By William Fisher
President George W. Bush appeared headed toward another train wreck with Congress as he carried out his threat to veto an intelligence bill that would have banned the Central Intelligence Agency from using waterboarding and other ‘enhanced interrogation techniques’ in questioning terrorism suspects.
The bill, passed by both the House of Representatives and the Senate, would have limited the CIA to using 19 less-aggressive interrogation tactics outlined in a U.S. Army Field Manual. The measure would have ended the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.
Congress does not appear to have the votes to override the Bush veto, which he announced in his weekly radio address on Saturday. His support comes principally from Senate Republicans, including the Republican presidential nominee, Senator John McCain.
McCain was one of the principal authors and champions of the Detainee Treatment Act of 2006, which banned harsh interrogation techniques by the U.S. military, but did not cover the CIA. President Bush signed the bill into law, but issued a ‘signing statement’ claiming executive authority to ignore the law if it was necessary for national security purposes.
"Staging a mock execution by inducing the misperception of drowning is a clear violation" of laws and treaties, McCain said at the time.
But McCain sided with the Bush administration on the waterboarding ban by the CIA. He said the measure went too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding.
Human rights activists have been sharply critical of McCain’s vote. Typical is Michael Ratner of the Center for Constitutional Rights, a legal advocacy group that has defended a number of detainees at Guantanamo Naval Base in Cuba, and mobilized pro-bono legal representation for many others.
He told us, “That Senator McCain voted against the legislation ending torture -- which included a ban on water torture -- gives lie to the assertion that he cares about fundamental human rights. He is a craven opportunist and worse -- an aider and abettor of torture.”
The two Democratic presidential contenders, Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.), have said waterboarding is clearly illegal and should be banned, but neither voted on the Senate measure because they were campaigning elsewhere.
The Senate passed the bill during the same week in which the Bush administration announced plans to try six prisoners at Guantanamo Bay, Cuba, for alleged involvement in the Sept. 11 attacks. Five of the six were subjected to harsh CIA tactics.
Bush’s veto is the latest battle in the Administration’s war with Congress on the limitations placed by the U.S. Constitution on the executive branch of government. Under the Constitution, Congress is a co-equal branch, as is the Judiciary. Bush has claimed that the Constitution requires him to protect and defend the American people, and that this responsibility requires greatly expanded powers for the White House.
Another ongoing power battle with Congress involved the President’s authorization of the National Security Agency (NSA), one of 16 U.S. intelligence organizations, to conduct surveillance of telephone and email messages without court approval. In 1978, Congress passed the Foreign Surveillance Act (FISA), which set up a special court and required the Administration to secure warrants from that court based on a showing of probable cause. Without approval from the FISA Court, President Bush launched a “terrorist surveillance” program shortly after the attacks of 9/11, recruiting private telecommunications companies to assist in that effort.
Congressional action on a FISA revision is currently being blocked by a debate about whether these telecom companies should receive “retroactive immunity” from prosecution, though President Bush claims they broke no laws.
Waterboarding has become a proxy for these types of expanded executive branch powers. A Justice Department (DOJ) senior official, Steven G. Bradbury, acting head of the DOJ’s Office of Legal Counsel, recently joined his boss, Attorney General Michael Mukasey, in testifying to congress that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."
Waterboarding, a form of mock drowning, has been prosecuted as torture in the U.S. for more than a century. After World War Two, the U.S. prosecuted Japanese soldiers who used the technique against American prisoners of war.
But human rights groups and civil liberties advocates argue that waterboarding amounts to illegal torture.
Prof. David Cole of the Georgetown University law school told us, “It is a tragedy of historic dimensions that the President of the United States has now stood up for torture. After repeatedly insisting that ‘we don't torture’, President Bush has vetoed a bill that would have held the executive branch accountable to that promise. We can only hope that Congress has the will to override this bill, and that the American people have the will to elect a President who is truly committed to getting the CIA out of the torture business.” Cole is one of the nation’s preeminent Constitutional scholars.
His view is echoed by Mary Shaw of Amnesty International USA, who told us that “Use of waterboarding and other ‘enhanced interrogation techniques’ is in clear violation of several domestic and international laws and treaties. The Bush administration must be stopped from using the ‘war on terror’ as an excuse to violate basic human rights. Congress must not let the veto stand.”
A view about what Congress can do in the face of the President’s veto was expressed by the CCR’S Ratner. He told IPS that Congress “does not need a veto proof two-thirds majority to cut funds off from any U.S. agency, e.g. the CIA that engages in practices not authorized by the Army Field Manual. It simply does not need to fund torture -- 51 votes are enough to end funding in the Senate or a similar bare majority in the House. People should not fall for the excuse that Congress needs a veto proof two-thirds to ban torture. It can do it tomorrow without Bush standing in the way. Its failure to do so and its continued furnishing of money for the program implicates Congress in the criminality of torture. The charade of a Democratic congress blaming Bush alone for the torture program is just that—a charade.”
The Army manual forbids eight harsh techniques, including waterboarding, mock executions, use of beatings and electric shocks, forced nakedness and sexual acts, and causing hypothermia or heat injuries.
Some of the most vocal criticism of the Bush administration’s stance on torture has come from former military leaders. More than 30 three- and four-star retired generals have urged the adoption of a single interrogation standard, and warned that the use of abusive interrogation techniques is both ineffective and unwise.
The latest to take this position is Brigadier General James Cullen (Ret.), former Chief Judge of the U.S. Army Court of Criminal Appeals. He recently told Amy Goodman, a radio talk show host, “We hear a lot of arguments to try to justify ‘enhanced interrogation techniques,’ but we know exactly what we’re talking about. It’s torture in different packaging.” He said “torture is just a stupid way of going about it.”
Other military leaders have taken similar positions. General David Petraeus, commanding general of multinational forces in Iraq, recently called the military’s interrogation techniques an effective and humane way to gather information from the enemy.
Monday, March 10, 2008
Saturday, March 08, 2008
IF IT BLEEDS IT LEADS
By William Fisher
This timeless press mantra has not surprisingly emerged as the fuel that drives the engine in the televised presidential debates.
