Monday, August 27, 2012

Domestic Terrorism American Style – An Analysis (27 August 2012) by Lawrence Davidson

This article is the work of Lawrence Davidson, Professor of History at West Chester University

Part I — Some Background
The Ku Klux Klan (the name derives from the Greek word Kuklos meaning circle with a modification of the word clan added), an American terrorist organization, was founded in Pulaski, Tennessee in 1865. It was organized by Southerners who refused to reconcile themselves to the defeat of the Confederacy in the Civil War, and its declared mission was to “maintain the supremacy of the white race in the United States.” To this end it adopted tactics in the southern states that would so terrify emancipated African Americans and their white allies, that they would not dare to vote, run for public office, or intermingle with whites except in “racially appropriate” ways.

Intimidation took many forms. Non-whites and their allies who sought to assert civil rights were threatened, assaulted and frequently murdered. If they were women they were subjected to assault and rape. The property of these people was destroyed, their homes and meeting places attacked with bombs or burned. Finally, a favorite tactic was lynching.

Lynching was/is murder carried out by a mob that collectively thinks it is protecting the community and/or its traditions. Between 1882 and 1930 the Klan and allied organizations lynched some 3,000 people, mostly black men. Often the accusation was that the black male victim had sought sexual relations with white women. It was very rare that those involved in these murders, which were carried out quite openly with little effort to hide identities, were arrested for their actions much less convicted and adequately punished. This, in turn, was possible because of a number of factors:

– First and foremost, the belief that African Americans, and subsequently all non-whites, were dangerous to “white civilization.” This belief was built into the cultural perceptions of the majority. With rare exceptions, a white person could not grow up in this environment without acquiring a knee-jerk prejudice against non-whites.

– As a result, local white populations, as well as local law enforcement, often sympathized with the Klan, sometimes feared it, or just did not care about what happened to the non-white population.

In the years following the Civil War, the activities of the Klan only subsided when the U.S. government allowed the Southern states to impose laws that prevented African Americans from voting and acquiesced in a harsh regime of segregation. When the Civil rights movement finally took place in the 1960s, the Klan reappeared and participated in the violent opposition to desegregation and racial equality. This abated only when the federal government started seriously enforcing its own civil rights laws.

Part II – Old Tactics and New Victims

While today the Ku Klux Klan as an organization is nearly (but not quite) gone, it would be a mistake to think that the Klan mentality is dead in the U.S. Quite the contrary. The nation’s deep seated history of racism has helped preserve an apparent permanent subset of Americans who grow up with prejudicial feelings against anyone they perceive as a threat to their version of the “American way of life.”

This background can help us understand the on-going attacks against American Muslims. Since 2010 there has been an increase in the number of attacks on American Muslims, their mosques and other property, as well as American minorities (such as Sikhs) who are regularly mistaken for Muslims. These attacks are not the work of a refurbished Ku Klux Klan but, nonetheless, have about them the same nature: fear of American Muslims as cultural subversives (for instance, the delusion that they seek to impose Sharia law in the United States); anonymous threats of violence (via telephone, internet, and also in the form of abusive graffiti); bomb, arson, and gun fire attacks on property; and finally assaults and murders. The Civil Rights Division of the U.S. Justice Department has investigated over 800 such incidents in the last eleven years. Eight such attacks occurred in the first half of the present month of August 2012, including the murder of six Sikhs in Milwaukee on August 5.

An important factor in all of this is the role of a number of campaigning politicians who go around proclaiming the threat that American Muslims supposedly represent to the country. For instance, just prior to a spate of arson attacks in the Chicago area, U.S. Representative Joe Walsh held town hall meetings in the area where he proclaimed, “One thing I am sure of is that there are people in this country–there is a radical strain of Islam in this country–it’s not just over there–trying to kill Americans every week.” His talk was filmed and posted on YouTube. Similar rhetoric has been heard from a dozen other politicians including Peter King, the Chairman of the House Homeland Security Committee and Michele Bachmann, who was among those running for GOP candidate for president.

Part III – What It Takes to Break a Bad Habit

This is what you get when you practice a culture that has evolved around racist views. And, you get it more or less in perpetuity. In the case of the United States, the nation spent from 1789 (counting from the establishment of the Constitution which legitimized slavery) to 1954 (the year the Supreme Court declared, in Brown v. Board of Education, mandatory segregation of public schools unconstitutional), or 165 years, building up an “American way of life,” which legitimized discrimination against non-whites. Subsequently, it has spent from 1957 (counting from the year that Brown v. Board of Education actually began to be enforced) to the present, or 55 years trying to undo that legacy. If it takes about as long to undo a nationwide bad habit as it did to establish it, we have a long road ahead of us.

What the years since 1957 have done is to legally enforce non-racist public behavior. This is certainly a necessary step which, if consistently applied, will eventually lead to an internalized change in the outlook and morality of most of the population. In this regard Barack Obama’s election as the first African American president in 2008 was a sure sign of progress. However, the virulent reaction to Obama by more than a few is another sign that, while 55 years is long enough to alter the public behavior of some people, it is not long enough to change the private attitudes of many. Thus, there are still those groups of citizens who are deeply racist. Today, under normal circumstances, they keep their feeling to themselves and their like-minded circle. However, when conditions allow, that racism emerges in a public way, often in hate speech but sometimes more brutally. These extremists are the modern day versions of yesterday’s klansmen and, given a chance, they will happily commit mayhem in the name of their cherished traditions. American Muslims are now their target.

Part IV – Another Example = Our Ally Israel

If you want to see another example of a society that has historically cultivated discriminatory outlooks and practices, one that American Zionists consider quite similar to the U.S., take a look at Israel. By the way, If there is any truth to the belief that Israel is “just like us,” it can only refer to the United States prior to 1957–prior to the introduction of civil rights laws.

Much like the American south of that pre-legal equality era, Israel is shaped by a culture of ethno/religious exclusiveness practiced amidst a larger out-group (in this case the Palestinian Arabs). This has led the Israeli Jews to teach successive generations that it is proper and necessary to discriminate against Palestinians. And, sure enough, over the years Israel has produced its own terrorist organizations that intimidate and attack Palestinian Arabs: the Irgun and Lehi during the years leading to the establishment of the state in 1948, Gush Emunim and Terror Against Terror in the 1970s and 1980s, and today’s “Price-Taggers” and West Bank settler vigilantes. Just like klansmen in the American south, these terrorists are rarely prosecuted and almost never adequately punished for their crimes because much of the Jewish population as well as the organs of the state sympathize with them. And, just like the American south, they operate in an environment conducive to an Israeli version of lynching.

That brings us to the Isreaeli style lynching that occurred on the night of August 17 in Jerusalem. Raised in an environment that purposely cultivates prejudice and hatred against Arabs, a mob of some fifty Israeli Jewish young people attacked four Palestinian male youths, almost killing one of them. The attack was unprovoked and apparently random, though the attackers “claimed they wanted to prevent them [the Arab boys] from speaking to Jewish girls.” “Hundreds” witnessed this event but did not interfere. The entire thing was predictable, and indeed inevitable. It is what you get when you practice a culture that has evolved around racist views.

Part V – Conclusion

There might be a human genetic inclination toward group solidarity, but its worst manifestations are not inevitable. You can feel solidarity with your family, your religious community, your ethnic group, your nation, etc. without hating others. The hating part is a learned attitude. And, as is often the case, fear will underlie the hatred.

Both American and Israeli bigots or terrorists have focused on Arabs and Muslims as a threatening out-group. Both the Americans and the Israelis who do so draw strength from a culture that has deep racist roots. In today’s U.S.A. many know that this is wrong and so there is a moral position from which to combat this behavior. Unfortunately, it is not possible to say the same thing about Israel.

In the United States the core need is consistent educational and legal pressure against racist behavior both in terms of individual and institutional behavior. When I say consistent I mean over multiple generations, for at least as many years as it took to create the nationwide bigotry in the first place. If we do not succeed in this endeavor then American Zionists will be proven correct. We in the U.S. will be just like the Israelis.


Poll Reveals Alarming Depth of Dislike of American Muslims

By William Fisher

Most Americans are aware of the negative attitudes our country has toward American Muslims and Arab-Americans. But what they may not be so aware of is the depth of the vitriol with which they attack these two groups and the utter ignorance they apply to make their vitriol even more incendiary.

At a press conference earlier this week, Dr. James Zogby – who is president of the Arab American Institute – presented the results of a poll of 2100 Americans who were asked about their views about various aspects of Arab-America and American Muslim life.

The quick takeaway from Zogby’s presentation is that Arab-Americans and American Muslims are not just disliked – they are detested. They are despised.

Substantial majorities of Americans in various demographic niches believe people in these two groups are disloyal to the United States, though hundreds of thousands have been in the US for generations. It is estimated that there are approximately five to eight million Muslims living in the U.S. now.

In 2000, 1.2 million people reported an Arab ancestry in the United States. In December 2003, the U.S. census bureau released data for the first time on the Arab population of the United States. The data is from the 2000 census. The census does not break down the figures by religion, but the Arab-American Institute estimates that about 77% of Arab-Americans are Christians (42% Catholic, 23% Orthodox, 12% Protestant) and 23% Muslim.

