By William Fisher
Despite a sentence that effectively means convicted war criminal Salim Hamdan could be a free man before the end of this year, the future of Osama bin Laden’s driver is far from clear.
Found guilty on Wednesday of providing “material support” for a terrorist organization, al Qaida -- but acquitted on the more serious charge of conspiracy that alleged he was part of the al-Qaida effort to attack the United States -- a panel of six Pentagon-appointed military officers sentenced the 40-year-old Yemeni to five and a half years in prison. Given credit for the five years he has already served at the U.S. Navy’s detention center at Guantanamo Bay, Cuba, Hamdan’s release date could be later this year.
But the Bush Administration has said it has no intention of releasing Hamdan. Since he has been designated an “unlawful enemy combatant,” he could be held until the end of the ‘war on terror.” And what would constitute that “end” remains undefined.
What appears clear is that, if Hamdan is to be held beyond his release date, his attorneys will appeal to both the U.S. military and civilian court systems.
Hamdan’s was the first trial held at Guantanamo in seven years, and the first convened by the U.S. since Nazi leaders were tried at Nuremberg after World War Two. Government prosecutors had asked for a sentence of 30 years to life in prison.
In the aftermath of Hamdan’s trial, human rights groups and legal scholars voiced sharp criticism of the trial and the process through which Hamdan was brought to trial, and predicted that his legal journey was far from over.
Critics said the trial, which featured secret and hearsay evidence, closed proceedings, and the introduction of evidence obtained through coercion, was a demonstration of the flawed Military Commission process designed by the Bush Administration.
Vincent Warren, Executive Director of the Center for Constitutional Rights, an advocacy group that has mobilized many of the defense attorneys for Guantanamo inmates, told IPS, “For all the government’s attempts to paint the commissions as another Nuremberg, they remain utterly outside the law and will be mired in challenges for years to come. Hamdan was convicted based on laws that were passed long after he was picked up, and the commission allowed coerced evidence, both illegal under not only international law, but U.S. law, as well.”
His view was echoed by Larry Cox, executive director of Amnesty International USA. He said, “Hamdan’s trial revealed what is common knowledge -- the military commissions are fatally flawed and do not adhere to major aspects of the rule of law. Hamdan suffered nearly seven years of unlawful detention, only to face a process that falls far short. So far the trial continues the Bush administration’s efforts to escape the rule of law and the requirements of justice.”
And Brian J. Foley, Visiting Associate Professor at Boston University law school, told IPS, "The trial was a show trial. The rules of evidence are so tilted in the government's favor that the tribunal is ill-designed for getting at truth. It's hard to credit any verdict, though it's telling that the Executive failed to win the entire case even in its contrived system. That, however, in no way proves the system is fair or that it works."
But others who support the military commission system termed it legitimate and fair. For example, Washington lawyer David Rivkin, a consistent supporter of the administration’s detention policies, said, “This is an enormously compelling indication of how independent the process has been.”
And Deputy White House spokesman Tony Fratto described the trial as fair. He said it would now open the way for prosecutors to proceed to try about 80 Guantanamo detainees for war crimes. Nineteen of these have already been charged.
The verdict and sentence will automatically be appealed to a special military appeals court in Washington. That court can reduce, but cannot increase, his sentence. Hamdan can then appeal to U.S. civilian courts as well.
Defense lawyers said Hamdan's rights were denied by an unfair process crafted by Congress after several Supreme Court decisions that found previous tribunal systems in violation of U.S. and international law. They criticized the use of interrogations as key to the government's case, saying that these were the products of coercive tactics, including sleep deprivation and solitary confinement.
"The problem is the law was specifically written after the fact to target Mr. Hamdan," according to Charles Swift, one of Hamdan's civilian lawyers. Swift began his defense of Hamdan as a U.S. naval officer and continued his representation after he retired from the navy.
Hamdan was convicted of providing material support to terrorism by driving bin Laden around Afghanistan at the time of the Sept. 11, 2001 attacks. But he said he “needed a job” and that he merely had a "relationship of respect" with bin Laden, as would any other employee.
He was acquitted of the far more serious charge of conspiracy to participate in the September 11, 2001 attacks on the U.S. and in other terrorist attacks. He was also found not guilty on three other counts alleging he knew that his work would be used for terrorism and that he provided surface-to-air missiles to al-Qaida.
Hamdan has been held at Guantanamo since May 2002. The military has not said where he would serve a sentence, but the commander of the detention center, Navy Rear Adm. David Thomas, said last week that convicted prisoners will be held apart from the general detainee population.
Hamdan has already become an iconic figure in American jurisprudence. It was the lawsuit he brought against then Secretary of Defense Donald Rumsfeld in 2006 that resulted in the Supreme Court ruling that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”
Following that ruling – one of several major legal setbacks for the Bush administration – Congress hastily passed the Military Commissions Act of 2006, under which Hamdan was tried.
It is unclear why the government chose a case involving arguably the lowest-level Guantanamo detainee as its first defendant. But legal authorities have speculated that prosecutors saw the Hamdan case as a “test run” for the military commission structure and process. Many of the cases yet to come to trial involve so-called “high value” detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. His case is also far more problematic, since the Bush administration has acknowledged that he was subjected to what it calls “enhanced interrogation techniques,” including waterboarding.
Friday, August 08, 2008
Tuesday, August 05, 2008
Memo To Obama And McCain: Add To Your Do-Do List
By William Fisher
Millions of words have been written and spoken about the politicization of the Department of Justice before, during and after the departure of Alberto Gonzales. But the silence on two of the DOJ’s most toxic practices has been deafening.
One is publicly labeling someone “a person of interest.” The other is wildly exaggerating the seriousness of the charges against a person. Both have been widely and indiscriminately used over the past decade. Both have destroyed people’s lives. Both have contributed to the environment of fear that followed 9/11. Both have been unashamedly exploited for career advancement by prosecutors, and for political gain by zealously loyal Bushies.
And neither has received any serious attention from the media or from the current presidential candidates.
But a new occupant of the Oval Office could and should end these dreadful practices with the stroke of a pen.
What exactly is a “person of interest?” The answer is that nobody knows. And nobody knows because the term has no basis in law. It first rose to prominence when the DOJ applied it to Richard Jewel, the hapless security guard who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta. A bomb exploded there shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. It wasn’t long before the Feds’ attention shifted to the guy who should have been celebrated as a hero.
Jewel was “not accused” of planting a bomb or of anything else. The Clinton Justice Department told the media he was neither a “target” nor a “suspect” – terms customarily used by law enforcement. But he was effectively both. He was relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. And his life was forever damaged, notwithstanding a belated apology from then Attorney General Janet Reno (the FBI never apologized).