This is the conclusion of media critics, foreign policy experts and human rights advocates, who are charging that questions asked by the moderators of the televised debates among candidates for their party’s presidential nomination were trivial, designed to produce conflict to boost ratings, and ignored many of the most pressing issues facing the U.S.
A typical critique came from Danny Schechter, editor of the Mediachannel.org, a media watchdog organization. He told IPS that the failings of the candidate debates “lie with the whole process which focuses on personalities, media mediated discussions, and what I call ‘electotainment’--stoking conflict--not searching for solutions. Heat, not light.”
His view was echoed by many others who are harshly critical both of moderators for failing to ask a wide range of serious questions and of candidates for failing to raise these questions.
During the 2008 presidential nominating process to date, some 20 debates have been televised. They have been sponsored principally by cable television news channels such as CNN, Fox News and MSNBC, and moderated by TV anchors joined by a few print journalists. When the Democratic Party chooses its candidate – the Republicans have already chosen Senator John McCain of Arizona – the two contenders traditionally participate in at least a few televised debates, as do their running mates for Vice President.
While important subjects were discussed in the nomination debates – health care, world trade, the economy, education, terrorism – a wide range of other areas were largely ignored. The questions never or rarely raised by primary contest debate moderators include such issues as presidential signing statements, the limits of presidential authority, separation of powers, the role of the courts, warrantless wiretapping, rendition, Guantanamo and Military Commissions, secret CIA prisons, and many other civil liberties and human rights issues.
Mary Shaw of Amnesty International USA told us, “It is very important that the candidates honestly share their views and intentions regarding these issues. Debate moderators need to ask these questions, but the candidates themselves should proactively address these issues as well. We were blindly led into a war in Iraq. We cannot afford to be blindly led into further atrocities in our name and with our tax dollars.”
A similar view was expressed by Patricia H. Kushlis, who spent more than 25 years as a U.S. Foreign Service Officer and now co-hosts the widely respected foreign affairs blog “WhirledView.com”. She told IPS that the issues not addressed “are crucial to the survival of American democracy. “
She said, “If, in the televised debates, the presidential candidates are being let off the hook on these and other crucial national issues, then the fault, in my view, lies foremost with the media representatives and organizations conducting and televising the debates. This means, in particular, with the formats chosen, the questions asked, and the ways those questions are framed.”
Many of those we contacted similarly blame the media more than the candidates. Patricia Sharpe, an international affairs specialist in politics, public diplomacy and national security and another co-host of “WhirledView”, told IPS, “I can understand why the candidates might not originate such discussions: They are complex and controversial. What's not easy to understand is why the issues haven't been forced on the candidates by the interlocutors.”
Media Channel’s Schechter agrees. He told us, “TV news just loves covering campaigns. They love to play up any scandals and negatives to throw at the candidates. The more intense the debate the better for ratings. Heat is always a bigger draw than light. Elecotainment rules again.”
For some critics, there is more than enough blame to go round. Brian J. Foley, visiting associate professor at the Drexel University College of Law, told us, “I blame the commentators, but more I blame the candidates themselves. Why are they running for President if not to right these grievous wrongs, the misdeeds and modus operandi of an abusive president?”
A number of academics also have also been critical of the debates. For example, Edward S. Herman, an emeritus professor at the University Pennsylvania, told us, “In a real democracy substantive issues should be central to election debates, as knowing what candidates stand for on such issues ought to be the key basis on which voters choose. This is especially the case today in an election that follows an administration that has run roughshod over constitutional principles, the famous checks-and-balances system, and the rule of law itself. If these matters, including the use of signing statements that implicitly ignore the legislative will, and the right to engage in torture and hold anybody in prison on executive say-so as an ‘enemy combatant,’ cannot be debated, we are in real trouble. And we are.”
In his column, "Media Matters", Jamison Foser, a longtime commentator on the news business, wrote that “only a small handful of questions have touched on the candidates' views on executive power, the Constitution, torture, wiretapping, or other civil liberties concerns.”
He added that there was only one question about wiretapping, no questions about FISA (the Foreign Intelligence Surveillance Act), no questions about rendition, habeas corpus, telecom liability, or the Bush administration's “rather skeptical view of congressional oversight.”
Instead, he says, most of the questions have trivialized the process. He cites examples such as whether the Constitution should be changed to allow Arnold Schwarzenegger (the Austrian-born governor of California) to be president, what costumes the candidates would be wearing for Halloween, and whether former Democratic candidate Congressman Dennis Kucinich had seen a UFO (Unidentified Flying Object).
Foser says, “It's easy to imagine one excuse some journalists will offer for ignoring these matters: The American people just don't care about habeas corpus and wiretapping. They care about ‘likeability’ and whether they'd enjoy having a candidate ‘in their living room’ for the next four years and whether candidates are ‘comfortable in their own skin’. They just don't care about things like the Constitution. That's bunk. Pure bunk, as recent polls demonstrate.”
He cited a poll conducted for the American Civil Liberties Union (ACLU), in which 61 percent of Americans said they think the U.S. government should have to get a warrant before wiretapping conversations between American citizens and people in other countries, and majorities of American voters want the next president to restore habeas corpus, close Guantanamo Bay, not allow the president alone to determine who is an enemy combatant, and end torture as U.S. policy.
“The American people take these things seriously,” he said. “It's time for the journalists who determine what the candidates have to talk about to begin to take them seriously, as well.”
Right. When pigs fly!
This timeless press mantra has not surprisingly emerged as the fuel that drives the engine in the televised presidential debates.
This is the conclusion of media critics, foreign policy experts and human rights advocates, who are charging that questions asked by the moderators of the televised debates among candidates for their party’s presidential nomination were trivial, designed to produce conflict to boost ratings, and ignored many of the most pressing issues facing the U.S.
A typical critique came from Danny Schechter, editor of the Mediachannel.org, a media watchdog organization. He told IPS that the failings of the candidate debates “lie with the whole process which focuses on personalities, media mediated discussions, and what I call ‘electotainment’--stoking conflict--not searching for solutions. Heat, not light.”
His view was echoed by many others who are harshly critical both of moderators for failing to ask a wide range of serious questions and of candidates for failing to raise these questions.