The toxic attitudes of American citizens toward their Muslim and Arab countrymen have triggered a rash of attacks and threats. Zogby ran through a litany:

Of the findings, Zogby said, “The numbers from our latest poll highlight that Park 51, the anti-Muslim and anti-Arab tone of the 2010 campaign season, anti-Sharia legislation, calls for Muslim loyalty oaths, and public attacks on American Muslims and Arab American public servants have taken a toll on American public opinion. Park 51 is to be the official name of the controversial community center located near the remains of the World Trade Center.
“Despite the fact that most Americans are unable to make the distinction between Arabs and Muslims, the vitriol that has been aimed at both communities is clearly swaying public opinion along age and party lines,” Zogby said.

Meaning that older people and Republicans have the most deep-seated enmity toward the two groups.

Other findings:

Arabs, Muslims, Arab Americans, and American Muslims have the lowest favorable/highest unfavorable ratings among the eight major religious groups covered.

Muslims are the only group with a net unfavorable rating.

There is a deep generational divide, which is reflected in a partisan divide. Younger Americans (18-25) rate Arabs and Muslims up to 17 points higher than the older generation. They also rate Arab Americans and American Muslims higher as well.

Younger Americans rate Catholics and the various Protestant denominations covered in the survey almost 20 points lower than do older Americans (65+). The younger group also rates Mormons 15 points lower. This is reflected in a deep partisan divide and even more so in a division between those who describe themselves as Obama or Romney voters.
For example, the ratings given to Arabs and Muslims by Obama and Romney voters are mirror reflections of each other. While Obama voters give Arabs a net 51%/29% favorable rating and Muslims a net 53%/29% rating; Romney voters give Arabs a 30%/50% net unfavorable rating and Muslims a 25%/57% unfavorable rating.

Democrats and Obama voters give no group a net negative rating. Republicans and Romney voters only give strong negative ratings to Arabs, Muslims, Arab Americans, and American Muslims.
There is also a racial divide in attitudes toward Arabs, Muslims, Arab Americans, and American Muslims.

Favorable attitudes toward Arabs, Muslims, Arab Americans, and American Muslims are significantly higher among African American, Hispanic, and Asian Americans.

Fifty-seven per cent of voters believe their ethnicity or religion would influence their decision-making of Arab Americans and American Muslims if they were appointed to important government posts.
Again there is a deep partisan divide on this question. By a two to one ratio, Democrats and Obama voters are confident that Arab Americans and American Muslims could do the job, but a strong majority of Republicans and Romney voters fear that the ethnicity or religion of members of these communities would influence their work.

Once again, age plays a significant role.

To make matters worse, the U.S. Government continues to perform its schizoid dance that confuses everyone involved. On the one hand, the government is reaching out to those it considers “good” Arab-Americans and “good” Muslims. It is praising these people whenever it can. On the other hand, it is sending agent provocateurs into mosques and Muslim neighborhoods to gather information on future terror plots. Muslim congregations are crying “entrapment.”

Zogby’s comment:
“In 2010, in the wake of the Park 51 controversy, AAI conducted a similar poll on views toward Arabs and Muslims. The data extracted from both polls indicates that anti-Arab and anti-Muslim political rhetoric has taken a toll on American public opinion, especially along age and party lines.”
How’s that for understatement?
The Arab-American and American Muslim communities suffered through similar attacks in the days and weeks immediately following the September 11, 2001 attacks. The government rounded up thousands of “Middle Eastern people” and jailed hundreds of them. Scores of violent incidents and threats against Arab-Americans and American Muslims were reported. Many took their complaints to court.

And now we are seeing a repeat performance.

For example, The Chicago office of the Council on American-Islamic Relations (CAIR) called for an FBI hate crime investigation of an acid bomb attack on a Muslim school in that state. It was the second such incident targeting an Illinois Muslim institution .
Arab immigrants and their community centers, mosques and businesses have been hit by Molotov cocktails, bullets and bricks. Buildings have been defaced with graffiti. Numerous bomb threats have occurred. In one incident a drunken 75-year-old man, screaming, “You’re destroying my country,” tried to run down a Pakistani woman in a Long Island parking lot.

Two air rifle shots were fired at the Muslim Education Center (MEC) mosque in Morton Grove, Ill.

The Civil Rights Division of the U.S. Department of Justice placed a priority on prosecuting bias crimes and incidents of discrimination against Muslims, Sikhs, and persons of Arab and South-Asian descent, as well as persons perceived to be members of these groups.

On July 4th, Joplin, Missouri's Islamic Center — the city's only mosque — suffered roof damage after an unidentified man set it on fire by tossing a burning object onto the building.

The following Monday, there was a second fire, but this time the damage was far more extensive. Fire officials described it as a "complete loss."

A man armed with a hammer was caught on video apparently destroying a sign at a mosque in Rhode Island.
At least seven people were killed and twenty injured as a gunman took over a Sikh temple in Oak Creek, Wisconsin. The number includes the gunman, who was killed by police. Officials are treating it as a "domestic terrorist-type incident." The attacker is believed to have confused Sikhs and Muslims.

CAIR called for increased police protection at houses of worship across the country following the Joplin fire and the deadly attack on the Sikh temple.

What this ugly bigotry conjures up are pages out of American history’s Book of Shame. For there is where we find our Pilgrim Fathers destroying the lives of the people they found there. There is where we find the sepsis of the slave-trade economy. There is where we find the Italians, the Irish and the Jewish immigrants from Eastern Europe at the turn of the 20th century. There is where we find 110,000 Japanese-Americans hauled off to camps in the middle of nowhere. And there is where we find the bloody swamp we know as Jim Crow.

Arabs and Muslims in America are going to have to fight hate and discrimination – many are doing so now. To be successful, they are going to need the proactive backing of the heavy hitters in our government – beginning with the President -- and in our business and financial communities over a substantial period of time. And these are not groups that embrace change unless there is absolutely no alternative. The more enlightened attitudes of the younger American generation offer some hope for healing.

While some observers have urged Mr. Obama to provide stronger and more consistent leadership on this issue, others are suggesting that now may be too soon; the wounds of 9/11 may be too fresh.

But time alone would not have given us the Civil Rights Act of 1965 or the Voting Rights Act of 1965.

And – let’s face it -- it wouldn’t have mattered a whit if a posse of American Muslims and Arab Americans had killed Osama bin Laden. Nobody would have believed it!

This article originally appeared in the pages of Prism Magazine

Sunday, August 26, 2012

America: How Exceptional?

By William Fisher

During this crazy campaign season, we’re never very far from hearing the words “American Exceptionalism.” We – candidates and others – persist in using this meaningless and hackneyed phrase despite what most of us now know about all the times in history when our America was not-so-exceptional.


Let me illustrate my point with a letter. You need to read this letter. You really do. It was written this summer by a former resident of Death Row in a Louisiana state prison. His name is John Thompson. Here are the key parts of what he wrote:
I was sentenced to death in 1984 for a crime I didn’t commit. I spent 14 years on death row and another four in prison before I was exonerated and freed. I came weeks from execution for something I knew I didn’t do.
The prosecutors at my trials hid evidence of my innocence in both a robbery case and a murder case that got me convicted and sentenced to death.
While I was on death row, I met other condemned men (and teenagers) including Ryan Matthews, Shareef Cousin, Dan Bright, Curtis Kyles, Albert Burrell and Michael Graham. All six of them were exonerated and freed, not killed by lethal injection.
We were condemned for over 60 years between us. And we were from all over the state: four of us from New Orleans, one from Jefferson Parish and two from Union Parish. All of us had lawyers to represent us at our trials. But you can bet none of us had an “O.J.”
After we were condemned, all of us were “lucky”enough to get lawyers from groups with the money to properly investigate our cases. Because they had the money and time to properly investigate, each of us was exonerated and freed.
My lawyers were from a law firm in Philadelphia who dedicated 16 years of their lives to proving my innocence. If they hadn’t, I’d be dead. No doubt about it.
Of course, if Louisiana had paid for us to have real defenses in the first place, we wouldn’t have been wrongly condemned to die, our families wouldn’t have suffered years of trauma, the families of the victims wouldn’t have suffered as long, the state would have saved money and the real perpetrators might have been more quickly caught.
John Thompson is now the director of a prison rights organization called “Resurrection After Exoneration” in New Orleans.

My attention was drawn to the past paragraph in Thompson’s letter, where he says, “… if Louisiana had paid for us to have real defenses in the first place, we wouldn’t have been wrongly condemned to die….”

He is referring to the “loser pays” principle that’s in effect in many countries, including Germany and the United Kingdom. Lawyers are of divided opinions on the issue, which is incredibly complicated and littered with examples of unintended consequences.

The nation’s lawyers are nowhere near addressing, much less resolving, resolving this problem. And, while some states have already implemented some version of the rule, it applies only to civil, not criminal, cases.

Compensation for unlawful imprisonment obligates some states to compensate the exonoree , some not. Today, 22 states, the District of Columbia, and the Federal Government, will make a cash award to those freed after doing unlawful jail time;  the rest have no such provision. In those, the outward-bound gift is something like $75.00 and a bus ticket. In other states, the award can be substantial – in the millions, depending on the length of incarceration.

