty verdicts.

The head of the FBI and the Attorney General of the US acknowledged at the time that serious mistakes had been made. But no one ever told the defense attorneys or the defendants.

The DOJ brass formed a Task Force to investigate. They concentrated on the work of a senior forensics analyst, Michael Malone, who was dismissed. That so-called investigation went on for years. In silence.

Until yesterday, that is.

Yesterday was the day the Washington Post announced that the DOJ would now perform analyses of an undetermined number of the cases that were tried during this period and resulted in guilty verdicts. Those convicted are scattered throughout prisons all of the US. Some have completed their sentences and have been released.

Prism talked today (7/11/12) with C. Fred Whitehurst, the former FBI agent who played the pivotal role in blowing the whistle on the FBI lab. He recalled his previous talk with Prism:

“It is exactly what we were talking about a few months ago. The right angle to this is huge. The FBI is agreeing to look at 10,000 cases when in fact the FBI taught local, state and federal crime lab personnel this analytical technique for decades. That means that in this nation alone there are virtually hundreds of thousands of cases in jeopardy where forensic hair analysis was conducted. We are seeing a holocaust of law enforcement come to light which has been taking place now for decades under the nose of an unsuspecting American nation,” Whitehurst told Prism.

He added: “What changed their minds was the innocence cases in DC that recently were established. And the Washington Post article from Spencer Hsu. What you would look for as a tell in cases is if hair was the only real significant evidence that tied defendants to crimes. Guys in the lab wanting to ‘solve’ the case and be heroes might have pushed the envelope and been the guy who did what no one else could do. I have no doubt there will be more exonerations.”

Mike German of the ACLU, a former FBI Special Agent, believes the DOJ/FBI decision was triggered by pressure over failing to notify defense lawyers or judges that the forensics information was being provided only to prosecutors.

“I think the answer to your ‘why’ question is the Washington Post investigative expose from a few months ago that revealed that the FBI/DOJ had not made a significant effort to find persons convicted based on the suspect FBI forensics, “ German told Prism.

In April, the Washington Post identified two men convicted largely on the testimony of FBI hair analysts who wrongly placed them at crime scenes. The Post wrote: “The government has moved to overturn the conviction of one of the men, who was convicted of a sexual assault. A judge has vacated the conviction of the other man, who was convicted of killing a taxi driver.”

Whitehurst told Prism the FBI would not be using its old, outdated methods to analyze hair samples. He explained: “The FBI quietly changed its protocol a few years ago so that now any hairs that it matches must be then analyzed with DNA analysis.”

He added: “Sadly, though, the FBI changed its protocol realizing that the previous was seriously flawed, convicted defendants were never notified in any way at all. As for the FBI teaching local, state and federal crime lab personnel, that is true. What does that say for all the convictions based on hair analysis conducted by local, state and federal crime labs across the US?”

The Post reported that the Justice Department is partnering with the Innocence Project, a private group, to provide an independent, third-party assessment of the government’s review. The advocacy group is dedicated to reforming the criminal justice system and to exonerating the wrongfully convicted through DNA testing.

The National Association of Criminal Defense Lawyers also will work with the government on the effort.
The Post quoted former Justice Department inspector general Michael R. Bromwich, who investigated the FBI lab in the 1990s and uncovered serious problems with some FBI lab analyses, called the review “an important and necessary response to the multiple documented cases in which flawed hair microscopy analysis and testimony have led to wrongful convictions.”

The Post quoted him as saying, “Working with the Innocence Project and the National Association of Criminal Defense Lawyers is a step in the right direction. Nothing can give back the many years those wrongfully convicted defendants spent in prison, but at this point all participants in the criminal justice system — prosecutors, defense lawyers, and the courts — need to make extraordinary efforts to ferret out as quickly as possible any similar cases.”

Some close to the DOJ told Prism that there could be a connection between the speed of the FBI lab announcement and Attorney General Eric Holder’s current difficulties with Republicans in
Congress over the “Fast and Furious” operation, for which Holder has been held in contempt of Congress.