During the 2008 presidential nominating process to date, some 20 debates have been televised. They have been sponsored principally by cable television news channels such as CNN, Fox News and MSNBC, and moderated by TV anchors joined by a few print journalists. When the Democratic Party chooses its candidate – the Republicans have already chosen Senator John McCain of Arizona – the two contenders traditionally participate in at least a few televised debates, as do their running mates for Vice President.
While important subjects were discussed in the nomination debates – health care, world trade, the economy, education, terrorism – a wide range of other areas were largely ignored. The questions never or rarely raised by primary contest debate moderators include such issues as presidential signing statements, the limits of presidential authority, separation of powers, the role of the courts, warrantless wiretapping, rendition, Guantanamo and Military Commissions, secret CIA prisons, and many other civil liberties and human rights issues.
Mary Shaw of Amnesty International USA told us, “It is very important that the candidates honestly share their views and intentions regarding these issues. Debate moderators need to ask these questions, but the candidates themselves should proactively address these issues as well. We were blindly led into a war in Iraq. We cannot afford to be blindly led into further atrocities in our name and with our tax dollars.”
A similar view was expressed by Patricia H. Kushlis, who spent more than 25 years as a U.S. Foreign Service Officer and now co-hosts the widely respected foreign affairs blog “WhirledView.com”. She told IPS that the issues not addressed “are crucial to the survival of American democracy. “
She said, “If, in the televised debates, the presidential candidates are being let off the hook on these and other crucial national issues, then the fault, in my view, lies foremost with the media representatives and organizations conducting and televising the debates. This means, in particular, with the formats chosen, the questions asked, and the ways those questions are framed.”
Many of those we contacted similarly blame the media more than the candidates. Patricia Sharpe, an international affairs specialist in politics, public diplomacy and national security and another co-host of “WhirledView”, told IPS, “I can understand why the candidates might not originate such discussions: They are complex and controversial. What's not easy to understand is why the issues haven't been forced on the candidates by the interlocutors.”
Media Channel’s Schechter agrees. He told us, “TV news just loves covering campaigns. They love to play up any scandals and negatives to throw at the candidates. The more intense the debate the better for ratings. Heat is always a bigger draw than light. Elecotainment rules again.”
For some critics, there is more than enough blame to go round. Brian J. Foley, visiting associate professor at the Drexel University College of Law, told us, “I blame the commentators, but more I blame the candidates themselves. Why are they running for President if not to right these grievous wrongs, the misdeeds and modus operandi of an abusive president?”
A number of academics also have also been critical of the debates. For example, Edward S. Herman, an emeritus professor at the University Pennsylvania, told us, “In a real democracy substantive issues should be central to election debates, as knowing what candidates stand for on such issues ought to be the key basis on which voters choose. This is especially the case today in an election that follows an administration that has run roughshod over constitutional principles, the famous checks-and-balances system, and the rule of law itself. If these matters, including the use of signing statements that implicitly ignore the legislative will, and the right to engage in torture and hold anybody in prison on executive say-so as an ‘enemy combatant,’ cannot be debated, we are in real trouble. And we are.”
In his column, "Media Matters", Jamison Foser, a longtime commentator on the news business, wrote that “only a small handful of questions have touched on the candidates' views on executive power, the Constitution, torture, wiretapping, or other civil liberties concerns.”
He added that there was only one question about wiretapping, no questions about FISA (the Foreign Intelligence Surveillance Act), no questions about rendition, habeas corpus, telecom liability, or the Bush administration's “rather skeptical view of congressional oversight.”
Instead, he says, most of the questions have trivialized the process. He cites examples such as whether the Constitution should be changed to allow Arnold Schwarzenegger (the Austrian-born governor of California) to be president, what costumes the candidates would be wearing for Halloween, and whether former Democratic candidate Congressman Dennis Kucinich had seen a UFO (Unidentified Flying Object).
Foser says, “It's easy to imagine one excuse some journalists will offer for ignoring these matters: The American people just don't care about habeas corpus and wiretapping. They care about ‘likeability’ and whether they'd enjoy having a candidate ‘in their living room’ for the next four years and whether candidates are ‘comfortable in their own skin’. They just don't care about things like the Constitution. That's bunk. Pure bunk, as recent polls demonstrate.”
He cited a poll conducted for the American Civil Liberties Union (ACLU), in which 61 percent of Americans said they think the U.S. government should have to get a warrant before wiretapping conversations between American citizens and people in other countries, and majorities of American voters want the next president to restore habeas corpus, close Guantanamo Bay, not allow the president alone to determine who is an enemy combatant, and end torture as U.S. policy.
“The American people take these things seriously,” he said. “It's time for the journalists who determine what the candidates have to talk about to begin to take them seriously, as well.”
Right. When pigs fly!
Tuesday, March 04, 2008
NO TRIVIA LEFT BEHIND
By William Fisher
In this space a few weeks ago, I ranted about the sleep-inducing irrelevance of the so-called “debates” among the presidential wanabees. I vowed never to watch another. But, like some mega-testosteroned dude lusting after a Dallas Cowboys cheerleader, my resolution collapsed in a wonky heap.
And I ended up watching all twenty!
So what did I hear?
Puerile arguments about Experience versus Change. Fighting Special Interests. Politics-as-usual versus magically creating some kind of national consensus accompanied by “Celestial Choirs.”
Dumbed-down soundbites about Health Care. Jobs. Gas prices. The mortgage crisis. NAFTA. The Iraq War. The Global War on Terror. Each candidate would, of course, solve each of these problems with dispatch – especially if the phone rang at three in the morning.
Are these important issues? Sure. But the notion of laying out real policies in 90 seconds is patently absurd. The demeanor of the candidates was more about burnishing their presidential personas than about how they would deal with these incredibly complex problems. Their rhetoric was less about telling us their solutions than about a race to the bottom.
But the candidates are not the sole culprits in this performance of Kabuki Theater. A large part of the responsibility for the irrelevance of most of these “debates” rests with the well-coiffed TV anchors and less spiffy print journalists who hosted them.
After all, they and their producers are the ones who came up with the formats. And they’re the ones who carefully crafted the “gotcha” questions.