And sometimes, that system itself goes wrong. One exonoree was awarded $14 million for spending a generation on death row. Within days, the state did a 180 and withdrew the award, giving the former prisoner nothing.

The quality of lawyering in defense cases often leaves just about everything to be desired. States are cutting back on funding for legal aid lawyers. Lawyers tell me, anecdotally, that public defenders seem to be getting both younger and older. Murder cases are being handled by lawyers who have never dealt with a capital crime before. Not infrequently, older lawyers have been known to sleep through substantial parts of trials, miss court dates, and fail to file documents – even last-minute motions -- on deadline.

Most of the court cases in the US take place in State (or lower) Courts, not in the Federal Justice System. That means that, as a country, we have a patchwork of different rules, regulations, procedures, and sentences.

While large law firms are keeping up the pace of their pro bono work, some are beginning to try to put distance between their firms and certain kinds of pro bono work – for example, defending Guantanamo Bay detainees before Military Commissions. Their reason is that the current Military Commission law represents a system that has never been tried and which has virtually no track record.

And then there was this from John Thompson’s letter: “The prosecutors at my trials hid evidence of my innocence.” For me, this is the most egregious part of Thompson’s letter.

Here’s what it means, according to USA TODAY:

The jurors who helped put Nino Lyons in jail for three years had every reason to think that he was a drug trafficker, and, until July, no reason to doubt that justice had been done. For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, even tried to hire him to kill two drug suppliers. But the federal prosecutors handling the case did not let the jury hear all the facts. Instead, the prosecutors covered up evidence that could have discredited many of Lyons' accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.
Prosecutors have immense power. And their abuse of that power is not just a once-in-a-while transgression. It happens all the time and usually goes unnoticed – how do you see something that’s not there?

Worse, as revealed by the current Innocence Project’s research into prosecutorial misconduct, County and State Bar Associations rarely ask prosecutors to explain what looks distinctly fishy to their fellow lawyers. And the reason is exactly that: Most of the time, it’s the fellow lawyer angle that shuts down the bar associations. It’s go along to get along.

In general, we’re only reminded about prosecutorial misconduct when it triggers a major news story. The most heartless one I know concerns the FBI laboratory, as it used to be. Twenty years ago, as many as 10,000 accused men and women were convicted on the strength of bogus forensic tests and were sentenced to prison terms. The Department of Justice attempted a wholesale cover up and gave correct information only to prosecutors, not defense attorneys.

Thanks to the Washington Post, the DOJ fessed up and promised to review every one of the convictions meted out on the basis of faux “evidence.”

Time – and insistent journalism – will help tell us whether the DOJ is making good on its promise.

As to other promises – cleaning up the forensics racket, for example – there are glimmers of hope. In addition to the DOJ’s investigation of the FBI’s faux “evidence,” proposed legislation has recently been introduced in both House and Senate.

Sen. John D. Rockefeller IV of the Senate Committee on Commerce, Science and Transportation, and Reps. Eddie Bernice Johnson, Donna Edwards and Daniel Lipinski of the House Committee on Science, Space and Technology have introduced bills mandating scientific review and standards for forensic sciences.

The bills are designed to address the wide ranging deficiencies in scientific validation and the lack of oversight of forensic sciences that were highlighted in a 2009 report by the National Academy of Sciences.

Peter Neufeld, Co-Director of the Innocence Project, said, “Today, 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 standards. 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.
These bills “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.”

Wednesday, August 22, 2012

Can We All Breathe a Sigh of Relief?

By William Fisher

Maybe we all ought to be overcome with joy to learn that the threat from those all-American homegrown terrorists is no more.
One less thing to worry about.

That might well have been your first thought upon reading that the Department of Homeland Security has reduced its monitoring of the violent right-wing of American terrorism. It has folded up the Unit that used to do this work and reduced its head count from six to one analyst.

Daryl Johnson, who headed that DHS unit, was the principal author of the April 7, 2009, report "Right-wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment."

The report was intended only for distribution to law enforcement agencies. But after it was leaked to the media, a firestorm erupted among conservative commentators who wrongly claimed it equated conservatives with terrorists.
No, not terrorists of the Al Qaeda stripe. Rather, those rosy- cheeked patriots known as white supremacists, skinheads, militias, neo-Nazis, and so-called Sovereign Citizens who may well resemble Timothy McVeigh. How quickly we forget!

Spencer Ackerman of Wired reported that, within days, Secretary Napolitano had disowned Johnson’s report. Today, the department no longer produces its own analytical reports on this subject. Presumably, this job has been handed off to the FBI, although the DHS would neither confirm nor deny that. It had the same reaction when asked if the Unit once headed by Daryl Johnson had been gutted.

What we do know is that our all-American miscreants have kept themselves busy. According to the Southern Poverty Law Center, since Johnson’s report was leaked, in 2009, DHS has not released a single report of its own on this topic. Nothing dealing with …domestic extremism – whether it’s anti-abortion extremists, white supremacists, 'sovereign citizens,' eco-terrorists, the whole gamut."

The SPLC catalogs the crimes committed since then: “The murder of Dr. George Tiller by an anti-abortion zealot in May 2009; the shooting of a guard at the U.S. Holocaust Memorial Museum by a neo-Nazi in June 2009; the March 2010 arrest of Michigan militia members for plotting to attack police officers and wage war against the government; the murder of two Arkansas police officers by "sovereign citizen" extremists in May 2010; the arrest of a neo-Nazi in the January attempted bombing of a Martin Luther King Day parade in Spokane, Wash.; the January arrest of another neo-Nazi who was heading to the Arizona-Mexico border and later charged with possessing explosive devices packed with ball bearings; the arrests in March of members of an Alaska militia for conspiring to murder law enforcement officers and a judge; the murderous attack on the Sikhs; and the massacre of the Batman movie audience.

And Mark Potok of the SPLC said, "The fact is, the DHS report accurately predicted the sort of radical-right terrorism that we’re now seeing across the country."

He added, It’s troubling that the leadership of the Department of Homeland Security would bow to unfounded criticism from the political right."

In his SPLC interview, Johnson said, "What worries me is the fact that our country is under attack from within, from our own radical citizenry. My greatest fear is that domestic extremists in this country will somehow become emboldened to the point of carrying out a mass-casualty attack, because they perceive that no one is being vigilant about the threat from within. That is what keeps me up at night."

It’s what keeps us up at night too. Prism calls on Secretary Napolitano to share her thinking with the American people. The thing is: We know how difficult it is to apprehend terrorists of any kind – whether of the all-American or Al-Qaeda variety. Much of their activity is in the form of speech – protected by the First Amendment to the US Constitution.

But doesn’t this give us more, not less, reason to keep a watchful eye on these figures while they are terrorists in speech only? If anyone should know when they cross that line from speech to action, it’s the Department of Homeland Security.

Secretary Napolitano needs to reassure us that we’re all on the same page.

Monday, August 20, 2012

The Rise and Fall (and Rise?) of Daryl Johnson

By William Fisher

In 2009, Daryl Johnson was at the apex of a 15-year career as an expert on domestic terrorist groups — particularly white supremacists and neo-Nazis — as a senior government counterterrorism analyst, the last six of them at the Department of Homeland Security.

As the DHS “go-to” guy for what the DHS called non-Muslim counter-terrorism, Johnson’s six-person unit was about to release a comprehensive report on domestic terrorist groups as a government counterterrorism analyst.

But in 2009, according to WIRED Magazine’s Spencer Ackerman, Johnson’s career took an unexpected nosedive. That’s when he wrote an analysis on the rise of “Right-Wing Extremism” (.pdf). The work triggered a testy political controversy, under pressure from conservatives inside and outside DHS. Conservative writers feared the DHS as demonizing — even, potentially, criminalizing — mainstream right-wing speech.
Stung, DHS responded by cutting “the number of personnel studying domestic terrorism unrelated to Islam, canceled numerous state and local law enforcement briefings, and held up dissemination of nearly a dozen reports on extremist groups,” the Washington Post reported in June 2009.

According to Johnson, his former team now consisted of a single analyst tasked with tracking all domestic non-Islamic extremism. His database has been shuttered. A Tea Party activist expressed his displeasure with Johnson’s 2009 report on the danger of far-right extremism. Rightwing hysteria came in the person of pundit Michelle Malkin.

Napolitano caved. As a craven and cowardly sop to her right-wing base, DHS Secretary Janet Napolitano repudiated Johnson’s paper, deep-sixed it, and would soon close down Johnson’s unit, leaving only one analyst to track what it called non-Muslim domestic terrorism.

Journalist Ackerman describes Johnson’s frustrations regarding the Sikh massacre. For Johnson, Ackerman writes, “ …the shooting was a reminder that the government’s counterterrorism efforts are almost exclusively focused on al-Qaida, even as non-Islamist groups threaten Americans domestically.” Johnson told WIRED magazine.