The American Bar Association wrote today that, “According to the Post, hundreds of defendants are still in prison or on parole for crimes in which FBI hair and fiber experts may have wrongly identified them as suspects. And the review of hair evidence issues focused on just one FBI agent while ignoring other problems that may have led to false evidence matches,” the story says.

The ABA added, “Justice Department officials maintain they fulfilled their legal obligations by telling prosecutors of errors and they did not need to directly contact defendants.”

DNA tests this year in two Washington, D.C., cases virtually clear a man convicted of killing a taxi driver in 1978 and completely clear a man convicted of a 1981 sexual assault. Both prosecutions relied on evidence of hair matches. But the cases weren’t included in the crime lab review. The Post has a separate story on one of the defendants, Santae Tribble, who was arrested at 17 and served 28 years in prison after his conviction, the ABA reports, adding:

“The review came too late in another case, the Post investigation found. According to a prosecution memo, Benjamin Herbert Boyle would not have been eligible for the death penalty because of problems in the FBI lab work. He was executed in 1997, a year after the investigation of the lab began.”

Tuesday, July 10, 2012

Special Administrative Measures: One Step Closer to a Police State

 By William Fisher

In his most recent book, “With Liberty and Justice for Some,” Glenn Greenwald charges that the U.S. now has a two-tier justice system – one tier for ordinary defendants, another for those prominent enough to escape any form of accountability for the crimes they fomented.

As if this wasn’t reason enough for national concern, there is yet another bias being played out in our Article III Courts. Legal experts see this bias as emanating from the prosecutorial anxiety associated with the acquittal of a defendant in a terror-related trial.

The widely-popular writer for Salon.com says he expected a good deal of the fear triggered by the 9/11 attacks to have receded; instead, he says, it has grown more intense and irrational and more widely used than ever to obliterate some of the most fundamental values of constitutional law for defendants.

He is far from alone. A virtual posse of constitutional authorities have likewise concluded that we Americans have been terrified into shooting ourselves in the feet by dispensing with the very qualities that make us special.

Scott Horton, a well-respected lawyer who writes for Harper’s Online, says, “Especially after 9/11, prosecutors in what they assert are national-security cases have gained a decisive tactical advantage in court proceedings that makes a mockery of the pretense of a level playing field between prosecutors and defense counsel.”

He adds, “Prosecutors routinely flout their duties to disclose evidence that would assist the defense, and routinely make representations about the gravity of alleged threats which cannot be sustained in the courtroom and which turn out in the end to have been made on the basis of neither any evidence nor any reasonable analysis. There has been a tendency towards grandstanding that has effectively manipulated courts... and has led a good number of federal judges feeling they were deceived. But when the trial judges try to rectify this overreach, they find that conservative federal appeals court judges reverse them, demanding that they give deference to prosecutorial mumbojumbo.”

Summing up, he told Prism, “The ability of prosecutors to improperly influence trial judges is a question that sits right on the frontier of judicial independence. It would be going too far to say that American judges as a class are no longer independent, but on the other hand, particularly in national security cases, the deck has tilted decisively and improperly in favor of the prosecution.”

During the public controversy over the use of our Article III civilian court system to try terror-related defendants, the government’s legal experts were widely quoted as believing that civilian courts would provide much fairer trials for these defendants, while ensuring their conviction and imprisonment. The civilian court system was thought to be a mature institution, while Guantanamo’s Military Commissions were untried and, as one military defense attorney was told, the Military Commissions were intended to convict people.
Comparing outcomes in the two venues, there doesn’t seem to be very much qualitative difference.

One of those most infuriated by our publicity-heavy attempts to ramp up our “national security” anxieties is Dr. Jeanne Theoharis, a professor of political science at Brooklyn College. Dr. Theoharis was in the forefront of a substantial community grassroots effort to mount a robust defense for Syed Hashmi, US-born of Pakistani nationality.