Then came Steven Hatfill, the “person of interest” in the deadly 2001 anthrax mailings. In 2002, he was labeled a “person of interest” by then- Attorney General John Ashcroft. Tagged by the FBI, but neither accused nor charged, the Feds hounded this government scientist 24/7 for years. He lost his job and his reputation and became obviously unemployable.
Hatfill sued the DOJ. This summer, he agreed to take $5.82 million and an apology from the government to settle his claim that the DOJ and the FBI invaded his privacy and ruined his career.
Since Jewel and Hatfill, the “person of interest” moniker has metastasized to local and state law enforcement authorities that have used it hundreds of times. And since most ordinary folks lack the resources to fight back against injustice by innuendo, they have no option other than to let the authorities wreck their lives.
Under the DOJ’s own guidelines, prosecutors are allowed to publicly identify a person only they are seeking an interview for a criminal investigation. These guidelines prohibit any other disclosure of a person’s name until formal charges have been brought. Honored in the breach, as they say.
The National Association of Police Chiefs got it absolutely right when they called “person of interest” a "euphemism for a suspect."
So did Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law. He told me: “A 'person of interest' is not an official designation. It is abused. Law enforcement is politics. Those in power use the term to assure the public that they're 'doing something.' Police authorities fear admitting that they literally have no clue who committed a crime.”
He continued: “Unfortunately, these politicians trash lives along the way -- the 'person of interest' is someone against whom there is no real evidence but someone who can be, at least for a time, used, vilified, scapegoated. It's time our law enforcement politicians learn to say 'No comment' and for them to educate the public that very often, especially at the beginning of a case, police have no idea who the perpetrator was, or at least no real evidence. The public should want responsible action (and restraint), not simply action. The media should also cease its complicity in this charade and rigorously question politicians who finger someone as a 'person of interest,' asking what evidence the police have to support their grave allegation. Otherwise, naming someone a 'person of interest' cheaply serves many of the same cynical purposes that 'show trials' serve in totalitarian regimes.”
And Prof. Peter Shane of the University of Ohio Law School. He told me: “The ‘person of interest’ phenomenon is something like the opposite side of the coin from terrorist watch lists. In the name of improving public safety, government authorities want to create some status for suspicious-seeming individuals that would enlarge government's investigative power without triggering the civil liberties protections that go with identifying anyone as an actual criminal ‘suspect’. So far, it is not at all clear how much safety the public is getting out of the shift to a ‘preventive law enforcement’ mentality. There is a substantial risk that we will wind up less free, but actually no safer.”
Well said both!
The Brits have done better. The UK has some of the tightest reporting restrictions in the Western world, limiting the ability of news organizations to publish pictures or articles about the subjects of criminal investigations. The rules are intended to ensure fair trials by keeping potentially prejudicial information out of the hands of would-be jurors. By and large, the cops and the media take this rule very seriously (though some of the tabloids don’t; names too often get leaked and published).
We should pay attention to what law enforcement does and doesn’t allow across the Atlantic. People who are not charged with crimes should remain anonymous. Until they are charged, authorities should merely tell the public – as the British authorities do – that folks in custody are “helping police with their inquiries.”
Hyping charges is arguably an even more egregious practice because it can adversely influence judges and juries.
The poster-boy for this riff is Jose Padilla – the US citizen accused by then Attorney General John Ashcroft of plotting to use a radioactive “dirty bomb” to blow up buildings in America.
Padilla was labeled an “enemy combatant” by President Bush. He was unconstitutionally held largely incommunicado in a US military brig for more than three years until the eve of a ruling from the US Supreme Court. Only then did the DOJ – fearing the Court’s decision would be another legal setback -- transfer him to the custody of the US criminal justice system.
Padilla was charged with membership in a North American terrorist support cell and with conspiracy to murder, kidnap and maim US nationals, and conspiracy to provide material support to terrorists. These are the crimes he was convicted of.
But what of the radioactive dirty bomb? It was nowhere to be found in Padilla’s indictment. Why was it dropped? Because there was no evidence that the DOJ could introduce and support in a court of law. Because it was hype.
But Padilla is far from the only victim of such politically-motivated hype. There’s the case of Dr. Rafil Dhafir, an upstate New York oncologist whose arrest was widely trumpeted by the state’s governor and others as a great victory in the “war on terror.” But when he went on trial in 2005, prosecutors insisted – and the judge agreed – that the word “terror” should be excluded from the courtroom. His attorney accused the government of selective prosecution by singling him out because of his race, religion and cultural background.
Nonetheless, Dhafir was convicted – and sentenced to 22 years in the slammer – mainly for violating the US government’s sanctions against Iraq by sending money for food, clothing and medical supplies through a charity he founded. He is believed to the only US citizen ever to be held in prison for violating the Iraq sanctions, although several humanitarian groups have admitted doing just that.
Then there’s the case of “The Liberty City Seven” – seven Miami residents named for the impoverish area of Miami where they lived. The seven were caught in an FBI sting operation allegedly for pledging loyalty to Al-Qaeda in a plot to blow up the Sears Tower in Chicago. When they were arrested in 2006, law enforcement officials in Washington and Miami called two widely heralded press conferences, where one senior spokesman acknowledged that the terrorist plot was more "aspirational than operational."
Despite the fact that police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot, the seven were tried, not just once, but twice. In both trials, juries failed to reach a verdict on six of the seven (one was acquitted and then deported to his native Haiti).
Want more? Well, there’s Brandon Mayfield, the Oregon lawyer who was held as a “material witness” (another toxic practice) because the FBI said his fingerprints were found on one of the backpacks used to carry explosives used to blow up the trains in Madrid in 2004. The convert to Islam was kept in jail without bond for two weeks, until the FBI had one of its rare oops! moments: It fessed up incorrectly getting Mayfield’s fingerprints confused with someone else’s.
Mayfield got an apology, a $2 million settlement, and the overturning of some provisions of the USA Patriot Act on constitutional grounds when he sued the DOJ.
These cases are, to coin a phrase, only the tip of the iceberg. There are dozens of others in which innocent people have been placed in a deadly legal limbo by the “person of interest” label, or subjected to needless trials or given excessive sentences because of political hype or prosecutorial misconduct.
Cleaning up this mess should be a lot easier than getting Harriet Myers to testify to Congress. Or closing Guantanamo. The Department of Justice makes its own rules for behaving ethically within the Constitution and the laws passed by Congress.
The DOJ can rewrite its rules as easily as it broke them. It needs to make the term “person of interest” off limits for DOJ personnel, including the FBI. And it needs to send a clear message to prosecutors and FBI folks that hyped accusations are not campaign bumper stickers or the newest super-highway to career advancement.
This will require a president with the guts to choose an attorney general who believes in the rule of law and who will not tolerate anything less.
If our next AG has any problem with the above, we’ve elected the wrong president.