“DHS is scoffing at the mission of doing domestic counterterrorism, as is Congress,” Johnson told Danger Room. “There’ve been no hearings about the rising white supremacist threat, but there’s been a long list of attacks over the last few years. But they still hold hearings about Muslim extremism. It’s out of balance.” But even if that balance was reset, he concedes, that doesn’t necessarily mean the feds could have found Page before Sunday’s rampage.

“Johnson’s team was dissolved in April 2010,” Johnson told Danger Room, at which point he left. He says had he been at DHS, he “would have published an analysis calling attention to a growing number of attacks on mosques”, which he thinks could serve as a “warning” to Sikh communities that are often mistaken for Muslim ones.

But, as WIRED correctly points out, finding so-called ‘lone wolf” terrorists like Page is a challenge no matter their motivations, since they operate outside established extremist cells and often don’t have criminal records, making it difficult for law enforcement or homeland security officials to spot them.

Now a security consultant in the Washington D.C. area, Johnson used to work for DHS’ analysis shop, the Office of Intelligence and Analysis (I&A). He supervised a team of six analysts studying what he calls “domestic non-Islamic extremism.”

Looking at al-Qaida, the DHS employed as many as 40 analysts who looked at al-Qaida and other jihadist groups’ inroads into the homeland.
According to WIRED Johnson ran everything else. One person on his team worked on the threat from anarchists; another, the threat from animal-rights extremists. Still others looked at anti-abortion radicalism, white supremacy and radical environmentalism. They were supplemented by analysts at the FBI and the Bureau of Alcohol, Tobacco and Firearms; but outnumbered by the literally thousands of analysts, operatives and other counterterrorism officials throughout the government who focus on jihadism. “Salaries were our major budget item,” he recalls.
Then, in April 2009, Johnson warned that the election of the first African-American president, combined with recession-era economic anxieties, could fuel a rise in far-right violence.
“The Department of Homeland Security protects our country from all threats, whether foreign or homegrown, and regardless of the ideology that motivates its violence,” spokesman Matt Chandler told Danger Room.

“We face a threat environment where violent extremism is neither constrained by international borders, nor limited to any single ideology. This is not a phenomenon restricted solely to any one particular community and our efforts to counter

violent extremism (CVE) are applicable to all ideologically motivated violence. DHS continues to work with its state, local, tribal, territorial and private partners to prevent and protect against potential threats to the United States by focusing on preventing violence that is motivated by extreme ideological beliefs.”

Johnson, who has written a forthcoming book about far-right extremist groups, concedes that the definition of “right-wing” in his product was imprecise. In retrospect, he says he should have clarified that his focus was on “violent” right-wing organizations, like white supremacists, neo-Nazis and so-called Sovereign Citizens who believe the U.S. government is an illegitimate, tyrannical enterprise. Much like mainstream Muslims denounce terrorism and object to over-broad analysis portraying Islam as an incubator of extremism, so too do mainstream conservatives denounce neo-Nazis and white supremacists and dispute that those groups are authentically right-wing.

Nor does he think DHS should ignore Islamic extremism. “It just needs to be more balanced,” Johnson says. New York congressman Peter King has held three hearings in the past year on Muslim extremism,” he says, referring to the chairman of the House Homeland Security Committee, “but he’s yet to have a
single hearing on right-wing extremism when there’s been a lot more activity.”

His report – the one that got him fired – contains little that is sensational. People who follow non-Muslim hate groups will be familiar with most of the organizations included in the report.

The DHS/Office of Intelligence and Analysis (I&A) has no specific information that domestic rightwing terrorists are currently planning acts of violence, but rightwing extremists may be gaining new recruits by playing on their fears about several emergent issues.

“The economic downturn and the election of the first

African American president present unique drivers for rightwing radicalization and recruitment,” the report concluded.

It continued: “Threats from white supremacist and violent antigovernment groups during 2009 have been largely rhetorical and have not indicated plans to carry out violent acts. Nevertheless, the consequences of a prolonged economic downturn—including real estate foreclosures, unemployment, and an inability to obtain credit—could create a fertile recruiting environment for rightwing extremists and even result in confrontations between such groups and government authorities similar to those in the past.”

The Report said, “Rightwing extremists have capitalized on the election of the first African American president, and are focusing their efforts to recruit new members, mobilize existing supporters, and broaden their scope and appeal through propaganda, but they have not yet turned to attack planning.”

“The current economic and political climate has some similarities to the 1990s when rightwing extremism experienced a resurgence fueled largely by an economic recession, criticism about the outsourcing of jobs, and the perceived threat to U.S. power and sovereignty by other foreign powers.”

“During the 1990s, these issues contributed to the growth in the number of domestic rightwing terrorist and extremist groups and an increase in violent acts targeting government facilities, law enforcement officers, banks, and infrastructure sectors.”

“Growth of these groups subsided in reaction to increased

government scrutiny as a result of the 1995 Oklahoma City bombing and disrupted plots, improvements in the economy, and the continued U.S. standing as the preeminent world power.”
“The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks.”

“Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejectinggovernment authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.”

“Proposed imposition of firearms restrictions and weapons bans likely would attract new members into the ranks of rightwing extremist groups, as well as potentially spur some of them to begin planning and training for violence against the government. The high volume of purchases and stockpiling of weapons and ammunition by rightwing extremists in anticipation of restrictions and bans in some parts of the country continue to be a primary concern to law enforcement.”

“Returning veterans possess combat skills and experience that are attractive to rightwing extremists. DHS/I&A is concerned that rightwing extremists will attempt to recruit and radicalize returning veterans in order to boost their violent capabilities.”

“DHS/I&A assesses that a number of economic and political factors are driving a resurgence in rightwing extremist recruitment and radicalization activity. Despite similarities to the climate of the 1990s, the threat posed by lone wolves and small terrorist cells is more pronounced than in past years. In addition, the historical election of an African American president and the prospect of policy changes are proving to be a driving force for rightwing extremist recruitment and radicalization.”

But Johnson doesn’t contend that more resources would necessarily have stopped Page from attacking the Sikh temple. Lone-wolf terrorists are hard to spot. What the government should do instead is broaden its counterterrorism focus beyond just jihads.

As for the FBI, it appears virtually impossible to separate the contra- terrorism operations into (a) against international terrorists and (homegrown)non-Muslim domestic terrorists. The FBI provides no figures as to budgets or personnel for the two operating tracks.

It is known that FBI brass thinks the international side of the assignment is much sexier and more likely to produce press conferences and headlines from which promotions come. Since 9/11, the FBI, DHS and similar state and federal agencies have been drowning in a tsunami of physical and human resources.

So climbing the FBI international success ladder appears to be a far easier goal to aspire to.

This approach, many believe, is the FBI’s natural inclination. They are having a hard time breaking free of the Middle East/Muslim brand that decimated the World Trade Center and The Pentagon. Those frantic days post 9/11 days chasing brown-skinned Muslims are seared into their brain, and it will probably be another generation or two before they begin to recede.

Meanwhile, the skinheads, the neo-Nazis, the KKK, the Sovereign Citizen Movement, the heavily armed militias – and a thousand others – will continue to enjoy their First Amendment rights as they burrow deeply into life blood of our country.

This article originally appeared in the pages of Prism Magazine.

Thursday, August 16, 2012

Remember Mubarak?

US silence and a harassment campaign of “political decisions” by Bahrain’s judiciary system are responsible for the three-year jail sentence handed down to the country’s leading human rights defender today for participating in an “illegal gathering and calling for a march without prior notification.”

In a statement, the Bahrain Center for Human Rights and the Gulf Center for Human Rights, said ”When Nabeel Rajab was attacked and beaten by security forces during a protest in January 2012, there was an instant reaction from the US State Department and he was immediately released. He then received representatives of the US embassy in Manama in a visit to his home. When Nabeel Rajab was arrested and imprisoned in May 2012, there was no response from the US administration. As the attacks against Nabeel Rajab escalated, the silent reaction from the US administration continued.”

The King of Bahrain, King Hamad bin Isa al-Khalifa, a Sunni Muslim who rules over a tiny country whose majority is Shia, has been playing a conventional but well implemented PR game with the international community. And it seems it’s being successful, especially with the US.
Step One: The King’s strategy launched with his appointing a commission of outsiders – led by a renowned Egyptian judge – to investigate the human rights situation and call attention to abuses. It was to be no holds barred and the King promised to correct injustices in the system.

The Bahrain Independent Commission of Inquiry (BICI), paid for by the government itself and led by Professor Emeritus at De Paul University M. Cherif Bassiouni, found wide-ranging and grave violations of prisoners' human rights committed by government personnel. These include, but are not limited to, civilian deaths attributed to security forces, arbitrary detention, destruction and theft of property on arrest, prisoner injuries consistent with torture, and a deliberate practice of mistreatment by state agents. What is also notable about the BICI is that it does not call for the release of political prisoners. The King accepted the reports, warts and all.
Step Two: The second step was hiring a bunch of New York- and London-based PR high profile firms to communicate all the wonderful things King Hamad was doing. They had taken on a similar job for the King of Saudi Arabia, that neighboring bastion of freedom.

There were reports of dialogue between the protestors and all the king’s men. There were promises of more transparency, more representation, more liberty.