Hashmi was a student of Theoharis at Brooklyn College. On the eve of his federal trial in 2009, he pled guilty to helping Al Qaeda. Hashmi, 30, was sentenced to 15 years in prison on one count of providing material support to a terrorist organization. Had he not pled, he would have faced a 70-year sentence.

The former Brooklyn College student was arrested in London in 2006. The government accused him of passing “gear” to Al Qaeda; the gear consisted of a suitcase containing rain ponchos and heavy socks.

After his arrest, he was held in twenty-three-hour-a-day solitary confinement for nearly three years. The government’s case rested on the testimony and actions of an old acquaintance of Hashmi’s who turned government informant after his own arrest.

Theoharis points to a number of specific liberties that were denied to Hashmi and other pre-trial defendants in terror-related cases. She notes with modesty that these are simply off the top of her head and attributes their application to the radical political views Hashmi embraced before he was arrested. Yet last time Prism looked this up, expressing such views was the most basic of our First Amendment freedoms.

Theoharis charges that people like Fahad Hashmi and Tarek Mehanna were targeted in part for their political speech and association, which formed part of the government's case against them. Also, she adds, in many of these cases with FBI informants, what informants are sent into mosques to listen for, initially, are people voicing opinions and ideas critical of the United States.

Tarek Mehanna is an American pharmacist serving a 17-and-a-half year prison sentence after having been convicted of conspiring to help Al Qaeda.

Following the Mehanna sentencing, the ACLU released a statement saying that the suppression of unpopular ideas is contrary to American values, and that the verdict undermines the First Amendment.

Theoharis points to the right of a defendant to see and examine the evidence against him/her. But in many of these cases, much of the evidence is classified under CIPA, the Classified Information Act, passed by Congress in 1980. CIPA presents guidelines for the use of classified information by both government and defendant in a legal case. But defendants don't get to review it.

Theoharis also sees a defendant’s right to counsel diminished in terror-related cases. She says that one of the side effects of CIPA is that lawyers often go through a CIA-level screening to be able to review the evidence but they are not allowed to share what they saw with their client. According to Theoharis, this drives a wedge into the attorney client relationship.

Punishment before conviction is one of Theoharis’s most serious concerns. Like her former student, many terror suspects spend years in pre-trial solitary confinement. This degrades their health and ability to participate in their own defense, she says.

Due process: Theoharis says that while there are ostensibly ways to challenge these conditions of confinement and the application of SAMs, almost no one succeeds in using these administrative processes to actually get their SAMs removed or conditions altered.

Right to a speedy trial: Because much of the evidence is classified in many of these cases, people are impelled to waive their speedy trial rights under the Eighth Amendment to give their counsel adequate time to review the evidence. One defendant, Sami Al Arian, has been largely locked up, in one type of facility or another, for more than nine years.
Confidentiality of attorney-client communications. Lawyers representing people accused of terror-related offenses have been notified that their working sessions with their clients are no longer confidential. This ruling was made because prison authorities feared that defendants were using their attorneys to deliver messages to their colleagues. But the ruling struck a body blow at one of the bedrock principles of legal representation. One result is that lawyers are becoming reluctant to take on the defense of terror suspects.
Numerous legal experts have commented that ordinary citizens who have been charged but not tried would be unlikely to be punished for speaking out, regardless of how radically -- because speech is protected by the Constitution. But where terrorism is involved, prosecutors and judges find themselves conflating free speech with overt action.

How has this erosion of liberties taken place? Is it government by the rule of law or the law of the Wild West? Or is it some informal ad hoc arrangement between prosecutors and jailers?

Amy Fettig, a senior counsel with the ACLU’s Prison Project, has studied the SAMs regimen and is familiar with both its content and its application by Federal authorities.

She told Prism:

“Less than two months after the September 11 terrorist attacks on the United States, the Department of Justice issued an interim rule that drastically expanded the scope of the Bureau of Prisons’ (BOP) powers under the special administrative measures (SAMs) promulgated in the mid-1990’s after the first bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma. The regulation became effective immediately without the usual opportunity for prior public comment.