Their consuming interest is not about helping to inform the American people. It’s about ratings, which means money. It’s about rushing to print with self-laudatory press releases, which means celebrity and notoriety. And more money.
But the most maddening part of these quadrennial spectacles is what was never asked or answered.
For the past seven-plus years, we’ve had a president who, with the stroke of a pen, has decided which parts of which laws he would obey. Yet a new study by the watchdog group “Media Matters for America” reported that Democratic and Republican candidates have been asked few if any questions about the limits of executive power, the checks and balances of the Constitution, torture, wiretapping, and a ton of other civil liberties concerns.
For the past seven-plus years, we’ve had a president who has trashed science about stem cell research, about Terry Schiavo and end-of-life issues, about humankind’s role in creating greenhouse gasses, and about the efficacy of “abstinence only” programs.
For the past seven years-plus, we’ve had a president who cozied up to ruthless dictators so long as they promised to partner with us to defeat the jihadists.
A president who struck back at Afghanistan, the safe haven of those who attacked us on 9/11 – and then took his eye off the ball by ignoring the United Nations and invading Iraq on the basis of over-hyped and bogus “evidence.”
A president who gave us Abu Ghraib and Guantanamo and secret CIA prisons and waterboarding.
A president who has acted as if ethnic profiling didn’t exist and the race issue was solved by Abraham Lincoln.
A president who piously pronounced his approval of a two-state solution to the Israeli-Palestinian disaster, inserted a caveat about how the parties have to adjust to the new realities on the ground (encouraging still more Israeli settlements), and then waited until his legacy-building last year in office to take any affirmative steps to solve this 45-year-old travesty.
A president who has appointed grossly unqualified party cronies to run our government.
A president who has seen the most precipitous worldwide collapse of respect for America in our history.
Yet, by my count, there has been only one question about wiretapping. One about global warming. One about how to bring an end to the Israeli-Palestinian disaster. And there has not been a single question about the Foreign Intelligence Surveillance Act. Or renditions. Or habeas corpus. Or torture. Or whether telecom companies should be granted retroactive immunity for their role in domestic spying. Or stem cell research. Or America’s public diplomacy strategy. Or about any of the plethora of issues whose solutions will influence the contours of our society and help determine our place in the world for the generation to come.
Instead, we were treated to such inconsequential distractions as the truly intellectually challenging colloquy about whether Senator Obama simply denounced the praise he got from Louis Farrakhan or both denounced and rejected it. (He chose the twofer.)
Someone once defined leadership as telling us not what we want to hear but what we need to hear. By that standard, the candidates, the debate hosts, and the media who reported the debates, have all been an embarrassing failure.
Don’t our voters deserve a lot better?
In this space a few weeks ago, I ranted about the sleep-inducing irrelevance of the so-called “debates” among the presidential wanabees. I vowed never to watch another. But, like some mega-testosteroned dude lusting after a Dallas Cowboys cheerleader, my resolution collapsed in a wonky heap.
And I ended up watching all twenty!
So what did I hear?
Puerile arguments about Experience versus Change. Fighting Special Interests. Politics-as-usual versus magically creating some kind of national consensus accompanied by “Celestial Choirs.”
Dumbed-down soundbites about Health Care. Jobs. Gas prices. The mortgage crisis. NAFTA. The Iraq War. The Global War on Terror. Each candidate would, of course, solve each of these problems with dispatch – especially if the phone rang at three in the morning.
Are these important issues? Sure. But the notion of laying out real policies in 90 seconds is patently absurd. The demeanor of the candidates was more about burnishing their presidential personas than about how they would deal with these incredibly complex problems. Their rhetoric was less about telling us their solutions than about a race to the bottom.
But the candidates are not the sole culprits in this performance of Kabuki Theater. A large part of the responsibility for the irrelevance of most of these “debates” rests with the well-coiffed TV anchors and less spiffy print journalists who hosted them.
After all, they and their producers are the ones who came up with the formats. And they’re the ones who carefully crafted the “gotcha” questions.
Their consuming interest is not about helping to inform the American people. It’s about ratings, which means money. It’s about rushing to print with self-laudatory press releases, which means celebrity and notoriety. And more money.
But the most maddening part of these quadrennial spectacles is what was never asked or answered.
For the past seven-plus years, we’ve had a president who, with the stroke of a pen, has decided which parts of which laws he would obey. Yet a new study by the watchdog group “Media Matters for America” reported that Democratic and Republican candidates have been asked few if any questions about the limits of executive power, the checks and balances of the Constitution, torture, wiretapping, and a ton of other civil liberties concerns.
For the past seven-plus years, we’ve had a president who has trashed science about stem cell research, about Terry Schiavo and end-of-life issues, about humankind’s role in creating greenhouse gasses, and about the efficacy of “abstinence only” programs.
For the past seven years-plus, we’ve had a president who cozied up to ruthless dictators so long as they promised to partner with us to defeat the jihadists.
A president who struck back at Afghanistan, the safe haven of those who attacked us on 9/11 – and then took his eye off the ball by ignoring the United Nations and invading Iraq on the basis of over-hyped and bogus “evidence.”
A president who gave us Abu Ghraib and Guantanamo and secret CIA prisons and waterboarding.
A president who has acted as if ethnic profiling didn’t exist and the race issue was solved by Abraham Lincoln.
A president who piously pronounced his approval of a two-state solution to the Israeli-Palestinian disaster, inserted a caveat about how the parties have to adjust to the new realities on the ground (encouraging still more Israeli settlements), and then waited until his legacy-building last year in office to take any affirmative steps to solve this 45-year-old travesty.
A president who has appointed grossly unqualified party cronies to run our government.
A president who has seen the most precipitous worldwide collapse of respect for America in our history.
Yet, by my count, there has been only one question about wiretapping. One about global warming. One about how to bring an end to the Israeli-Palestinian disaster. And there has not been a single question about the Foreign Intelligence Surveillance Act. Or renditions. Or habeas corpus. Or torture. Or whether telecom companies should be granted retroactive immunity for their role in domestic spying. Or stem cell research. Or America’s public diplomacy strategy. Or about any of the plethora of issues whose solutions will influence the contours of our society and help determine our place in the world for the generation to come.