Step Three: So almost every day, I find in my email inbox a highly professional-looking press release reporting on the King’s latest beneficent act or agreement with his opposition. Even reports from the opposition says the King has remained calm and reasoned during these discussions.

Then there are what I recognize as special distraction press releases, like the one that arrived today. It was headed, " King Hamad bin Isa Al Khalifa of Bahrain ratified the kingdom's first child protection law Tuesday (August 7th),” Bahrain's Al-Watan reported.

According to a statement issued by Bahrain's Royal Court, the law has 69 articles that aim to protect children and their mothers.
It addresses children's health care, health records, nutrition, foster homes, safety, education, rehabilitation for handicapped children, protection against abuse and penalties for any violation of the law.

And sidebars – we must have sidebars to look professional.

Bahrain to investigate cases of torture

Bahrain king denounces 'foreign plot'

Five Bahrain police officers accused of torture

The law was approved by the legislature.

And for the coup de grace – making Parliament more democratic. Parliament has ratified amendments to Bahrain's constitution, with the monarch-led government hoping the new measures will defuse turmoil in the strategic Gulf state.
Opposition groups dismissed the extra powers given to parliament on Thursday as not enough, describing the moves as merely symbolic.

"The process of reform that marked the beginning of my tenure in power will not stop," said the Sunni monarch who succeeded to the throne of the Shia-majority kingdom in 1999.
"We hope in this important period that all forces and groups will assess their actions and join the process of progress and reforms," he said.
"Doors remain open to dialogue, which is aimed at achieving a national accord," he added, alluding to the Shia-led opposition that spearheaded months of pro-democracy protests that were crushed with deadly force in March last year.
According to the amendments, the king now has to consult the heads of the elected parliament and the appointed Consultative Council before dissolving the legislature.

The elected chamber alone now has the right to vote to withhold its co-operation from the prime minister and refer its decision to the king, who then has the final choice on whether to dismiss the premier or keep him in post.

But the amendments fall far short of the demands of the opposition, which has been pushing for an elected government and the scrapping of the appointed upper house.
"The king remains the one to appoint and dismiss the government," said Abdul Jalil Khalil, a leading member of the main Shia opposition group, Al-Wefaq.

The opposition wants "a single-chamber parliament that is elected, just as the constitution of 1973 stipulated", he added.

So: So far, the US has given Bahrain a giant get-out-of-jail-free card. All the signs point to our State Department being snookered by the King and all his trappings.

But how long ago was it the US was trying to show solidarity with those “loyal allies” who would bring “stability” to the region and nurture The Arab Spring into full flower?

Egypt? Tunisia? Yemen? Libya? Syria?
First, we petted these sleeping tigers until they bit us. We always had the military of these states with us, because from us they get the arms to kill their citizens.

But how about THE PEOPLE? The people we are supposed to be defending, nurturing, speaking out for – do they have any legitimate claims? Do you know? Have we looked?

Well, a few of us have. Amongst the 535 cowering souls we elected to Congress, 19 – yes, only 19 – had the guts to speak out against injustice in Bahrain.

In a letter to the King, the 19 Congress persons said: “Nineteen members of the U.S. Congress have written to Bahrain’s king to call for the release of prominent human rights activist Nabeel Rajab, who is currently serving a three-month jail sentence for making anti-government statements on Twitter.

Signatories inljuded Keith Ellison, who organized the project, and Patrick Leahy, JohnConyers, Ron Wyden, Rau Grijalva, Alcee Hastings, Rush Holt, Michael Honda, Barbara Lee, Zoe Lofgren, Carol Maloney, Jim McDermott, P. McGove, P. Moran, John Oliver, and Charles Wrangel.

Several other prominent rights groups including U.S.-based Human Rights First have also called for his release. They included the Congressional bloc known as the Tom Lantos Human Rights Group.

But I suspect the King will ignore these pleas. Instead, he will conjure up some magical new law – or abolish one – that gives Bahrainis cause for hope.

This is PR 101.

Remember Mubarak?

Sunday, August 12, 2012

A Second Chance for Second-Class Justice?

By William Fisher

In his Harper’s Magazine column in January of last year, Scott Horton raised the question, “ Can the Military Commissions Be Salvaged?”

Horton, himself a Constitutional lawyer, went on to say, “Among those who are most engaged with them, there is a general consensus that the military commissions created by the Bush Administration were a huge embarrassment. The question is whether they can now be salvaged and turned into something respectable.”

Why, he asks, “with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush Administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail…”

In the legal mishmash that the Military Commissions became, it seemed painfully clear that the second-class justice designed to be meted out by the Detainee Treatment Act of 2006 wasn’t going to fly. In fact, it was cut off at the knees by the Supreme Court in its decision on 29 June 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.

The 2006 law was followed by another in 2009, which was said to be more robust and more likely to provide fair trials and fair verdicts. This was in sharp contrast to the attitudes toward the 2006 law. But most legal experts agree that the changes President Obama spoke of as substantive were largely in the nature of tweaks and procedural changes – except for the new provision that detainee statements obtained under duress would not be admissible in military courts.

Two of the Commissions’most outspoken critics on the issue were Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, and Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld said that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

Then, of course, Congress was not in any mood to accept the Obama view that Article III Courts would be the most appropriate venues in which to try terror defendants. This was, first, a question of executive branch power over the legislature. Second, it was just plain political cowardice. By Republicans. By Democrats. And by The President, who never put the full force of his office behind the Article III movement.

Hysterical congress people were obsessing in public about “running into” terror defendants on the sidewalks near the Federal Courthouse in downtown Manhattan, or sharing popcorn with them at the local movies. Having spooked themselves and their constituents, it didn’t take much for these courageous lawmakers – on both sides of the aisle – to show how much they appreciated Obama’s respect for the rule of law.

In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial (that was back in the days when civilian Federal trials for GITMO detainees were still on the table).

Most legal experts, legal and human rights organizations, the entire Administration and at least a few in Congress, insisted that trials in Article Three courts were most likely to result in real justice.

Dozens of accused terrorists – including Zacarias Moussaoui, dubbed the “20th hijacker,” had been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.

Supporters of Federal trials for GITMO detainees noted that virtually no one noticed a terrorist trial in progress, and said the verdict vindicated the U.S. justice system; opponents pointed to the one-out-of-281-count conviction, and fanaticized about Ghailani on parole, enjoying breakfast at McDonalds.

New York Republican Rep. Pete King, who has bitterly opposed Federal trials, called the mixed verdict “a disgraceful miscarriage of justice.”

Congress sided with King and the trial’s many other opponents. It cut off funding for the transport of any GITMO detainee to the U.S. for any purpose whatever.

Ergo, the Administration was left with only bad options, and not many of those.

Back to Military Commissions is the option it took. And that news has furnished critics with a large, loud microphone.

Lawyers who are intimately familiar with the Military Commission system say it is not designed to produce justice; it is designed to produce convictions. They call it a second-class justice system.

Morris Davis, former chief prosecutor at Guantanamo Bay, told us, “In more than nine years since President Bush authorized military commissions, we’ve conducted a total of five trials and generated nothing but universal condemnation. We’re long past the question of whether we could do them to one of whether we should.

Putting lipstick on this pig is not going to convince anyone that she’s been transformed into lady justice.”

He added: “The 2009 version of the Military Commissions Act is a good example of the phrase ‘lipstick on a pig.’ It provides a few enhancements so President Obama can publicly embrace a process he longed condemned and at least make an argument that he hasn't totally abandoned the principles he speaks so eloquently about but has a hard time practicing. “

“I believe there was a time when military commissions, if done right, could have been credible, but that ship sailed a long time ago. We're like the little boy who kept crying wolf: we've reformed the military commissions over and over and over for 11 years and each time we've assured the world that this time, unlike the other times we said we'd made it right, it really is justice. The world called male bovine manure on that claim years ago and no amount of spit-shine is going to make anyone believe it's suddenly pretty and doesn't reek.”

Another GITMO veteran, Darrell J. Vandeveld, who resigned his appointment as a prosecutor before a Guantanamo military commission because of a serious ethical issue, told us, “Right after the President issued the order to close the prison, nothing good will come out of Guantanamo for years. Nothing has been accomplished during this hiatus except to demonstrate that military commissions are inferior, deeply-flawed ‘courts,’ that have delivered, in the few cases tried, inferior justice and utterly inferior results. Ghailani will likely receive a life sentence; Omar Khadr will likely be a free man in less than two years. The prior administration’s politicization of the military is unprecedented, and, as we see, ruinous. The current administration is only rejoining this fin de siecle circus.”

David Frakt also has equally serious doubts about the legitimacy of the Military Commissions. It was Frakt who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial.

Frakt argued that Hartmann had “…exercised unlawful command influence.”

Frakt also argued, during his challenge of Hartmann’s unlawful influence, that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt argued that Jawad had been subjected to: “…pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture.”

Bill Quigley, legal director of the Center for Constitutional Rights (CCR), a public interest law firm that has mobilized dozens of pro-bono private sector lawyers to defend Guantanamo detainees, told us, “We think President Obama has made a major mistake in getting behind military commissions. This is a second class system of justice for the Arab and Muslim men in Guantanamo. This second class system will likely be struck down by the courts and certainly will subject the US to more international condemnation for these violations of human rights.”