Millions of words have been written and spoken about the politicization of the Department of Justice before, during and after the departure of Alberto Gonzales. But the silence on two of the DOJ’s most toxic practices has been deafening.
One is publicly labeling someone “a person of interest.” The other is wildly exaggerating the seriousness of the charges against a person. Both have been widely and indiscriminately used over the past decade. Both have destroyed people’s lives. Both have contributed to the environment of fear that followed 9/11. Both have been unashamedly exploited for career advancement by prosecutors, and for political gain by zealously loyal Bushies.
And neither has received any serious attention from the media or from the current presidential candidates.
But a new occupant of the Oval Office could and should end these dreadful practices with the stroke of a pen.
What exactly is a “person of interest?” The answer is that nobody knows. And nobody knows because the term has no basis in law. It first rose to prominence when the DOJ applied it to Richard Jewel, the hapless security guard who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta. A bomb exploded there shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. It wasn’t long before the Feds’ attention shifted to the guy who should have been celebrated as a hero.
Jewel was “not accused” of planting a bomb or of anything else. The Clinton Justice Department told the media he was neither a “target” nor a “suspect” – terms customarily used by law enforcement. But he was effectively both. He was relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. And his life was forever damaged, notwithstanding a belated apology from then Attorney General Janet Reno (the FBI never apologized).
Then came Steven Hatfill, the “person of interest” in the deadly 2001 anthrax mailings. In 2002, he was labeled a “person of interest” by then- Attorney General John Ashcroft. Tagged by the FBI, but neither accused nor charged, the Feds hounded this government scientist 24/7 for years. He lost his job and his reputation and became obviously unemployable.
Hatfill sued the DOJ. This summer, he agreed to take $5.82 million and an apology from the government to settle his claim that the DOJ and the FBI invaded his privacy and ruined his career.
Since Jewel and Hatfill, the “person of interest” moniker has metastasized to local and state law enforcement authorities that have used it hundreds of times. And since most ordinary folks lack the resources to fight back against injustice by innuendo, they have no option other than to let the authorities wreck their lives.
Under the DOJ’s own guidelines, prosecutors are allowed to publicly identify a person only they are seeking an interview for a criminal investigation. These guidelines prohibit any other disclosure of a person’s name until formal charges have been brought. Honored in the breach, as they say.
The National Association of Police Chiefs got it absolutely right when they called “person of interest” a "euphemism for a suspect."
So did Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law. He told me: “A 'person of interest' is not an official designation. It is abused. Law enforcement is politics. Those in power use the term to assure the public that they're 'doing something.' Police authorities fear admitting that they literally have no clue who committed a crime.”
He continued: “Unfortunately, these politicians trash lives along the way -- the 'person of interest' is someone against whom there is no real evidence but someone who can be, at least for a time, used, vilified, scapegoated. It's time our law enforcement politicians learn to say 'No comment' and for them to educate the public that very often, especially at the beginning of a case, police have no idea who the perpetrator was, or at least no real evidence. The public should want responsible action (and restraint), not simply action. The media should also cease its complicity in this charade and rigorously question politicians who finger someone as a 'person of interest,' asking what evidence the police have to support their grave allegation. Otherwise, naming someone a 'person of interest' cheaply serves many of the same cynical purposes that 'show trials' serve in totalitarian regimes.”
And Prof. Peter Shane of the University of Ohio Law School. He told me: “The ‘person of interest’ phenomenon is something like the opposite side of the coin from terrorist watch lists. In the name of improving public safety, government authorities want to create some status for suspicious-seeming individuals that would enlarge government's investigative power without triggering the civil liberties protections that go with identifying anyone as an actual criminal ‘suspect’. So far, it is not at all clear how much safety the public is getting out of the shift to a ‘preventive law enforcement’ mentality. There is a substantial risk that we will wind up less free, but actually no safer.”
Well said both!
The Brits have done better. The UK has some of the tightest reporting restrictions in the Western world, limiting the ability of news organizations to publish pictures or articles about the subjects of criminal investigations. The rules are intended to ensure fair trials by keeping potentially prejudicial information out of the hands of would-be jurors. By and large, the cops and the media take this rule very seriously (though some of the tabloids don’t; names too often get leaked and published).
We should pay attention to what law enforcement does and doesn’t allow across the Atlantic. People who are not charged with crimes should remain anonymous. Until they are charged, authorities should merely tell the public – as the British authorities do – that folks in custody are “helping police with their inquiries.”
Hyping charges is arguably an even more egregious practice because it can adversely influence judges and juries.
The poster-boy for this riff is Jose Padilla – the US citizen accused by then Attorney General John Ashcroft of plotting to use a radioactive “dirty bomb” to blow up buildings in America.
Padilla was labeled an “enemy combatant” by President Bush. He was unconstitutionally held largely incommunicado in a US military brig for more than three years until the eve of a ruling from the US Supreme Court. Only then did the DOJ – fearing the Court’s decision would be another legal setback -- transfer him to the custody of the US criminal justice system.
Padilla was charged with membership in a North American terrorist support cell and with conspiracy to murder, kidnap and maim US nationals, and conspiracy to provide material support to terrorists. These are the crimes he was convicted of.
But what of the radioactive dirty bomb? It was nowhere to be found in Padilla’s indictment. Why was it dropped? Because there was no evidence that the DOJ could introduce and support in a court of law. Because it was hype.
But Padilla is far from the only victim of such politically-motivated hype. There’s the case of Dr. Rafil Dhafir, an upstate New York oncologist whose arrest was widely trumpeted by the state’s governor and others as a great victory in the “war on terror.” But when he went on trial in 2005, prosecutors insisted – and the judge agreed – that the word “terror” should be excluded from the courtroom. His attorney accused the government of selective prosecution by singling him out because of his race, religion and cultural background.
Nonetheless, Dhafir was convicted – and sentenced to 22 years in the slammer – mainly for violating the US government’s sanctions against Iraq by sending money for food, clothing and medical supplies through a charity he founded. He is believed to the only US citizen ever to be held in prison for violating the Iraq sanctions, although several humanitarian groups have admitted doing just that.
Then there’s the case of “The Liberty City Seven” – seven Miami residents named for the impoverish area of Miami where they lived. The seven were caught in an FBI sting operation allegedly for pledging loyalty to Al-Qaeda in a plot to blow up the Sears Tower in Chicago. When they were arrested in 2006, law enforcement officials in Washington and Miami called two widely heralded press conferences, where one senior spokesman acknowledged that the terrorist plot was more "aspirational than operational."
Despite the fact that police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot, the seven were tried, not just once, but twice. In both trials, juries failed to reach a verdict on six of the seven (one was acquitted and then deported to his native Haiti).