Instead, we were treated to such inconsequential distractions as the truly intellectually challenging colloquy about whether Senator Obama simply denounced the praise he got from Louis Farrakhan or both denounced and rejected it. (He chose the twofer.)
Someone once defined leadership as telling us not what we want to hear but what we need to hear. By that standard, the candidates, the debate hosts, and the media who reported the debates, have all been an embarrassing failure.
Don’t our voters deserve a lot better?
Sunday, March 02, 2008
ASYLUM: THE LATEST THIRD RAIL
By William Fisher
In January 2006 – on the heels of reports of widespread incompetence, injustice, and political cronyism among the judges who decide the fate of thousands of immigrants seeking asylum in the United States – the then Attorney General, Alberto Gonzales, announced a sweeping review of the entire asylum process. Six months later, Gonzales mandated a series of new guidelines and initiatives to improve the system and said he was “reassured of the talent and professionalism” of the judges and the fairness of the system.
But today, more than two years later, immigration law experts and human rights advocates charge that there has been little real change. They say that people forced to flee to the U.S. to escape torture and political or religious persecution continue to face a deeply flawed, ideologically-driven, and bureaucratically daunting process that is more likely than not to order them back to the countries from which they fled.
Prof. Philip Schrag, an immigration law expert and professor at the Georgetown University law school, told IPS, “The attorney general declared that the objective of improving the process had been met, but stated no specifics, and I am not aware that anything has changed in practice.” Schrag is one the three authors of “Refugee Roulette,” a 2007 landmark study of the shortcomings of the U.S. asylum system.
Among Gonzales’ instructions: Periodic performance evaluations to review the work of each immigration judge and member of the Board of Immigration Appeals; an immigration law exam to ensure that all immigration judges are proficient in the key principles of immigration law; and increased funding to hire more immigration judges, staff attorneys and judicial law clerks; and technological improvements to increase the Immigration Courts’ ability to record, transcribe, and interpret court proceedings.
Given America’s current anti-immigrant environment, the asylum issue is seen by elected office-holders and government officials as a political third rail that receives scant attention from the media.
The issue flared up again briefly last spring. In connection with the firestorm accompanying revelations of the DOJ’s firing of eight U.S. Attorneys, a Bush appointee, former DOJ aide Monica Goodling, told the House of Representatives Judiciary Committee that she "crossed the line" in considering political affiliation for several categories of career applicants at the DOJ, including immigration judges.
But even before Goodling’s explosive testimony, Bush-appointed DOJ lawyers said they had considered political affiliation in screening applicants for immigration court judgeships for several years – until the department’s career lawyers objected. That could mean that the DOJ may have violated civil service laws, which prohibit political considerations in hiring.
In the two years preceding Goodling’s testimony, Gonzales appointed 49 of 226 current judges in the nation’s 54 immigration courts – many without any background in immigration law. They included a former treasurer of the Louisiana Republican Party, who was a legal advisor to the Bush Florida recount team after the 2000 presidential election, a former GOP congressional aide who had tracked voter fraud issues for the DOJ, and a Texan appointed by then-Gov. George W. Bush to a seat on the state library commission. Many others among the nation's more than 200 immigration judges lack immigration experience.
The result – coupled with what has been termed a Byzantine adjudication process – is that asylum seekers face huge disparities between courts and even among judges in the same courts. Prof. Schrag’s study found that their fate is being influenced less by the merits of their claims and more by such factors as the location of the court and the gender and professional background of judges.
While immigration officers at Citizenship and Immigration Services, part of the Department of Homeland Security (DHS) have the authority to grant asylum, the majority of asylum cases are referred to and decided by the immigration judges.
If an asylum-seeker’s claim is rejected by the immigration judges, it can be appealed to the Board of Immigration Appeals, whose members are also appointed by the Justice Department. If the claimant fails there, he or she can appeal their case to a U.S. federal appeals court. These appeals stand a far higher chance of being accepted if the claimant has a lawyer – but most asylum-seekers don’t have lawyers.
Federal judges have been among the harshest critics of immigration judges. For example, last year the Seventh Circuit Court of Appeals delivered another in a series of stinging rebukes to the immigration courts and Board of Immigration Appeals (BIA). They ordered a review of a case of a Lebanese asylum seeker and called for the DOJ to allocate more resources to ensure that immigrants receive fair review of their cases.
The asylum-seeker feared he would be persecuted if forced to return to his home country. His case was first denied in immigration court in 2005. After fighting broke out in Lebanon between Israel and Hezbollah-blocked insurgents in 2006, he attempted to reopen the case based on changed country conditions. The BIA denied his motion to reopen, declining to give due weight to the changed circumstances.
A Seventh Circuit judge wrote, "The petitioner's evidence concerned dramatic, portentous events that had occurred after the administrative record was closed, and so could not have been discovered before the July 2005 hearing." The judge said, “The Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions."
Last year alone, the Seventh Circuit has overturned two other BIA decisions on grounds that the board failed to give reasoned consideration to post-hearing evidence.
The BIA’s decision-making process is among Prof. Schrag’s principal concerns. He told IPS, “The BIA has moved steadily away from summary affirmances, but they have been replaced mainly by one-judge brief decisions, a conclusory paragraph rather than a few pages, so in many cases they don’t really deal with the losing party’s arguments.”
The “Refugee Roulette” study analyzed 140,000 decisions by immigration judges over four years, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia.
The study found vast differences in the handling of claims with generally comparable factual circumstances. In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court. It also found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.
The study also found wide variations in decisions based on the judge’s gender and by judges in the same location. For example, one male immigration judge currently on the Miami court granted only three percent of the asylum cases he heard -- the second-toughest judge in the nation on asylum issues. A female judge, who hears cases at the Krome North detention center in Miami, granted 59 percent of the asylum claims she considered, placing her in the top 15 percent of judges approving such claims.
According to Prof. Schrag, “It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge.”
This ball is now squarely in the court of Michael Mukasey, our newest AG. We wonder if he’ll defy the third rail and actually get something done.
Watch this space.