And Amnesty’s Tom Parker weighed in with a critique of a speech on The Supreme Court’s decision on 29 June 2006, when The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.

“There is simply no way to reconcile Barack Obama’s embrace of military commissions with the core criticisms made about Bush’s system. Just consider what was said in the past about Bush’s military commissions by key Obama officials, Bush critics generally and, on occasion, even by Obama himself, and decide for yourself if this is anything other than a replica of one of the worst and most extremist abuses of the Bush era”.

“One of the most definitive claims in this regard was from Obama himself, who — at the height of the presidential campaign last August, after Salim Hamdan was convicted of minor charges by a Guantanamo military commission — issued a statement that included this:

“That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.”

Prof. Peter Shane of the Ohio State University law school reminds us that, “In November, 2009, Attorney General Holder told Congress, ‘the venue in which we are most likely to obtain justice for the American people is in federal court.’

He’s right,” says Prof. Shane.

He continues: “Although the Commission system has been significantly improved through the Military Commissions Act of 2009, it will always be seen as offering a kind of second-class justice, and it is by no means obvious that anyone will be convicted through the Commission system who could not otherwise be prosecuted in federal court.”

Finally, veteran human rights defender Chip Pitts tells Prism, “The administration mishandled Congressional relations in ways that undoubtedly made it harder for President Obama to keep his campaign promises to close Gitmo and move away from military commissions, but its continued failure to deploy serious political capital on the entire cluster of domestic rule-of-law and human rights issues remains short-sighted.”

He continues: “Fears of trying these suspects in regular American courts are unfounded and unworthy of the ‘land of the free and home of the brave’, and make terror a self-fulfilling prophecy.”

Then Pitts asks, “Might America really execute an individual the US government tortured, on hearsay evidence, in illegal tribunals designed to convict, without a full and fair trial? “
Pitts concludes: “The only reason to have second-class systems of justice is to dispense second-class justice. Especially when it comes to political offenses like terrorism, such tribunals affirm rather than refute the terrorists’ claims that the dominant system is unjust. The very existence of such tribunals thus undermines both the rule of law and effective counter-terrorism, which is why (until they were resurrected by George W. Bush and his cohorts) the United States routinely condemned them, and it’s why such tribunals were increasingly relegated to historical works about the Dark Ages or novels like 1984 about a dystopian future. Now, that dystopian future is here.”

Chip Pitts is the former head of Amnesty USA and currently a law lecturer at Stanford and Oxford Universities.

Finally, Loyola University Los Angeles law professor David Glazier is quoted by Agence France Press (AFP) that the decision to allow confessions made under duress by Canadian Omar Khadr “do nothing to help the credibly of the (military) commissions. “Decisions which err on the side of allowing disputed evidence into the trials will only serve to fuel that criticism and undermine public confidence in trial verdicts,” he added.

Khadr was due to be transferred back to Canada last fall as part of a 2010 plea bargain in which he pleaded guilty to the murder of an American Army medic. At the time of the plea bargain, the Canadian government indicated it was “inclined to favorably consider” his transfer. However, the Public Safety Minister has yet to give formal approval for his return to serve the remainder of his sentence.

Lawyers for Khadr have asked a federal court to force the Canadian government to make a decision. Canadian authorities have said they are waiting to see the taped interviews.

Khadr, who was fifteen at the time of his capture by the American government, is the only remaining Western national at Guantanamo Bay.

Given estimates of those detainees who will be tried by Military Commissions, plus those who will eventually be repatriated to countries willing to welcome them, some 50 prisoners are left who can not be tried or released.

These prisoners are destined for indefinite detention, unless the Obama Administration surprises us all and finds another way to handle these cases.

Don’t hold your breath!

This article originally appeared in thhe pages of Prism Magazine.

Monday, August 06, 2012

Wins Nobel Prize, Creates Kill List

“As tyrannical a claim as we’ve heard in the last decade.” --Glenn Greenwald.


“The government needs a FISA warrant to eavesdrop on my phone calls but it needs nothing at all to kill me.”

That’s the essence of the cri de Coeur bubbling up from a varied group of human rights advocacy groups, academics, and public service law firms, as they struggle to understand Obama’s incendiary ruling – a ruling thus far made only by the Executive Branch of government, and not yet overseen by Congress or tested in any court. Even conservative lawyers are suggesting various tweaks and more major changes to legitimize the targeted killings.

To many of the policy’s critics, Obama’s actions reveal an insatiable desire to keep expanding the power of the Executive Branch of Government, and to do so in the opaque manner the President was so critical of when he was campaigning in 2007-8. Obama, it is suggested, also maintains a keen interest in keeping his “get tough on terrorists” image that rose to prominence with the killing of Osama bin Laden.

The very existence of the Obama Administration’s “kill list” -- individuals, including US citizens, who the government says have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government -- has rocked the legal world.

For shock value alone, the heart of the policy is found in the press announcement from the American Civil Liberties Union on the day of the killings. 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.”

Glenn Greenwald is typical. Here he is reacting to the first lawsuit brought against President Obama in 2010. This lawsuit was thrown out of court when the judge ruled that the plaintiff -- Anwar Awlaki’s father – had “no standing” to ask the court to issue an order enjoining the President from assassinating his son with no due process.

Greenwald wrote: “In court that day, the Obama DOJ raised numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over who to assassinate as part of the ‘War on Terror’.”

Most viscerally horrifying to him? The very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, is as tyrannical a claim as we’ve heard in the last decade,” he charged.

The ACLU was devastated to contemplate that ruling as the end of their case. So a new case was filed, this time a partnership between the ACLU and the Center for Constitutional Rights (CCR). "This suit is an effort to enforce the Constitution's most fundamental guarantee, the guarantee of due process," said Jamil Jaffer, deputy legal director of the ACLU, on a conference call with reporters. "Ten years ago extrajudicial killing by the United States was exceptional. Now it's routine."

The lawsuit contends that the United States government violated the constitutional rights of the three men by killing them without court review outside of an active war zone.

The Obama administration has contended that it has the authority to target suspected members of Al Qaeda outside the conflict in Afghanistan and Pakistan, particularly if a given individual poses what it calls an "imminent threat."

But the ACLU-CCR lawyers believe their chances for getting a hearing are better this time than from the first case brought. This is because their clients, in losing their loved ones, suffered a concrete injury that can't be denied, and because of the more frank public acknowledgements by administration officials of the targeted killing program's existence. The latter, the lawyers argue, will make it more difficult for the government to contend the matter is a state secret.

"What they would be saying is, that they have the authority not just to kill American citizens who are deemed to be enemies of the state, and not just that they have the authority to kill citizens without explaining why they've done it, but even that they have the authority to kill citizens without even acknowledging their role in it," Jaffer said. "If the previous administration had proposed a policy of that kind, it's inconceivable that we would have accepted it."

Hina Shamsi of the ACLU told Prism, “The case turns on the killing now having been carried out -- there is no question that there is standing now. This lawsuit also raises different issues and claims as a result”.

Glenn Greenwald said the current case saw the Obama DOJ raising numerous arguments, all of which were grounded in the claim that courts have no role whatsoever to play in interfering with the President’s decisions over whom to assassinate as part of the ‘War on Terror.’

He continued: “Along with several others, I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: the very idea that the President claims the right not only to order Americans killed with no due process, but to do so in total secrecy beyond the reach of the courts, as tyrannical a claim as we’ve heard in the last decade.”

Along with several others, Greenwald writes, “I focused on the DOJ’s invocation of the “state secret” privilege because that was most viscerally horrifying: “The very idea that the President claims the right not only to order Americans killed with no due courts, as tyrannical a claim as we’ve heard in the last decade.”

This was precisely what Obama critics found so utterly grotesque. The Obama Administration would use the ‘State Secrets’ privilege to deny the court any details of the targeted killing operation. As ACLU lawyer Ben Wizner pointed out, it would be the first time a president – any president – had used the privilege to protect and conceal its own policies.

Wizner suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. He told Prism, “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.

It is this claim – plus some peripheral claims concerning collateral damages – that is giving apoplexy to human rights defenders. Word from the White House is that the Obama Administration will define as “collateral damage” any military-age males found in the immediate area of the drone attack. These could be shoppers, families on their way to the clinic, kids going to school, just about anything, so long as they were close enough to the action to be killed because of it.

Other advocates were equally incensed. Marjorie Cohn, a professor at the Thomas Jefferson Law School, told Prism, “Drone attacks violate international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force. against a specific individual who is not in the physical custody of the perpetrator. Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists.”

Amnesty USA came down hard on the Administration. In a special report, it wrote, “The picture slowly emerging gives grounds to conclude that US policies and practices are unlawful, violating the fundamental human right not to be arbitrarily deprived of one's life.”

Another advocacy group, Human Rights First, predicted that “the Obama Administration’s policy on targeted killings will not be seen as legitimate until the Administration makes clear which groups it believes we’re at war with and how it defines who is a legitimate target for killing as part of the U.S. war strategy,” said Human Rights First’s Daphne Eviatar.