Want more? Well, there’s Brandon Mayfield, the Oregon lawyer who was held as a “material witness” (another toxic practice) because the FBI said his fingerprints were found on one of the backpacks used to carry explosives used to blow up the trains in Madrid in 2004. The convert to Islam was kept in jail without bond for two weeks, until the FBI had one of its rare oops! moments: It fessed up incorrectly getting Mayfield’s fingerprints confused with someone else’s.
Mayfield got an apology, a $2 million settlement, and the overturning of some provisions of the USA Patriot Act on constitutional grounds when he sued the DOJ.
These cases are, to coin a phrase, only the tip of the iceberg. There are dozens of others in which innocent people have been placed in a deadly legal limbo by the “person of interest” label, or subjected to needless trials or given excessive sentences because of political hype or prosecutorial misconduct.
Cleaning up this mess should be a lot easier than getting Harriet Myers to testify to Congress. Or closing Guantanamo. The Department of Justice makes its own rules for behaving ethically within the Constitution and the laws passed by Congress.
The DOJ can rewrite its rules as easily as it broke them. It needs to make the term “person of interest” off limits for DOJ personnel, including the FBI. And it needs to send a clear message to prosecutors and FBI folks that hyped accusations are not campaign bumper stickers or the newest super-highway to career advancement.
This will require a president with the guts to choose an attorney general who believes in the rule of law and who will not tolerate anything less.
If our next AG has any problem with the above, we’ve elected the wrong president.
Saturday, July 26, 2008
Obama Should Re-Think His Faith-Based Agenda
By William Fisher
In his speech in Berlin, Barack Obama spoke of many walls that need tearing down. By the count of New York Times columnist David Brooks, Obama used the word “walls” 16 times, and in 11 of them, he was talking about walls coming down.
Now, I haven’t talked with anyone, of any political persuasion, who’s not in favor of those walls coming down, as unlikely as that may turn out to be.
But there’s one wall that Barack wants to pull down that I think needs to be affirmatively left in place, or, to be more precise, reconstructed. That’s the wall between church and state.
That wall was demolished by George W. Bush’s White House Office of Faith-Based and Community Initiatives. The Constitution notwithstanding, the Bush Administration installed faith-based programs in the White House and in a dozen government departments and agencies. The President was forced to use Executive Orders to get this program started, because Congress refused to allow prospective recipients of taxpayer funds to practice religious discrimination in hiring.
We all know how the Bush Administration cynically used its faith-based initiative to solidify its relationships with the Christian Right, a critical part of its base. Now, in an embarrassingly obvious pander to these so-called “values voters,” Senator Obama has proposed his own version of a faith-based initiative. It’s true that Obama’s version contains major differences from Bush’s program. As Jim Wallis points out, Obama's proposals contain necessary protections for religious liberty, pluralism, and constitutional safeguards.
But we are still stuck with the central (and unanswered) question: Why is the federal government involved at all? Doesn’t the First Amendment to our Constitution make it clear enough that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
I hate to sound like one of those “government should just get out of the way” conservatives, but I have to say that this seems to me to be one of those instances where federal intervention should be just plain unnecessary.
I want to be crystal clear. I am very much aware of the fantastic work done by many faith-based groups, both at home and abroad. These groups work at the grassroots. They work to help real people with real problems. They work on issues ranging from housing to poverty to homelessness to literacy to social justice to prison mentoring. Abroad, in my development work, I have over many years seen firsthand the totally professional work done in many disciplines by organizations like Catholic Charities – without even the tiniest hint of proselytizing.
Yes, there have been some pretty outrageous breaches by a few religious organizations – like the outfit that distributed King James Bibles to Muslims who had just lost everything to the Tsunami. Or the charity that used our tax dollars to run an “abstinence only” family planning program.
But that’s not the point. By and large, the work of these groups has been exemplary, necessary, and often far less expensive and far more efficient than government efforts. The disastrous governmental response to Katrina would have been immeasurably worse without the tireless no-strings-attached help provided by unpaid volunteers from churches and church-related groups, large and small, from all over the world.
The point is that the major players in the faith-based community are awash in money and they ought to be encouraged to share it with their smaller and often struggling brothers and sisters.
I’m talking about the multi-billion-dollar faith-based rock-star empires amassed by people like John Hagee, Pat Robertson, Rick Warren, Joel Osteen, James Dobson, and many, many others.
Not that I would want this megaclergy to take on the role of grant-makers. Heaven forfend! That would surely lead to the total politicization of good works.
I am suggesting that, in the best spirit of peace on earth and goodwill toward men (and women), those with much should share it with those who have little save the desire to help their fellow human beings.
I am suggesting that the megaclergy commit to contributing in perpetuity part of their annual revenues to finance the kinds of projects now paid for by tax dollars. And I am suggesting that they should do that under the watchful aegis of some professional, ecumenical, credible, non-partisan, non-governmental organization, perhaps the Interfaith Council, or one of the great foundations such as MacArthur, Rockefeller, Pew, or Ford.
Let that outfit make its own rules without interference from donors. Or from the government. Let it develop its own priorities, its own criteria for awarding grants, its own monitoring and evaluation systems to measure effectiveness, its own plans to ensure lawful behavior, ethical conduct and real accountability.
It could start with only a few immutable principles: No proselytizing. No partisan politics. No ideological or scriptural agendas. Just help for those who need and deserve it.
As to the issue of employment discrimination, there shouldn’t be any. In the unlikely event that some staunch right-to-lifer wants to work for Planned Parenthood, let him/her! And what could be more instructive than a practicing Muslim working for the Southern Baptist Convention! And my advice to orthodox Jews who are only comfortable working with other orthodox Jews, or Muslims with Muslims, or Catholics with Catholics: get over it!
At a practical level, I doubt that such a non-discriminatory employment policy would deter many faith-based groups from applying for grants. The reality might just be that people at polar opposites could actually learn something if they stopped talking past one another and worked together to accomplish important things.
It would be naïve to underestimate how hard it will be to get the Pat Robertsons of the world to sign on to this new kind of no-strings-attached philanthropy.
But that’s exactly the guidance the Bible gives. Consider Deuteronomy 15:11: "There will always be poor people in the land. Therefore I command you to be openhanded toward your brothers and toward the poor and needy in your land."
And if that unambiguous Biblical injunction happens to fall on deaf ears, perhaps there is a role for government after all. The bully pulpit of the White House gives the president a powerful weapon – which even the likes of Pat Robertson will find it difficult to ignore.
Whichever works, it will then be time for the government to, as they say, get out of the way.
In his speech in Berlin, Barack Obama spoke of many walls that need tearing down. By the count of New York Times columnist David Brooks, Obama used the word “walls” 16 times, and in 11 of them, he was talking about walls coming down.
Now, I haven’t talked with anyone, of any political persuasion, who’s not in favor of those walls coming down, as unlikely as that may turn out to be.
But there’s one wall that Barack wants to pull down that I think needs to be affirmatively left in place, or, to be more precise, reconstructed. That’s the wall between church and state.