In January 2006 – on the heels of reports of widespread incompetence, injustice, and political cronyism among the judges who decide the fate of thousands of immigrants seeking asylum in the United States – the then Attorney General, Alberto Gonzales, announced a sweeping review of the entire asylum process. Six months later, Gonzales mandated a series of new guidelines and initiatives to improve the system and said he was “reassured of the talent and professionalism” of the judges and the fairness of the system.
But today, more than two years later, immigration law experts and human rights advocates charge that there has been little real change. They say that people forced to flee to the U.S. to escape torture and political or religious persecution continue to face a deeply flawed, ideologically-driven, and bureaucratically daunting process that is more likely than not to order them back to the countries from which they fled.
Prof. Philip Schrag, an immigration law expert and professor at the Georgetown University law school, told IPS, “The attorney general declared that the objective of improving the process had been met, but stated no specifics, and I am not aware that anything has changed in practice.” Schrag is one the three authors of “Refugee Roulette,” a 2007 landmark study of the shortcomings of the U.S. asylum system.
Among Gonzales’ instructions: Periodic performance evaluations to review the work of each immigration judge and member of the Board of Immigration Appeals; an immigration law exam to ensure that all immigration judges are proficient in the key principles of immigration law; and increased funding to hire more immigration judges, staff attorneys and judicial law clerks; and technological improvements to increase the Immigration Courts’ ability to record, transcribe, and interpret court proceedings.
Given America’s current anti-immigrant environment, the asylum issue is seen by elected office-holders and government officials as a political third rail that receives scant attention from the media.
The issue flared up again briefly last spring. In connection with the firestorm accompanying revelations of the DOJ’s firing of eight U.S. Attorneys, a Bush appointee, former DOJ aide Monica Goodling, told the House of Representatives Judiciary Committee that she "crossed the line" in considering political affiliation for several categories of career applicants at the DOJ, including immigration judges.
But even before Goodling’s explosive testimony, Bush-appointed DOJ lawyers said they had considered political affiliation in screening applicants for immigration court judgeships for several years – until the department’s career lawyers objected. That could mean that the DOJ may have violated civil service laws, which prohibit political considerations in hiring.
In the two years preceding Goodling’s testimony, Gonzales appointed 49 of 226 current judges in the nation’s 54 immigration courts – many without any background in immigration law. They included a former treasurer of the Louisiana Republican Party, who was a legal advisor to the Bush Florida recount team after the 2000 presidential election, a former GOP congressional aide who had tracked voter fraud issues for the DOJ, and a Texan appointed by then-Gov. George W. Bush to a seat on the state library commission. Many others among the nation's more than 200 immigration judges lack immigration experience.
The result – coupled with what has been termed a Byzantine adjudication process – is that asylum seekers face huge disparities between courts and even among judges in the same courts. Prof. Schrag’s study found that their fate is being influenced less by the merits of their claims and more by such factors as the location of the court and the gender and professional background of judges.
While immigration officers at Citizenship and Immigration Services, part of the Department of Homeland Security (DHS) have the authority to grant asylum, the majority of asylum cases are referred to and decided by the immigration judges.
If an asylum-seeker’s claim is rejected by the immigration judges, it can be appealed to the Board of Immigration Appeals, whose members are also appointed by the Justice Department. If the claimant fails there, he or she can appeal their case to a U.S. federal appeals court. These appeals stand a far higher chance of being accepted if the claimant has a lawyer – but most asylum-seekers don’t have lawyers.
Federal judges have been among the harshest critics of immigration judges. For example, last year the Seventh Circuit Court of Appeals delivered another in a series of stinging rebukes to the immigration courts and Board of Immigration Appeals (BIA). They ordered a review of a case of a Lebanese asylum seeker and called for the DOJ to allocate more resources to ensure that immigrants receive fair review of their cases.
The asylum-seeker feared he would be persecuted if forced to return to his home country. His case was first denied in immigration court in 2005. After fighting broke out in Lebanon between Israel and Hezbollah-blocked insurgents in 2006, he attempted to reopen the case based on changed country conditions. The BIA denied his motion to reopen, declining to give due weight to the changed circumstances.
A Seventh Circuit judge wrote, "The petitioner's evidence concerned dramatic, portentous events that had occurred after the administrative record was closed, and so could not have been discovered before the July 2005 hearing." The judge said, “The Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions."
Last year alone, the Seventh Circuit has overturned two other BIA decisions on grounds that the board failed to give reasoned consideration to post-hearing evidence.
The BIA’s decision-making process is among Prof. Schrag’s principal concerns. He told IPS, “The BIA has moved steadily away from summary affirmances, but they have been replaced mainly by one-judge brief decisions, a conclusory paragraph rather than a few pages, so in many cases they don’t really deal with the losing party’s arguments.”
The “Refugee Roulette” study analyzed 140,000 decisions by immigration judges over four years, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia.
The study found vast differences in the handling of claims with generally comparable factual circumstances. In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court. It also found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.
The study also found wide variations in decisions based on the judge’s gender and by judges in the same location. For example, one male immigration judge currently on the Miami court granted only three percent of the asylum cases he heard -- the second-toughest judge in the nation on asylum issues. A female judge, who hears cases at the Krome North detention center in Miami, granted 59 percent of the asylum claims she considered, placing her in the top 15 percent of judges approving such claims.
According to Prof. Schrag, “It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge.”
This ball is now squarely in the court of Michael Mukasey, our newest AG. We wonder if he’ll defy the third rail and actually get something done.
Watch this space.
Saturday, March 01, 2008
UNSPINNING THE PRESIDENT
By William Fisher
At his news conference earlier this week, President Bush was in his relentless mode in insisting that the failures of Congress to pass a new domestic surveillance law put us all in dire peril.
“There Will Be Blood,” he seemed to be warning. The critical intelligence we’ve already missed while our lawmakers bicker will never come back. We just won’t know if another 9/11 is being hatched somewhere in the world.
Be afraid. Be very afraid. That was Mr. Bush’s message.
But, in case you’ve only been reading the mainstream press, you might not know that there are many veteran counter-terrorism experts and legal scholars who aren’t buying Dubya’s rantings.