“The original SAMs promulgated during the Clinton Administration allowed the government to impose special administrative measures on certain federal inmates, including solitary confinement, interception of mail, and restriction on telephone calls and visitors.

“Before imposing a SAM, the rule required a specific determination by the Attorney General that the measure was ‘reasonably necessary’ in order to deter future acts of violence or terrorism. The rule also limited the extent of a SAM by placing a 120-day time limit, renewable on reapplication in 120-day increments.

“In contrast, the SAMs re-promulgated after 9/11 are an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution.

“The current SAMs allow the Attorney General unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate confidentially with an attorney. In any case in which the Attorney General believes that there is ‘reasonable suspicion’ that a person in custody ‘may’ use communications with attorneys or their agents ‘to further or facilitate acts of terrorism,’ the Director of BOP ‘shall … provide appropriate procedures for the monitoring or review of communications between the inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege…’

“It is especially disturbing that the provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime.

“In addition to the broad nullification of the attorney-client privilege allowed under these BOP regulations, SAMs no longer have a 120-day time limit and the revised regulation also permit monitoring and measures that include extreme forms of social isolation, such as housing in segregation and limitations on visitation and other contact with the outside world, for one-year periods with indefinite renewal of additional one-year intervals.

“The revised BOP SAMs rules are a direct assault on the attorney-client privilege that flies in the face of our Constitution and the underlying principles of our legal system. Under the SAMs, a defendant and his counsel are confronted not just by the fear that the government is monitoring communications, but by the certain knowledge that it is doing so. Such a defendant is told that none of his communications with his attorney will be confidential – that all such communications, whether conducted in person, by mail, or by telephone, are subject to government monitoring. Under such conditions, the right to counsel as consistently defined by our courts, is essentially undermined.

“Additionally, the SAMs regulations may subject individuals, including individuals who are seriously mentally ill, to indefinitely renewable, long-term solitary confinement without any evaluation of their mental state or existing mental illness. Federal courts have consistently held that such isolation violates the Constitution when inflicted on the seriously mentally ill. This callous disregard for Constitutional protections in regulations promulgated by the U.S. Department of Justice sends a disturbing signal that automatic deference to assertions of national security is dangerously trumping our rule of law.”

Many prison experts believe SAMs, including solitary confinement, are both cruel and ineffective, and needlessly increase the anger of prisoners toward their captors.

But the Director of the Bureau of Prisons, Charles E. Samuels Jr., doesn’t see it that way.

At the very first Congressional hearing ever held on the subject of segregation, or solitary confinement under the SAMs, he explained that “SAMs are special conditions of confinement or limitation of privileges that are reasonably necessary to prevent disclosure of national security information or prevent acts of violence and/or terrorism…SAMs restrict access to mail, media, telephone, and/or visitors, depending upon the specific risk factors.”

Testifying that “this restricted form of housing applies to only a small number of inmates within the Bureau,” Samuels told the Senators that “the use of restricted housing, however limited, remains a critical management tool that helps us maintain safety, security, and effective reentry programming for the vast majority of federal inmates housed in general population.”

But that is not the issue here. The issue here is whether the justice system should be using these administrative tools to put a gag on prisoners who have every right to speak out.

The precise number of prisoners living under SAMs is difficult to know – the Bureau of Prisons will not comment. The Director of the Bureau also testified at the Senate last week that he didn’t know the exact number of mentally ill inmates locked up in the US prison system as well as the number of those living under SAMs.

The number under SAMs is thought to be about 50, with 30 of those charged with terror-related crimes. But if the Director of the Bureau of Prisons has the slightest interest in making this problem less disgraceful, he needs to begin with an accurate count.

And he needs to disclose it to the public.

Senator Durbin and the members of the Judiciary Committee hope to attract support for a full-blown review of SAMs and other administrative coercions, leading to regulations that achieve more with a lot less pain.