That wall was demolished by George W. Bush’s White House Office of Faith-Based and Community Initiatives. The Constitution notwithstanding, the Bush Administration installed faith-based programs in the White House and in a dozen government departments and agencies. The President was forced to use Executive Orders to get this program started, because Congress refused to allow prospective recipients of taxpayer funds to practice religious discrimination in hiring.
We all know how the Bush Administration cynically used its faith-based initiative to solidify its relationships with the Christian Right, a critical part of its base. Now, in an embarrassingly obvious pander to these so-called “values voters,” Senator Obama has proposed his own version of a faith-based initiative. It’s true that Obama’s version contains major differences from Bush’s program. As Jim Wallis points out, Obama's proposals contain necessary protections for religious liberty, pluralism, and constitutional safeguards.
But we are still stuck with the central (and unanswered) question: Why is the federal government involved at all? Doesn’t the First Amendment to our Constitution make it clear enough that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
I hate to sound like one of those “government should just get out of the way” conservatives, but I have to say that this seems to me to be one of those instances where federal intervention should be just plain unnecessary.
I want to be crystal clear. I am very much aware of the fantastic work done by many faith-based groups, both at home and abroad. These groups work at the grassroots. They work to help real people with real problems. They work on issues ranging from housing to poverty to homelessness to literacy to social justice to prison mentoring. Abroad, in my development work, I have over many years seen firsthand the totally professional work done in many disciplines by organizations like Catholic Charities – without even the tiniest hint of proselytizing.
Yes, there have been some pretty outrageous breaches by a few religious organizations – like the outfit that distributed King James Bibles to Muslims who had just lost everything to the Tsunami. Or the charity that used our tax dollars to run an “abstinence only” family planning program.
But that’s not the point. By and large, the work of these groups has been exemplary, necessary, and often far less expensive and far more efficient than government efforts. The disastrous governmental response to Katrina would have been immeasurably worse without the tireless no-strings-attached help provided by unpaid volunteers from churches and church-related groups, large and small, from all over the world.
The point is that the major players in the faith-based community are awash in money and they ought to be encouraged to share it with their smaller and often struggling brothers and sisters.
I’m talking about the multi-billion-dollar faith-based rock-star empires amassed by people like John Hagee, Pat Robertson, Rick Warren, Joel Osteen, James Dobson, and many, many others.
Not that I would want this megaclergy to take on the role of grant-makers. Heaven forfend! That would surely lead to the total politicization of good works.
I am suggesting that, in the best spirit of peace on earth and goodwill toward men (and women), those with much should share it with those who have little save the desire to help their fellow human beings.
I am suggesting that the megaclergy commit to contributing in perpetuity part of their annual revenues to finance the kinds of projects now paid for by tax dollars. And I am suggesting that they should do that under the watchful aegis of some professional, ecumenical, credible, non-partisan, non-governmental organization, perhaps the Interfaith Council, or one of the great foundations such as MacArthur, Rockefeller, Pew, or Ford.
Let that outfit make its own rules without interference from donors. Or from the government. Let it develop its own priorities, its own criteria for awarding grants, its own monitoring and evaluation systems to measure effectiveness, its own plans to ensure lawful behavior, ethical conduct and real accountability.
It could start with only a few immutable principles: No proselytizing. No partisan politics. No ideological or scriptural agendas. Just help for those who need and deserve it.
As to the issue of employment discrimination, there shouldn’t be any. In the unlikely event that some staunch right-to-lifer wants to work for Planned Parenthood, let him/her! And what could be more instructive than a practicing Muslim working for the Southern Baptist Convention! And my advice to orthodox Jews who are only comfortable working with other orthodox Jews, or Muslims with Muslims, or Catholics with Catholics: get over it!
At a practical level, I doubt that such a non-discriminatory employment policy would deter many faith-based groups from applying for grants. The reality might just be that people at polar opposites could actually learn something if they stopped talking past one another and worked together to accomplish important things.
It would be naïve to underestimate how hard it will be to get the Pat Robertsons of the world to sign on to this new kind of no-strings-attached philanthropy.
But that’s exactly the guidance the Bible gives. Consider Deuteronomy 15:11: "There will always be poor people in the land. Therefore I command you to be openhanded toward your brothers and toward the poor and needy in your land."
And if that unambiguous Biblical injunction happens to fall on deaf ears, perhaps there is a role for government after all. The bully pulpit of the White House gives the president a powerful weapon – which even the likes of Pat Robertson will find it difficult to ignore.
Whichever works, it will then be time for the government to, as they say, get out of the way.
Friday, July 25, 2008
Did You Give at the Office?
By William Fisher
In the name of “Global War on Terror,” the U.S. Government is waging war on non-governmental organizations by applying “shortsighted, undemocratic policies” that are “constraining the critical activities of the charitable and philanthropic sectors, stifling free speech, and ultimately impeding the fight against terrorism.”
This is the conclusion of a new white paper prepared by two prominent organizations, OMB Watch and Grantmakers Without Borders. OMB stands for the government’s Office of Management and Budget, the White House office responsible for devising and submitting the president's annual budget proposal to Congress.
The report charges that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accuses the courts of being “overly deferential” to the U.S. Treasury Department, which is responsible for conducting programs designed to stem the flow of money to terrorist organizations. It contends that federal agencies “ignore nonprofits’ calls for change,” and says, “Congress has not utilized its oversight powers to review counterterrorism programs.”
The result, the report says, is that U.S. nonprofit organizations have been forced to “operate within a legal regime that harms charitable programs, undermines the independence of the nonprofit sector, and weakens civil society.”
The report says that the U.S. nonprofit community today “operates in fear of what may spark (the government) to use its power to shut them down.”
Kay Guinane, Director of Nonprofit Speech Rights at OMB Watch, noted that the current approach to counterterrorism as it relates to nonprofits and foundations is ultimately counterproductive. She told IPS, "In order to preserve the rights of all nonprofit organizations, and indeed, the rights of all people, all levels of government must conduct their counterterrorism activities in a way that consistently protects liberty and civil society. Otherwise, Americans and others lose safeguards that were designed to protect us all from creeping tyranny."
The report -- Collateral Damage: How the War on Terror Hurts Charities, Foundations, and the People They Serve -- asserts that “current counterterrorism policies are based on a flawed legal regime and broad, vague definitions; the policies rely on flawed assumptions about terrorism and nonprofits; and the policies are abused by the government to engage in unconstitutional, political use of surveillance powers.”
The Treasury Department’s Office of Foreign Assets Control (OFAC) is the target of much of the report’s criticism of the government’s approach. After the September 11th terrorist attacks on the U.S., Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were using their charitable status as cover for funneling funds to terrorist groups.