The 2001 Authorization for the Use of Military Force allowed the U.S. military to wage war against “those nations, organizations, or persons” who the president determined “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

“Osama bin Laden is dead and al Qaeda has been decimated and driven from Afghanistan. If the United States is expanding the list of targetable groups and individuals beyond those who were responsible for the 9/11 attacks, it needs to make that clear, and to provide a justification for why such attacks are lawful,” said Eviatar. “So far it has failed to do that. Today, the Attorney General has the opportunity to do just that.”

Elisa Massimino, CEO of Human Rights Watch, called on Obama to immediately clarify that “international law does not permit the targeting of any member of a terrorist group with which we claim to be at war and does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group”

The “mechanics” of the drone strikes are still emerging and the Obama administration appears to be on a high-powered vendetta against the very whisteblowers the president pledged to protect. Anonymous sources speculate that “American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.”

“There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”

“The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list.”

There have also been some voices of approval as well as condemnation. One of them belongs to John Brennan, Obama’s chief of counter intelligence. He said:

“Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States government conducts targeted strikes against specific Al Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones,” Brennan said before the Woodrow Wilson International Center for Scholars.

“The use of armed drones to strike at suspected militants in places like Pakistan and Yemen has grown dramatically under the Obama administration, and the emergence of the new technology — which has sharply reduced the cost and risk of warfare to its operators, making it easier to engage in sporadic combat in far-flung regions — has led to growing concerns both about civilian casualties and about a future in which other countries also acquire drones,” he said.
The United States government has been reluctant to talk openly about its use of drones, apparently in part because foreign governments that granted permission for strikes did so on the condition that the deals would remain secret.
Defending drone strikes as “legal, ethical, and wise,” Brennan said the president had directed officials to be more open about how they “carefully, deliberately and responsibly” decide to kill terrorism suspects — including what he described as “the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of Al Qaeda outside the ‘hot’ battlefield of Afghanistan.”

Brennan also said the administration preferred capturing such suspects alive — usually by telling a foreign government where to arrest them — and would authorize a strike only if that was not feasible.

The killing of civilians by drones has fueled anti-American sentiment, especially in Pakistan. The number of such deaths — especially in remote regions where it is difficult for neutral observers to investigate — has been hotly disputed. American officials have described such deaths as rare, while critics have said there are far more than the government acknowledges.

Brennan said American citizens who join Al Qaeda may also be targeted — after extra internal review, but he did not mention the killing of at least three Americans in drone strikes in Yemen last year, including Anwar Al-Awlaki, a radical cleric.

The Obama administration is fighting to avoid disclosing information related to the targeted killing operations under the Freedom of Information Act, including FOIA lawsuits filed by The New York Times.

A number of counterterrorism professionals and academics have proffered limited approval of the kill list policy. Writing in the journal of the American Bar Association, Amos Guiora, an Israeli-American professor of law at The S. J. Quinney College of Law at the University of Utah, and an expert on drone attacks, declares, “While I believe the Al-Awlaki killing lawful, I am deeply troubled by the broad rationale articulated by the Obama Administration. Yes, the Al-Awlaki killing reflects aggressive self-defense coupled with a respect for the obligation to minimize collateral damage. However, the Administration failed to articulate exactly how, beyond mere speech, Al-Awlaki was connected to terrorist activity. The mere ‘likelihood’ of membership in a terrorist organization is highly problematic.”

Comments like these can be seen as constructive efforts to make the targeted kill program respectable in the eyes of the law – a goal that remains murky and confused. With a very long way to go.

And it is difficult to forget that in the course of research for this article, the phrase heard most often was:

“If they want to intercept my phone calls or my emails, they need to get an order from the FISA court. If they just want to kill me, they don’t need to get any orders from anybody.”

Isn’t there just plain something wrong with that construct?

Saturday, August 04, 2012

Censoring the Whistle!

By William Fisher

Republicans on cable news have been hyperventilating about the White House leaking whistleblower information that makes the president look good before the election. Maybe so, maybe no.

But whistleblowers’ information can work two ways. More often than not, news that ought to be disclosed is suppressed by people who worry that it will make the president look bad. And those self-appointed censors -- including high-ranking military officers – need to be held accountable for spewing a barf of lies among the American people.

The practice is known as Propaganda. No, not Public Diplomacy. Propaganda – in which despite the Obama Administration’s pledge of openness and accountability – the public is fed a menu of lies and half-truths designed to morph a bad war into a slightly less bad war, or boast about “victories” in what is becoming a “good war.”

Such was the case when the American general who led a NATO training mission in Afghanistan opposed an investigation into corruption and "Auschwitz-like" conditions at a US-funded hospital in Kabul for political reasons, US military officers told the House of Representatives Committee on Government Oversight last week.

According to an active-duty witness, a three-star general, Lieutenant General William Caldwell, who headed the training mission in Afghanistan, forced him to do a 180 on a request for an inspector general's investigation into the Dawood Khan national military hospital in Kabul.

This signature hospital, funded by the US and dedicated to caring for wounded Afghan soldiers, is entirely run by and supposedly for the Afghan military.

When your members of Congress return from Afghanistan and tell you we’re winning the war, losing it, or doing something in the middle, the chances are they aren’t getting to see much of the war at all. What they’re seeing is what senior officers are describing as a “dog and pony show.”

In the case of the Dawood Khan Hospital, your Congress people – and senior officers assigned to inspect the facility – will get to see the part of the hospital reserved for the favoring eyes of VIPs.

But what was actually seen in an inspection by a retired Air Force surgeon and other officers will curl your toes.

For example, a witness before the House Committee on Oversight, retired colonel Schuyler Geller, a command surgeon attached to the training mission, charged poor patient treatment and corruption. He also confirmed that Gen. Caldwell rejected an inspector general's investigation and had partisan motives in postponing any investigation until after the 2010 election.

Geller told the hearing that when military officials came to visit the hospital they got a "dog and pony show" that covered up the abuse.

What was actually seen by those who ducked the dog and pony show was described by another high-ranking officer, Col. Mark F. Fassl.

At the hearing, he and other officers described the extent of human suffering at the hospital, where the lack of care forced families of soldiers to empty "vats of blood draining from their wounds."

When asked to describe the scene at the hospital, Fassl said it lacked basic facilities. Hygiene was poor and the hospital had no soap, no heat and no means to boil water, he said.

"There were open vats of blood draining out of soldiers' wounds, there were feces on the floor. There were many family members taking care of their loved ones. The family members were emptying these vats of blood to help their patients out."

Fassl said: "When I think about what we were trying to do in Afghanistan, which is build the army and police corps, how could we allow this type of suffering to go on when we should be showing the Afghan citizens that their soldiers matter?"

Last year, the Wall Street Journal reported that “Afghan soldiers often died from neglect or lack of food as some Afghan doctors and nurses demanded bribes for food.” Fassl said he had expected Caldwell to insist on going to the hospital to find out what was going on.

The Committee staff sad Caldwell “eventually agreed to request a limited investigation,” but said it "would not mention the Auschwitz-like conditions at the national military hospital".

Instead it concentrated on the corruption built into the acquisition and diverted deliveries of hospital equipment and supplies, including supplies of medications. Millions of dollars in medications were diverted to Pakistan and elsewhere, creating acute shortages in the Dawood Hospital and driving up the price in other locations.

Congressional Committee officials said the Inspector General has now opened two investigations in response to complaints over the response of Caldwell and a deputy, now Major General Gary Patton.

It said one concerns the Military Whistleblower Protection Act, which stops commanders from restricting subordinates' communication with the inspector general. The second involves allegations of reprisal from a complainant who alleged that Caldwell and Patton cited partisan reasons for requesting postponement of an investigation until after the 2010 elections.

But other witnesses testified that the committee “should be considering a broader issue than conditions at the hospital. What this hearing should be about are attempts to over-control the message. It is about some leadership that puts the best foot forward and relies on the hard built reputation earned by the military to soften any belief that there is a need to see the other foot."

The full, stated mission of the NWC is:

The National Whistleblowers Center (NWC) is an advocacy organization with a 23-year history of protecting the right of individuals to speak out about wrongdoing in the workplace without fear of retaliation. Since 1988, NWC has supported whistleblowers in the courts and before Congress, achieving victories for environmental protection, nuclear safety, government ethics and corporate accountability.

NWC also sponsors several educational and assistance programs, including an online resource center on whistleblower rights, a speaker’s bureau of national experts and former whistleblowers, and a national attorney referral service run by the NWC's sister group the National Whistleblower Legal Defense and Education Fund (NWLDEF). The National Whistleblowers Center is a non-partisan, non-profit organization based in Washington, DC.

Just ponder for a moment all the disclosures that would not have been possible without the help of whistleblowers, who risk their jobs and even their liberty to report on corruption, fraud, and waste.