Four of them recently wrote to Admiral Mike McConnell, the Director of National Intelligence, to assert that “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
As we all know, this latest controversy was triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
And by Georgetown law professor David Cole, one of the nation’s preeminent Constitutional scholars. He told us: “The Bush administration has only itself to blame if there were any national security consequences from the sunsetting of the Protect America Act, as the Democrats were willing to extend the sunset until a workable compromise on permanent legislation could be worked out. If the Bush administration's national security claims are to be believed, then, it is the administration that has decided to play a game of chicken with our security. In fact, all taps authorized under the PAA will continue in place, and FISA permits the administration to place new taps on any newly identified terrorist, so there is no national security risk presented.”
But how about the poor telecom companies? Well, the question we put to Prof. Cole was this: “Wouldn't you think someone in the army of telecom lawyers understood that what the president was asking them to do was illegal and in violation of the FISA statute?”
His answer couldn’t have been more Gary Cooperish:
“Yup.”
At his news conference earlier this week, President Bush was in his relentless mode in insisting that the failures of Congress to pass a new domestic surveillance law put us all in dire peril.
“There Will Be Blood,” he seemed to be warning. The critical intelligence we’ve already missed while our lawmakers bicker will never come back. We just won’t know if another 9/11 is being hatched somewhere in the world.
Be afraid. Be very afraid. That was Mr. Bush’s message.
But, in case you’ve only been reading the mainstream press, you might not know that there are many veteran counter-terrorism experts and legal scholars who aren’t buying Dubya’s rantings.
Four of them recently wrote to Admiral Mike McConnell, the Director of National Intelligence, to assert that “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
As we all know, this latest controversy was triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
And by Georgetown law professor David Cole, one of the nation’s preeminent Constitutional scholars. He told us: “The Bush administration has only itself to blame if there were any national security consequences from the sunsetting of the Protect America Act, as the Democrats were willing to extend the sunset until a workable compromise on permanent legislation could be worked out. If the Bush administration's national security claims are to be believed, then, it is the administration that has decided to play a game of chicken with our security. In fact, all taps authorized under the PAA will continue in place, and FISA permits the administration to place new taps on any newly identified terrorist, so there is no national security risk presented.”
But how about the poor telecom companies? Well, the question we put to Prof. Cole was this: “Wouldn't you think someone in the army of telecom lawyers understood that what the president was asking them to do was illegal and in violation of the FISA statute?”
His answer couldn’t have been more Gary Cooperish:
“Yup.”
Wednesday, February 27, 2008
ARE WE SAFER NOW? OR NOT?
By William Fisher
Former senior level intelligence officials are disputing claims by the Bush Administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing America’s national security.
In a letter to Admiral Mike McConnell, the Director of National Intelligence, the officials say “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, who told us, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told us, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
Former senior level intelligence officials are disputing claims by the Bush Administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing America’s national security.
In a letter to Admiral Mike McConnell, the Director of National Intelligence, the officials say “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, who told us, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told us, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
Saudi Arabian "Justice"
By Mona Eltahawy
If justice really was a woman she would not survive long in Saudi Arabia.
Between the Kafkaesque-sounding Committee to Promote Virtue and Prevent Vice and its infamous morality police, and the hardline Wahhabi clerics who serve as judges with wide-ranging powers run amok in the absence of a written penal code, justice couldn’t stand a chance in the royal kingdom.
More barbaric than Kafkaesque is the case of Fawzia Falih, a 51-year-old Saudi citizen of Jordanian origin who is awaiting public execution -- by beheading -- for “witchcraft.” She had already been hospitalized from weeks of beatings by the morality police (the mutaween) prior to her conviction in April 2006.
Judges sentenced her to death based on a confession extracted during those beatings. Falih, who is illiterate, was made to fingerprint that confession although she could not read what it said. One witness against her was a man who claimed he had suddenly become impotent after Falih “bewitched” him.
In a rare moment of lucidity in September 2006, an appeals court threw out her capital conviction after Falih retracted the confession. But a lower court later ruled she should be executed in the “public interest.”
It would be macabre to call Falih lucky, but at least she understood the proceedings against her. I doubt that Rizana Nafeek, a Sri Lankan maid who just turned 20, understood a word of her “trial” which sentenced her to be beheaded.
Nafeek was accused of murdering a baby -- who she says choked as she was feeding it. She was only 17 at the time. She had no access to lawyers during either her interrogation or her trial. Like Falih, Nafeek also retracted a “confession” extracted during police questioning.
A Saudi court is said to be considering Nafeek’s appeal but human rights organizations are concerned because of Saudi Arabia’s alarmingly high rates of execution. At least 26 people, including three women, have been executed since 8 January, and at least 158 people -- including three women -- were executed in Saudi Arabia in 2007.
As those groups point out, Nafeek’s execution would be in contravention of the United Nations Convention on the Rights of the Child which prohibits the execution of offenders for crimes committed when they were under 18 years old.
In its complete mockery of justice, Saudi Arabia ignores these UN conventions -- even the ones it has signed. In 2000, it ratified an international bill of rights for women but stipulated that Islamic law (Sharia) would prevail if there were conflicts with its provisions.
A farce played out in Geneva earlier this year, when a Saudi delegation appeared for the first time before the UN women’s rights panel. Finally an international body grilled the Saudis to explain why, in the 21st century, women have to have a male guardian’s permission to do almost everything in the kingdom, and why women cannot drive.
It was absurd to hear the Saudis insist that women in their country faced no discrimination. But the most ludicrous claim came when the UN committee asked why Saudi men could marry up to four wives. With a straight face, a Saudi delegate -- a man of course -- explained that it was to ensure a man’s sexual appetite was satisfied legally if one wife could not fulfill it.
Not surprisingly, the UN special rapporteur on violence against women, Yakin Erturk, soon went to Saudi Arabia on a 10-day fact-finding mission. She criticized the mutaween and the cleric-judges, mentioning two more cases of women whose treatment at the hands of those entities is nothing short of surreal.