These powers include the authority to designate any charity as a material supporter of terrorism. This action demands virtually no due process from the government, denies the target to see the evidence against it, and can result in freezing of a charity’s assets, effectively shutting it down. Since 9/11, the government has shut down dozens of charitable groups, but only three have ever been charged and brought to trial for supporting terrorist causes. None has been convicted.
The report explains that current counterterrorism financing policy allows the funds of designated charitable organizations to sit in frozen accounts indefinitely. Treasury’s 2006 Terrorist Assets Report estimates that $16,413,733 in assets from “foreign terrorist organizations”, which include charities and foundations, have been frozen since 9/11. The laws that authorize the designation and freezing of assets do not provide any timeline or process for long-term disposition, so they remain frozen for as long as the root national emergency authorizing the sanctions lasts. To date, no blocked funds have been released for charitable purposes, despite several requests, the report claims.
It also asserts that the government has used its surveillance powers against charitable groups for political purposes. It charges, “In addition to providing aid and services to people in need, charitable and religious organizations help to facilitate a free exchange of information and ideas, fostering debate about public policy issues. The government has treated some of these activities as a terrorist threat. Since 9/11, there have been disturbing revelations about the use of counterterrorism resources to track and sometimes interfere with groups that publicly and vocally dissent from administration policies.”
In 2005, the American Civil Liberties Union (ACLU) launched its Spy Files Project and uncovered an intricate system of domestic spying on U.S. non-profits largely condoned by expanded counterterrorism powers within the USA PATRIOT Act.
The report finds that “U.S. counterterrorism laws have made it increasingly difficult for U.S.-based organizations to operate overseas. For example, after the 2004 tsunami, U.S. organizations operating in areas controlled by the Tamil Tigers, a designated terrorist organization, risked violating prohibitions against ‘material support’ when creating displaced persons’ camps and hospitals, traveling, or distributing food and water.”
For aid organizations like the International Red Cross, compliance with U.S. counterterrorism laws can force NGOs to violate standards of neutrality in their work. The Principles of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes state, “The humanitarian imperative comes first. Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone.”
In some cases, the report declares, counterterrorism laws have caused nonprofits to pull out of programs. For example, in 2003 Rockefeller Philanthropy Advisors suspended funding for a Caribbean program designed to “kick-start a flow of American charity” to that region because of an inability to comply with Treasury Department regulations.
Professor David Cole, a constitutional law expert at the Georgetown University Law Center, said, "The legal regime employed in the name of cutting off terror financing gives the executive branch a ‘blank check’ to blacklist disfavored individuals and groups, imposes guilt by association, and lacks even minimal attributes of fair process.”
He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.
Other observers believe that the campaign against charities that conduct programs in Muslim areas is part of a larger suspicion of Arabs and other Muslims. Samer Shehata, professor of Arab Politics at Georgetown University, told IPS, Islamophobia “produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc.”
He adds, “This is damaging certainly for all Americans and it is also damaging for the reputation of the U.S. overseas. One of the questions I hear the most whenever I am in Egypt and other parts of the Middle East is: how is it like now in the U.S. for Arabs? Have you been the victim of discrimination, bigotry, abuse?”
In the name of “Global War on Terror,” the U.S. Government is waging war on non-governmental organizations by applying “shortsighted, undemocratic policies” that are “constraining the critical activities of the charitable and philanthropic sectors, stifling free speech, and ultimately impeding the fight against terrorism.”
This is the conclusion of a new white paper prepared by two prominent organizations, OMB Watch and Grantmakers Without Borders. OMB stands for the government’s Office of Management and Budget, the White House office responsible for devising and submitting the president's annual budget proposal to Congress.
The report charges that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accuses the courts of being “overly deferential” to the U.S. Treasury Department, which is responsible for conducting programs designed to stem the flow of money to terrorist organizations. It contends that federal agencies “ignore nonprofits’ calls for change,” and says, “Congress has not utilized its oversight powers to review counterterrorism programs.”
The result, the report says, is that U.S. nonprofit organizations have been forced to “operate within a legal regime that harms charitable programs, undermines the independence of the nonprofit sector, and weakens civil society.”
The report says that the U.S. nonprofit community today “operates in fear of what may spark (the government) to use its power to shut them down.”
Kay Guinane, Director of Nonprofit Speech Rights at OMB Watch, noted that the current approach to counterterrorism as it relates to nonprofits and foundations is ultimately counterproductive. She told IPS, "In order to preserve the rights of all nonprofit organizations, and indeed, the rights of all people, all levels of government must conduct their counterterrorism activities in a way that consistently protects liberty and civil society. Otherwise, Americans and others lose safeguards that were designed to protect us all from creeping tyranny."
The report -- Collateral Damage: How the War on Terror Hurts Charities, Foundations, and the People They Serve -- asserts that “current counterterrorism policies are based on a flawed legal regime and broad, vague definitions; the policies rely on flawed assumptions about terrorism and nonprofits; and the policies are abused by the government to engage in unconstitutional, political use of surveillance powers.”
The Treasury Department’s Office of Foreign Assets Control (OFAC) is the target of much of the report’s criticism of the government’s approach. After the September 11th terrorist attacks on the U.S., Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were using their charitable status as cover for funneling funds to terrorist groups.
These powers include the authority to designate any charity as a material supporter of terrorism. This action demands virtually no due process from the government, denies the target to see the evidence against it, and can result in freezing of a charity’s assets, effectively shutting it down. Since 9/11, the government has shut down dozens of charitable groups, but only three have ever been charged and brought to trial for supporting terrorist causes. None has been convicted.
The report explains that current counterterrorism financing policy allows the funds of designated charitable organizations to sit in frozen accounts indefinitely. Treasury’s 2006 Terrorist Assets Report estimates that $16,413,733 in assets from “foreign terrorist organizations”, which include charities and foundations, have been frozen since 9/11. The laws that authorize the designation and freezing of assets do not provide any timeline or process for long-term disposition, so they remain frozen for as long as the root national emergency authorizing the sanctions lasts. To date, no blocked funds have been released for charitable purposes, despite several requests, the report claims.
It also asserts that the government has used its surveillance powers against charitable groups for political purposes. It charges, “In addition to providing aid and services to people in need, charitable and religious organizations help to facilitate a free exchange of information and ideas, fostering debate about public policy issues. The government has treated some of these activities as a terrorist threat. Since 9/11, there have been disturbing revelations about the use of counterterrorism resources to track and sometimes interfere with groups that publicly and vocally dissent from administration policies.”
In 2005, the American Civil Liberties Union (ACLU) launched its Spy Files Project and uncovered an intricate system of domestic spying on U.S. non-profits largely condoned by expanded counterterrorism powers within the USA PATRIOT Act.
