Saturday, February 11, 2012

Egypt: The Army’s Chess Match?

Egypt: The Army’s Chess Match?

By William Fisher

Tensions between long-standing allies Egypt and the US climbed to a new high this week as Egypt’s ruling generals arrested 43 employees of the country’s non-profit non-governmental human rights organizations – including several from the US

But many are suggesting that the US organizations are simply being used as pawns in a larger game -- the military’s increasingly desperate efforts to make a deal with the country’s Muslim Brotherhood that would define and secure the Army’s role in the future Egypt.

The Background: Last week the Egyptian Ministry of Justice swooped down on the offices of all the major non-governmental organizations (NGOs) in the country, searched the offices, confiscated computers and other files, and arrested 43 employees and charged them with "accepting funds and benefits from an international organization" to pursue activities "prohibited by law" and carrying out “political training programs.”

Accepting foreign funds was Mubarak’s bogeyman under his repressive and restrictive NGO law. Now that law has been held over by Mubarak’s successors, the military, which threatens to make it even more draconian.

In a letter to the SCAF (the Supreme Council of the Armed Forces), Daphne McCurdy, a Senior Research Associate with the Project on Middle East Democracy (POMED) said: These groups have worked transparently and in cooperation with Egyptian authorities to help support Egypt’s democratic transition—a goal to which the ruling military council purports to be committed. Sixteen of those charged are American citizens, seriously threatening the future of the U.S.-Egypt relationship.”

This controversy is merely the latest chapter in a series of attacks against both Egyptian and international civil society organizations that escalated shortly after the ouster of President Mubarak one year ago.

The Egyptians gave Washington a heads-up regarding likely future developments back in July, when SCAF Major General Assar gave a talk at the United States Institute for Peace in Washington DC, in which he said that foreign funding to NGOs without government pre-approval “represents a danger, in light of the recent incidents where many police weaponry was lost, and about 20,000 prisoners escaped from the prisons of Egypt following the events experienced by the country.”

Later that month, Field Marshall Tantawy, head of the SCAF, said in an address to officers that “there are foreign players who feed and set up specific projects that some individuals carry out domestically, without understanding. It is possible that there is lack of understanding, that foreign players are pushing the people into inappropriate directions [since they do] not want stability for Egypt."

It’s now clear that the government’s “investigation” into NGOs has been ongoing for months and that dozens of other organizations are also at risk. A leaked ministry of justice report in September 2011 listed 39 of the most vocal human rights organizations in Egypt as not registered under the Associations Law and said a further 28 were receiving foreign funds without prior authorization. The vast majority of those named were human rights and democracy organizations.

POMED, the influential Project on Middle East Democracy, reported that US authorities and human rights advocates expressed displeasure with the SCAF investigation. For example, the group said, while excerpts of the investigation’s report were leaked to the Egyptian press in September, the official report has never been made public nor have suspects been officially notified of the charges against them.

POMED also declared that it was not until IRI employee Sam LaHood – son of President Obama’s Secretary of Transportation, Ray LaHood -- arrived at Cairo’s airport and was prohibited from boarding a flight that suspects were made aware that they were barred from travel.

POMED is a non-profit, non-partisan organization based in Washington, DC, dedicated to examining how genuine democracies can develop in the Middle East and how the United States can best support that process.

Most recently, the Ministry of Justice announced it was referring 43 individuals to face trial, but the formal charges have yet to be delivered to the suspects. U.S. policymakers have also received inconsistent messages from the Egyptian government, as the ruling military council and the Ministry of Foreign Affairs have sought to reassure the U.S. government and targeted organizations while the Ministry of Justice and Minister Aboul Naga have struck a defiant tone.

The Muslim Brotherhood, which earlier endorsed the investigation, denounced the American reaction to the NGO probe as inconsistent. “America does not allow any foreign organization to open branches and operate without a permit," said Brotherhood Spokesperson Mahmoud Ghazlan. U.S. lawmakers have threatened to halt the $1.3 billion in promised military aid to Egypt in response to the investigation.

Generally being overlooked is that the organizations whose offices were raided and employees arrested have been well known to the Mubarak government – and approved, tacitly and overtly, for many years. Mubarak’s NGO law made it extremely difficult to operate in the human rights, democracy-building, and related fields. There were occasional prosecutions for accepting foreign funds without prior approval.

That’s what’s going on at the surface. But the backstory is far more Machiavellian, according to one of the most credible witnesses to the current scene in Egypt. He is Samer S. Shehata, Assistant Professor of Arab Politics at the Center for Contemporary Arab Studies at the Edmund A. Walsh School of Foreign Service at Georgetown University in Washington.

We asked Prof. Shehata if the Egyptians should be prosecuting these NGOs.