Erturk met with Fatima Azzaz who was forced to separate from her husband Mansour al-Timani in 2006 after her brothers persuaded judges that Timani was from a lesser tribe. Azzaz is being held in a government home for orphans with a young son. She refuses to return to her family home as required by a court order divorcing her from her husband, who has custody of their daughter.
One of the latest atrocities of the mutaween was the arrest in early February of a businesswoman known only as Yara, a 40-year-old mother of three, for sitting in a Starbucks coffee shop in Riyadh with a male colleague. She told the English-language daily Arab News she was taken to a prison, strip-searched and forced to sign a confession of being caught alone with an unrelated man. Yara said the morality police released her several hours later after her husband intervened. The man with whom Yara had coffee, an unidentified Syrian financial analyst, had also been arrested and released the following day.
As these cases show, a grilling by a UN watchdog and a fact-finding mission to explore the miserable state of women’s rights in Saudi Arabia were long overdue. But they are meaningless when Saudi Arabia daily abuses the very rights it has promised to uphold. It must choose -- either its Wahhabi 'justice' or international conventions.
By forcing it to choose, the civilized world supports Saudis who refuse to be intimidated by the morality police and the Wahhabi judges. Last year, several Saudis sued the mutaween for their abuses But my favorite story is of two young women out shopping last year who were chided by the mutaween apparently for wearing makeup. One of the young women pulled out a can of pepper spray and she emptied it into the face of the morality police as her friend filmed the incident with her mobile phone while calling the mutaween "terrorists."
You can't say Saudi women aren't fighting back.
Mona Eltahawy is an award-winning New York-based journalist and commentator, and an international lecturer on Arab and Muslim issues.
If justice really was a woman she would not survive long in Saudi Arabia.
Between the Kafkaesque-sounding Committee to Promote Virtue and Prevent Vice and its infamous morality police, and the hardline Wahhabi clerics who serve as judges with wide-ranging powers run amok in the absence of a written penal code, justice couldn’t stand a chance in the royal kingdom.
More barbaric than Kafkaesque is the case of Fawzia Falih, a 51-year-old Saudi citizen of Jordanian origin who is awaiting public execution -- by beheading -- for “witchcraft.” She had already been hospitalized from weeks of beatings by the morality police (the mutaween) prior to her conviction in April 2006.
Judges sentenced her to death based on a confession extracted during those beatings. Falih, who is illiterate, was made to fingerprint that confession although she could not read what it said. One witness against her was a man who claimed he had suddenly become impotent after Falih “bewitched” him.
In a rare moment of lucidity in September 2006, an appeals court threw out her capital conviction after Falih retracted the confession. But a lower court later ruled she should be executed in the “public interest.”
It would be macabre to call Falih lucky, but at least she understood the proceedings against her. I doubt that Rizana Nafeek, a Sri Lankan maid who just turned 20, understood a word of her “trial” which sentenced her to be beheaded.
Nafeek was accused of murdering a baby -- who she says choked as she was feeding it. She was only 17 at the time. She had no access to lawyers during either her interrogation or her trial. Like Falih, Nafeek also retracted a “confession” extracted during police questioning.
A Saudi court is said to be considering Nafeek’s appeal but human rights organizations are concerned because of Saudi Arabia’s alarmingly high rates of execution. At least 26 people, including three women, have been executed since 8 January, and at least 158 people -- including three women -- were executed in Saudi Arabia in 2007.
As those groups point out, Nafeek’s execution would be in contravention of the United Nations Convention on the Rights of the Child which prohibits the execution of offenders for crimes committed when they were under 18 years old.
In its complete mockery of justice, Saudi Arabia ignores these UN conventions -- even the ones it has signed. In 2000, it ratified an international bill of rights for women but stipulated that Islamic law (Sharia) would prevail if there were conflicts with its provisions.
A farce played out in Geneva earlier this year, when a Saudi delegation appeared for the first time before the UN women’s rights panel. Finally an international body grilled the Saudis to explain why, in the 21st century, women have to have a male guardian’s permission to do almost everything in the kingdom, and why women cannot drive.
It was absurd to hear the Saudis insist that women in their country faced no discrimination. But the most ludicrous claim came when the UN committee asked why Saudi men could marry up to four wives. With a straight face, a Saudi delegate -- a man of course -- explained that it was to ensure a man’s sexual appetite was satisfied legally if one wife could not fulfill it.
Not surprisingly, the UN special rapporteur on violence against women, Yakin Erturk, soon went to Saudi Arabia on a 10-day fact-finding mission. She criticized the mutaween and the cleric-judges, mentioning two more cases of women whose treatment at the hands of those entities is nothing short of surreal.
Erturk met with Fatima Azzaz who was forced to separate from her husband Mansour al-Timani in 2006 after her brothers persuaded judges that Timani was from a lesser tribe. Azzaz is being held in a government home for orphans with a young son. She refuses to return to her family home as required by a court order divorcing her from her husband, who has custody of their daughter.
One of the latest atrocities of the mutaween was the arrest in early February of a businesswoman known only as Yara, a 40-year-old mother of three, for sitting in a Starbucks coffee shop in Riyadh with a male colleague. She told the English-language daily Arab News she was taken to a prison, strip-searched and forced to sign a confession of being caught alone with an unrelated man. Yara said the morality police released her several hours later after her husband intervened. The man with whom Yara had coffee, an unidentified Syrian financial analyst, had also been arrested and released the following day.
As these cases show, a grilling by a UN watchdog and a fact-finding mission to explore the miserable state of women’s rights in Saudi Arabia were long overdue. But they are meaningless when Saudi Arabia daily abuses the very rights it has promised to uphold. It must choose -- either its Wahhabi 'justice' or international conventions.
By forcing it to choose, the civilized world supports Saudis who refuse to be intimidated by the morality police and the Wahhabi judges. Last year, several Saudis sued the mutaween for their abuses But my favorite story is of two young women out shopping last year who were chided by the mutaween apparently for wearing makeup. One of the young women pulled out a can of pepper spray and she emptied it into the face of the morality police as her friend filmed the incident with her mobile phone while calling the mutaween "terrorists."
You can't say Saudi women aren't fighting back.
Mona Eltahawy is an award-winning New York-based journalist and commentator, and an international lecturer on Arab and Muslim issues.
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