The report finds that “U.S. counterterrorism laws have made it increasingly difficult for U.S.-based organizations to operate overseas. For example, after the 2004 tsunami, U.S. organizations operating in areas controlled by the Tamil Tigers, a designated terrorist organization, risked violating prohibitions against ‘material support’ when creating displaced persons’ camps and hospitals, traveling, or distributing food and water.”
For aid organizations like the International Red Cross, compliance with U.S. counterterrorism laws can force NGOs to violate standards of neutrality in their work. The Principles of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Response Programmes state, “The humanitarian imperative comes first. Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone.”
In some cases, the report declares, counterterrorism laws have caused nonprofits to pull out of programs. For example, in 2003 Rockefeller Philanthropy Advisors suspended funding for a Caribbean program designed to “kick-start a flow of American charity” to that region because of an inability to comply with Treasury Department regulations.
Professor David Cole, a constitutional law expert at the Georgetown University Law Center, said, "The legal regime employed in the name of cutting off terror financing gives the executive branch a ‘blank check’ to blacklist disfavored individuals and groups, imposes guilt by association, and lacks even minimal attributes of fair process.”
He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.
Other observers believe that the campaign against charities that conduct programs in Muslim areas is part of a larger suspicion of Arabs and other Muslims. Samer Shehata, professor of Arab Politics at Georgetown University, told IPS, Islamophobia “produces an environment that is fundamentally at odds with what the U.S. is supposed to be about; our values for treating everyone fairly and not discriminating on the basis of skin color, race, religion, gender, etc.”
He adds, “This is damaging certainly for all Americans and it is also damaging for the reputation of the U.S. overseas. One of the questions I hear the most whenever I am in Egypt and other parts of the Middle East is: how is it like now in the U.S. for Arabs? Have you been the victim of discrimination, bigotry, abuse?”
Tuesday, July 22, 2008
New Challenge to Wiretap Law
By William Fisher
Civil liberties advocates have lost no time in asking a federal court to stop the government from conducting surveillance under the new wiretapping law passed by Congress and signed by President George W. Bush last week.
The American Civil Liberties Union (ACLU) and a coalition of other groups declared that the new law “gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls.”
The ACLU coalition’s legal challenge, which was filed in the U.S. District Court for the Southern District of New York, seeks a court order declaring that the new law is unconstitutional and ordering its immediate and permanent halt.
ACLU Executive Director Anthony D. Romero charged that the new law “not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.”
He added, “Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged."
The wiretapping issue became the center of a storm of criticism after The New York Times revealed that, following the Sept. 11, 2001 terrorist attacks, President Bush had secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the U.S. to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the U.S. without warrants in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.
Criticism at the time came from a wide variety of civil libertarians, including Bob Barr, a former conservative Republican congressman from Georgia and currently the Libertian Party candidate for President. He told IPS that in 2000, Gen. Michael Hayden, then head of the National Security Agency (NSA) and currently Director of National Intelligence (DNI), told a congressional hearing on wiretap targets, "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."
Barr’s advice was, “If the president doesn't like the law, the solution should be to amend, not violate it.”
The Bush Administration then called on Congress to pass amendments to the original Foreign Intelligence Surveillance Act (FISA), which was enacted in 1978. The 2008 version emerged as the result of a “compromise” between Democrats and Republicans in the House and Senate. Among its other provisions, the new law granted retroactive immunity to the telephone companies that had assisted the government in the warrantless wiretaps.
The surveillance legal challenge was filed on behalf of a coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work -- which relies on confidential communications- - will be greatly compromised by the new law, the ACLU said.
The FISA Amendments Act of 2008 declares that "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights.” But the ACLU and its coalition claims the new wiretapping law “fails to provide fundamental safeguards that the Constitution unambiguously requires."
Plaintiffs in the suit include The Nation magazine and two of its contributing journalists, Naomi Klein and Chris Hedges; Amnesty International USA; Global Rights; Global Fund for Women; Human Rights Watch; PEN American Center; Service Employees International Union; the Washington Office on Latin America; the International Criminal Defense Attorneys Association; and several individual defense attorneys and journalists.
In its legal challenge, the coalition argues that “The new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.”
Nation magazine writer Naomi Klein said that "As a journalist, my job requires communication with people in all parts of the world -- from Iraq to Argentina. If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised."
She added, "I cannot in good conscience accept that my conversations with people who live outside the U.S. will put them in harm's way as a result of overzealous government spying. Privacy in my communications is not simply an expectation, it's a right."
Human Rights Watch program director Iain Levine said the new legislation “will allow mass government interception of electronic communications, so long as the target is overseas, without meaningful judicial oversight or warrant identifying who or what is to be subject to surveillance.”
“In the course of our work reporting on and defending human rights, we regularly need to be in contact with activists and human rights victims all over the world,” he said. “Knowing that the U.S. government could be monitoring our calls and emails often inhibits our efforts, and causes us to take expensive and delaying measures to keep our communications secure.”
Internet privacy under the new law continues to be a concern to civil libertarians. For example, the San Francisco-based Electronic Frontier Foundation (EFF) has filed a number of Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) and other U.S. Department of Justice (DOJ) offices, seeking the release of documents it says will reveal whether the government has been using the USA Patriot Act to spy on Internet users to collect secret information about their Internet habits without a search warrant.
Kevin Bankston, an EFF attorney, told IPS, “Although Internet users reasonably expect that their online reading habits are private, the department of Justice (DOJ) will not confirm whether it collects or believes itself authorized to collect URLs using pen-trap devices."
Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get; instead of having to show probable cause, the government need only certify relevance to its investigation. The government is not required to inform people that they are or were the subjects of pen-trap surveillance.
Civil liberties advocates have lost no time in asking a federal court to stop the government from conducting surveillance under the new wiretapping law passed by Congress and signed by President George W. Bush last week.
The American Civil Liberties Union (ACLU) and a coalition of other groups declared that the new law “gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls.”
The ACLU coalition’s legal challenge, which was filed in the U.S. District Court for the Southern District of New York, seeks a court order declaring that the new law is unconstitutional and ordering its immediate and permanent halt.
ACLU Executive Director Anthony D. Romero charged that the new law “not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.”
He added, “Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged."
The wiretapping issue became the center of a storm of criticism after The New York Times revealed that, following the Sept. 11, 2001 terrorist attacks, President Bush had secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the U.S. to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the U.S. without warrants in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.
Criticism at the time came from a wide variety of civil libertarians, including Bob Barr, a former conservative Republican congressman from Georgia and currently the Libertian Party candidate for President. He told IPS that in 2000, Gen. Michael Hayden, then head of the National Security Agency (NSA) and currently Director of National Intelligence (DNI), told a congressional hearing on wiretap targets, "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."
Barr’s advice was, “If the president doesn't like the law, the solution should be to amend, not violate it.”