His answer: “Of course not. There is no justification for prosecuting or harassing these organizations. Many of them were in operation with the full knowledge of the government previously. Moreover, their activities are not detrimental to the political process or sovereignty.”

He said the question facing the government vis a vis NGOs is whether in the post-Mubarak Egypt, the procedures for establishing an NGO will be made easier, transparent and standard.”

But Shehata emphasized his view that, “I don't think the moves against these organizations have much to do with what these organizations actually do (or what they did). This is political hardball between the SCAF and the US administration. One must assume that the SCAF knows what they are doing (escalating the challenge with the US administration) and they are trying to signal to the Obama administration that the US should not get involved or voice opinions regarding Egypt's internal politics in the next, crucial period, in which some kind of a "transition" will be worked out between domestic political forces, most importantly the Muslim Brothers and the military, about the future shape of Egyptian politics.”

He added, “I think the issue of the NGOs is being used in a much larger and more important attempt to limit US statements and actions in the coming period.”

Shehata cautioned that commenting on the current NGO problem requires a certain degree of “reading the tea leaves.”

“The best assessment -- and the one that makes the most sense -- in this period is that “the actions against the NGOs signal to other NGOs in Egypt concerned with human rights, personal and political freedoms workers' rights, etc. that the regime/SCAF could move against them. It must be a tremendous disincentive to vigorously criticize the current state of affairs, SCAF's responsibility or the ‘transition’ period for many other domestic organizations.”

Shehata was asked, “What should the response of the US be vis a vis military aid, and where's it all going to end?”

He replied, “I can only imagine that the Egyptian regime will eventually drop the charges against the Americans affiliated with these NGOs, allowing them to leave the country and avoid any kind of prosecution.”

Other observers tell much the same story. For example, Prof. Lawrence Davidson of West Chester University told us, “My guess is that this is part of an unwritten agreement between the generals and the Muslim Brothers. If you look at who these NGOs were helping, it was the elements that stand in opposition to both the Islamists and the army. It might be that going after these groups is the price the Egyptian generals have to pay to keep the Muslim Brotherhood from sending their followers into the streets to join the liberal/secular/youth folks presently protesting.”

Back in Washington, the NGO situation created a firestorm of protest, with Senators warning of a “Disastrous” Rupture of U.S.-Egypt Ties. In a statement, US Senators John McCain, Kelly Ayotte, and Joe Lieberman warned Egypt's government that the ongoing investigation into foreign-funded nongovernmental organizations could result in a "disastrous" rupture in ties with the US, saying, "harassment and prosecution" of US citizens must end, and "support for Egypt, including continued financial assistance, is in jeopardy.”

In an article published yesterday, Amnesty International said that NGOs in Egypt were being held "hostage," and called for the "repressive laws on civil society" to be scrapped. "These international associations have become the latest scapegoats as the authorities desperately spin their story of foreign conspiracies," said Hassiba Hadj Sahraoui, Deputy Director of Amnesty International’s Middle East and North Africa Program.

But Egyptian Prime Minister Kamal Al Ganzouri dug his heels in, declaring that Egypt "will not kneel" and "will not change [its] stance because of American aid."

The response to the Prime Minister’s bravado comes from Joe Stork, the veteran official of Human Rights Watch (HRW).

He said, “The Egyptian authorities are using a discredited Mubarak-era law to prosecute nongovernmental groups while proposing even more restrictive legislation. The government should stop using the old law, halt the criminal investigations, and propose a law that respects international standards.”

He concluded: “This campaign targets the Egyptian human rights and democracy groups that were prevented from registering by Mubarak’s security forces. Foreign funding is their lifeline. Egypt’s military government is now using the kind of tactics used by Zimbabwe and Ethiopia to silence independent voices.”


Reigning in the Prosecutors

By William Fisher

Writing articles about prisoners on Death Row is easy. Even after conviction, nagging questions about guilt or innocence often remain. Most of the colorful characters in the original cast are still around. All the suspense of a good whodunit is still there.

That’s the easy part.

The hard part comes when it emerges that an innocent person has been sentenced to die for a crime he didn’t commit. And when the alleged reason is misconduct by the prosecutors.

Doing something about that is the hard part. Because prosecutors are powerful people.

And so it was with Tyrone Noling, who has been sitting on death row since 1990, when he was convicted of murdering an elderly couple.

In 2009, 13 years after the original trial, prosecutors provided defense attorneys with handwritten police notes from the investigations in 1990 in which a witness identified another man as having committed the murders.

But the state is currently refusing to test DNA evidence collected from the crime scene that might place this “other man” at the scene of the crime.

As in the case of Troy Davis, who was put to death in Georgia last year, at the time Noling was charged there was no physical evidence and no witnesses to the alleged crime.