• The Forensic Justice Project (FJP): After leading a successful six year campaign to reform the FBI's Forensic Crime Lab, the Center's Forensic Justice Project has taken on a review of misconduct in crime labs nationwide. The cases under review have impacted many potential wrongful convictions, resulted in the review of thousands of cases, and given freedom to wrongfully convicted defendants. In addition to reviewing misconduct at state crime labs, the FJP continues to monitor and expose problems within the FBI and FBI crime lab.
• Winning reinstatement for the highest ranking nuclear whistleblower;
• Collecting millions of dollars in damages on behalf of whistleblowers;
• Using the Freedom of Information Act (United States) to force government agencies to release hundreds of thousands of pages of information documenting government misconduct;
• Exposing misconduct at the World Trade Center and the 9/11 crime scenes, including theft by FBI agents and the mishandling of evidence;
• Requiring the FBI to create whistleblower protection for FBI agents for the first time in U.S. history;
• Forcing the FBI to accredit its crime lab;
• Forcing the United States Attorney General to withdraw gag orders on government employees who desired to expose ethical violations to Members of Congress;
• Successfully worked with Congress to ensure passage of critical whistleblower protection laws, such as the No-FEAR Act, the Sarbanes-Oxley Corporate Whistleblower Protection Act, and the Civil Rights Tax Relief Act;
• Forcing President Bush to withdraw his nomination for head of enforcement at the United States Environmental Protection Agency due to former retaliation against whistleblowers;
• Preventing federal agencies from gagging employee speech critical of agency policies;
• Banning "hush money" payments for all environmental and nuclear federal safety cases;
• Exposing the vulnerabilities of U.S. nuclear power plants to airborne terrorist attacks and forcing reforms in the U.S. Nuclear Regulatory Commission;
• Ensuring that military whistleblowers are informed of their rights by the Department of Defense;
• Establishing numerous legal precedents strengthening whistleblower protections for public and private sector employees, including expanding the scope of protected whistleblower speech, enjoining government regulations which restricted whistleblowing, and expanding the use of the Privacy Act to prevent the government from smearing its critics.

Over the years, a growing number of whistleblowers have climbed into the Pantheon of honor for the whistleblowers' group. These people, the organization claims, have made extraordinary contributions and should be recognized.

Here are some of them:

• Mrs. Bunnantine (Bunny) Greenhouse, former chief contracting officer of the United States Army Corps of Engineers, testified in June 2005 before a Democratic Party public committee. Her testimony included allegations against Halliburton of instances of waste, fraud and other abuses with regards to its operations in the Iraq War. After standing up and "blowing the whistle," she was demoted and removed from her position as the chief civilian contracting authority of the Corps. In July 2011, she won close to $1 million in full restitution of lost wages, compensatory damages, and attorney fees.
• Jane Turner. In 1999, former FBI special agent Jane Turner brought to the attention of her management team serious misconduct concerning failures to investigate and prosecute crimes against children in Indian Country and in the Minot, North Dakota community. Turner also reported on misconduct related to the potential criminal theft of property from the 9/11 Ground Zero crime scene in New York City by Minneapolis FBI personnel. Although she was considered one of the best agents working in Indian Country, Turner's twenty-five year career with the FBI was brought to a halt when she was forced from service as retaliation for what FBI management termed as "tarnishing" the image of the FBI.
• Dr. Frederic Whitehurst. Dr. Whitehurst is the Executive Director of the NWC's Forensic Justice Project. Dr. Whitehurst received a Ph.D. in chemistry from Duke University, a J.D. from Georgetown University. He joined the FBI in 1982 and served as a Supervisory Special Agent in the FBI crime lab from 1986-98. He retired after winning the first-ever whistleblower case against the FBI.
• Dr. Marsha Coleman-Adebayo. Dr. Coleman-Adebayo was a senior policy analyst for the United States Environmental Protection Agency (EPA). She founded two employee-rights groups, EPA Employees Against Racial Discrimination and the No FEAR coalition. Through her leadership, the No FEAR Coalition, working closely with Representative James Sensenbrenner, organized a successful grass-roots campaign and obtained overwhelming Congressional support for the "Notification of Federal Employees Anti-discrimination and Retaliation Act." The Act was signed into law by President Bush in 2002.
• Murphy v. IRS: In Murphy v. IRS, whistleblower Marrita Murphy (represented by David K. Colapinto, general counsel for the National Whistleblower Center) challenged the constitutionality of taxing compensatory damages in civil rights/whistleblower cases.

In August, 2006, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of Ms. Murphy, and declared unconstitutional a special tax Congress had passed in 1996, which targeted civil rights victims who received compensation for emotional distress damages.

However, on July 3, 2007, the U.S. Court of Appeals for the District of Columbia Circuit reversed itself on the case, holding that the IRS can tax damage awards based solely on compensating victims who suffer emotional injuries.

And then, of course, there are the three largest whistleblowers in US history: Julian Assange of Wikileaks fame; Bradley Manning, whose trial will take place some day in the future; and Daniel Ellsberg from the Vietnam era.

What Manning’s egregious treatment was and what fate is likely for Manning and Assange, at one level, has simply become a Washington DC parlor game. But at another level, the outcome of this litigation will tell us a lot about the future of our country.

Hopefully, in the same way that the Washington Post’s Dana Priest’s and Anne Hull’s scathing expose of conditions at The Walter Reed Medical Center resulted in maximum news coverage world-wide and ignited the political will to make substantial changes for the better. And earned the authors Pulitzer prizes.

Maybe we’ll get lucky twice.

Wednesday, August 01, 2012

Oh What a Tangled Web We Weave When First We Practice to Deceive

By William Fisher

This blog post really ought to be written by Andy Borowitz, a very funny guy who gets off on finding incontrovertible evidence that Kafka is alive and well and hiding out in the wheel well of Air Force One.

Last week, if you were very, very quiet, you could hear Mischievous Franz chuckling at the notion that his elliptical Kafkaesque prose was being wrapped in the stale burrito of bureaucratic word-speak, ensuring that neither literati nor Joe SixPak would have the foggiest idea what was being said to whom by whom about what and for what reason.

Do all these words have a point?

Yes, they do. They’re about the government’s No-Fly-List. Here’s what the ACLU had to say:

First, the good news. Last week, the Ninth Circuit Court of Appeals unanimously ruled that the ACLU’s lawsuit challenging the U.S. government’s secretive No Fly List should go forward. Here’s part of the ACLU’s press release:

“This decision is a true victory for our clients and all Americans,” said Nusrat Choudhury, Staff Attorney with the ACLU National Security Project. So now comes the not-so-good news.

He explained: “More than two years ago, 15 U.S. citizens and permanent residents, including four military veterans, were denied boarding on planes. None of them know why this happened. And no government authority has ever given them an explanation or a fair chance to clear their names.”

At that time, Choudhury said, “the ACLU filed a lawsuit on their behalf. It challenged both the placement of these Americans on the No Fly List and the government’s failure to afford them a fair redress process after depriving them of their right to travel. We sued the logical government agencies: the FBI and its subagency, the Terrorist Screening Center, which creates and controls the No Fly List.” Please try to remember that.

But, in May 2011, Choudhury explains, “the district court in Portland dismissed the case for lack of jurisdiction. The Court ruled that we should have sued the Transportation Security Administration, (TSA) which administers the (woefully deficient) redress process for travelers denied boarding on planes.” Please try to remember that factoid also.

Not being easily intimidated, the ACLU appealed to the Ninth Circuit Court of Appeals.

At the hearing, Choudhury said he argued that “the district court decision was wrong because TSA doesn’t have the power to put people on, or take them off, the No Fly List—that’s the job of the FBI and TSC. I also argued that placing our clients on the No Fly List without providing them any opportunity to confront and rebut the “evidence” against them is unconstitutional.” I hope you’re remembering all this,

“As the ACLU previously blogged, the government attorney astonishingly refused to concede that federal courts even possess the authority to remove names from the No Fly List. Taken to its logical conclusion, the government’s position would mean that no court would be able to correct the wrongful placement of American citizens and permanent residents on the No Fly List even if these people got to court by jumping through all of the hoops that the government argued should be put in front of them.”

According to the government, “all a person could do is file a complaint with the existing TSA redress process, and simply hope that some government official would correct a mistake or change her mind. This position is untenable, especially because we know that government watch lists are bloated and include the names of innocent people.”

Last week’s Ninth Circuit decision “marked a first and important step towards putting a check on the government’s ability to blacklist its citizens without recourse.”

“The Ninth Circuit reversed the district court and permitted our lawsuit to go forward.” It affirmed our position that the government had “concede[d] that TSC decides both whether travelers are placed on the List and whether they stay on it,” and found that it would be “futile” to order TSA to remove the plaintiffs names or give them a chance to clear their names from the No Fly List.

“It also recognized that the government failed to provide a good answer to a question of tremendous importance to our clients and all Americans:

At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?”

“The Ninth Circuit reached the right answer: federal district courts can adjudicate citizens’ and permanent residents’ challenges to their placement on the No Fly List and their demand for a fair redress process.”

“This decision means that a court will finally consider our clients’ claims that a secret government watch list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.”

How does all this official two-ing and fro-ing affect our citizens?

Some can’t go abroad. Some are abroad and can’t come home. They miss important meetings where their veterans’ benefits will be discussed. They are separated from their families and their lawyers. They are incurring substantial legal and other costs for which they will not be reimbursed.

So maybe appealing to the idiosyncratic 9th Circuit Court of Appeals is just what the doctor ordered.

Until the Government invokes the State Secrets Privilege.