But Andrew Cohen, writing in The Atlantic, points out that when an aggressive investigator took over the case, some witnesses began giving statements against Noling. Cohen adds that all these witnesses have since recanted their statements, claiming they were pressured by the prosecutor.

And the Death Penalty Information Center, in a statement, said, “We pause for a moment to highlight our concern about Noling's death sentence in light of questions raised regarding his prosecution. Noling was not indicted until five years after the…murders when a new local prosecutor took office. That new prosecutor pursued the cold murder case with suspicious vigor according to Noling's accusers, who have since recanted their stories and now claim that they only identified Noling as the murderer in the first place because they were threatened by the prosecutor.”

Nonetheless, Noling was convicted on that testimony and remains on death row.

What to do about it? Well, in such cases, organizations and individuals traditionally circulate petitions and contact their lawmakers. From time to time, we hear from the American Bar Association or the Association of Trial Lawyers, calling for investigations of prosecutorial misconduct, more oversight of prosecutors, or tougher penalties on lawyers who break the rules. Sometimes, the media may pick up the odd story. But it typically has a one-day life, failing to gain the traction needed to be widely publicized.

But now, four organizations are conducting a campaign do something about the dozens of cases in which prosecutors failed to take the actions demanded by the law and their professional code of ethics.

The Innocence Project, Veritas Initiative, the Innocence Project New Orleans and Voices of Innocence have embarked on a nationwide tour focused on Prosecutorial Oversight. Its objective is to explore policy reforms to discourage overzealous prosecutors from trying to make their own laws.

The tour, which includes stops in Arizona, California, Louisiana, New York, Pennsylvania and Texas, will bring together participants from all aspects of the criminal justice system including legal ethics professors, members of bar disciplinary committees, prosecutors and judges. At the end of the tour, the groups will prepare a report with recommendations for reform.

“We recognize that this is a complex problem. It is not easy to develop internal systems in prosecutors’ offices that effectively distinguish between error and misconduct nor independent institutions outside of their offices that can adequately investigate and remedy misconduct when it occurs,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. The Innocence Project has become celebrated for freeing hundreds of prisoners who were wrongfully convicted.

John Thompson --- who lost his appeal before the U.S. Supreme Court last year and was stripped of his $14 million civil award for the intentional misconduct that caused his wrongful murder conviction and near execution -- will headline forums across the country with policy makers and prosecutors to spark a national dialogue on possible solutions.

“As someone who came within days of being put to death because of the intentional misconduct of prosecutors at the New Orleans District Attorney’s Office, I’m all too familiar with what can go wrong when the enormous power of prosecutors goes unchecked,” said Thompson, Founder and Director of Resurrection After Exoneration and Voices of Innocence.

“My case was not an isolated incident. Of the six men who received the death penalty at the hands of one of my prosecutors, five had their convictions reversed because of prosecutorial misconduct. I know that most prosecutors are as bothered by this behavior as I am, and I call on them to help us find a way to make prosecutors’ offices more accountable,” Thompson said.

Kathleen Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative, added, “Allowing this type of misconduct to persist undercuts public trust and undermines prosecutors who do their jobs properly. Prosecutors – who are no doubt just as concerned about misconduct as we are – are in an excellent position to help identify and correct improper prosecutorial actions. Their input will be invaluable as we move forward with collaborative discussions focused on solving this problem.”

At each stop on the tour, the groups will release new state specific research illustrating the scope of the problem. This research will mirror research that was released last year in California by the Veritas Initiative in Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, which documented 707 instances where an appellate court found misconduct during the 13 year period, but found that only 7 prosecutors were disciplined.

Similar research has been conducted by the Innocence Project in New York State. It concluded that only a tiny fraction of prosecutorial misconduct charges ever result in disciplinary action against the offending attorney.
“There’s no question that prosecutors have tremendous responsibility to protect our safety, but everyone suffers when prosecutors put their zeal for winning above finding the truth. We’ve seen too many situations where the innocent are unjustly punished because of prosecutorial misconduct. The current mechanisms of accountability are not working. These forums are an important step towards reform that is long overdue,” said Angela Davis, professor of law at American University's Washington College of Law and author of Arbitrary Justice: The Power of the American Prosecutor.

Meanwhile, the Death Penalty Information Center (DPIC) is collecting information on pending legislation related to the death penalty. For example, at least nine states will consider bills to repeal the death penalty in 2012. In California, a coalition called Taxpayers for Justice has been collecting signatures to place a death penalty repeal initiative on the ballot in November. Other states considering repeal bills are Connecticut, Florida, Georgia, Kansas, Maryland, Nebraska, and Pennsylvania.