The Bush Administration then called on Congress to pass amendments to the original Foreign Intelligence Surveillance Act (FISA), which was enacted in 1978. The 2008 version emerged as the result of a “compromise” between Democrats and Republicans in the House and Senate. Among its other provisions, the new law granted retroactive immunity to the telephone companies that had assisted the government in the warrantless wiretaps.
The surveillance legal challenge was filed on behalf of a coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work -- which relies on confidential communications- - will be greatly compromised by the new law, the ACLU said.
The FISA Amendments Act of 2008 declares that "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights.” But the ACLU and its coalition claims the new wiretapping law “fails to provide fundamental safeguards that the Constitution unambiguously requires."
Plaintiffs in the suit include The Nation magazine and two of its contributing journalists, Naomi Klein and Chris Hedges; Amnesty International USA; Global Rights; Global Fund for Women; Human Rights Watch; PEN American Center; Service Employees International Union; the Washington Office on Latin America; the International Criminal Defense Attorneys Association; and several individual defense attorneys and journalists.
In its legal challenge, the coalition argues that “The new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.”
Nation magazine writer Naomi Klein said that "As a journalist, my job requires communication with people in all parts of the world -- from Iraq to Argentina. If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised."
She added, "I cannot in good conscience accept that my conversations with people who live outside the U.S. will put them in harm's way as a result of overzealous government spying. Privacy in my communications is not simply an expectation, it's a right."
Human Rights Watch program director Iain Levine said the new legislation “will allow mass government interception of electronic communications, so long as the target is overseas, without meaningful judicial oversight or warrant identifying who or what is to be subject to surveillance.”
“In the course of our work reporting on and defending human rights, we regularly need to be in contact with activists and human rights victims all over the world,” he said. “Knowing that the U.S. government could be monitoring our calls and emails often inhibits our efforts, and causes us to take expensive and delaying measures to keep our communications secure.”
Internet privacy under the new law continues to be a concern to civil libertarians. For example, the San Francisco-based Electronic Frontier Foundation (EFF) has filed a number of Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) and other U.S. Department of Justice (DOJ) offices, seeking the release of documents it says will reveal whether the government has been using the USA Patriot Act to spy on Internet users to collect secret information about their Internet habits without a search warrant.
Kevin Bankston, an EFF attorney, told IPS, “Although Internet users reasonably expect that their online reading habits are private, the department of Justice (DOJ) will not confirm whether it collects or believes itself authorized to collect URLs using pen-trap devices."
Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get; instead of having to show probable cause, the government need only certify relevance to its investigation. The government is not required to inform people that they are or were the subjects of pen-trap surveillance.
Monday, July 21, 2008
WITH JUSTICE FOR ALL? WELL, NOT SO MUCH.
By William Fisher
As the long–awaited trial of Guantanamo detainee Salim Ahmed Hamdan opened this week at the U.S. naval base in Cuba, human rights groups filed suit demanding that the Department of Justice (DOJ) produce documents related to the U.S. government’s ghost detention, torture, and extraordinary rendition program, and Attorney General Michael Mukasey called on Congress to quickly pass new legislation to guard against judges imposing a patchwork of conflicting rules that could produce confusion, more court challenges and even lengthier delays for prisoners who have been held at Guantanamo for as long as seven years.
Hamdan, Osama bin Laden's alleged former driver, is the first terror suspect to face trial at Guantanamo in seven years and the first test of whether that system can dispense fair and impartial justice. The charges against the Yemeni father of two will proceed before a military commission -- the first since the end of World War II -- with a jury of uniformed officers and rules that many constitutional authorities believe give great deference to the prosecution. Evidence obtained from "cruel" and "inhuman" interrogation methods as well as hearsay evidence will be admissible under certain circumstances. Hamdan faces a maximum of life in prison if convicted.
"This was supposed to be the premier system for bringing to justice the masterminds of the worst crime ever committed on U.S. soil," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The only result in seven years was the conviction of an Australian kangaroo trapper, who is now free."
He was referring to Australian David M. Hicks, who last year pleaded guilty to a terrorism charge in the only Guantanamo case to be fully adjudicated. Hicks was sent to Australia as part of a political deal and was later released from prison there.
Hamdan’s lawyers have argued he was beaten and abused at Guantanamo and subjected to a program of systematic sleep deprivation that they said constitutes torture.
Hamdan is one of about 20 prisoners whose cases are scheduled to be heard by juries composed of military service members rather than civilians.
The Hamdan trials, as well as those that are to follow, have been widely criticized by constitutional scholars. For example, Brian J. Foley, Visiting Associate law professor at Boston University, told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”
He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies.”
Defenders of the military commissions are defending its multi-layered due process procedures -- including the right to appeal a conviction to federal court -- that Congress added since Bush proposed the panels. Proponents of the new system say people who committed heinous acts against the United States do not deserve the constitutional protections of its federal courts.
Even if Hamdan is acquitted of conspiracy and material support of terrorism charges – an unlikely outcome -- he probably would not be released because he has been designated an "enemy combatant" by the military. The military contends that prosecutors would be unchanged by an acquittal even if international pressure mounts for his release.
Such international pressure came last week, when hundreds of European legislators filed a court motion to postpone Hamdan's trial while he challenges the legality of Military Commissions.
In a new legal brief, the Europeans said they were “concerned that (Hamdan's) imminent military commission trial will not exclude evidence that contravenes international standards of fair trial, due process and the protection of human rights."
But last week, a federal judge ruled that Hamdan’s Military Commission trial should continue, and suggested that appellate relief could come from the military’s own internal process or from the U.S. Federal Court of Appeals.
Hamdan has already become something of an icon in U.S. constitutional history. In a lawsuit brought by Hamdan's attorneys, the Supreme Court in 2006 struck down the military commission system, ruling that it was not authorized by federal law and violated the Geneva Conventions. Congress reacted by passing the Military Commissions Act of 2006, under which
Hamdan is being tried.
The Act banned evidence obtained using torture but said statements derived from harsh interrogations are allowable if the judge finds the evidence reliable and relevant. In 2005, Congress banned "cruel, inhuman, or degrading treatment," but statements made under such duress before that date could be admissible. Many of Hamdan's interrogations occurred before the congressional action, according to court testimony.
The Hamdan proceedings are seen by observers as a way to test the long-delayed military system on an alleged low-level al-Qaeda foot soldier and thus be primed for the trials of “high value” terrorist leaders to come. These include proceedings against Khalid Sheik Mohammed, self-proclaimed mastermind of the Sept. 11, 2001, attacks, Abu Zubaydah, and other accused planners.
One of the most prominent figures to argue for delay of Hamdan’s case is Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo. He resigned his position late last year in protest over what he said was political interference.
“My policy as chief prosecutor had been that we would not offer any evidence obtained by waterboarding, specifically, or any other interrogation techniques that were unduly coercive,” Davis said, adding, “I felt I couldn’t ensure full, fair and open trials, and I resigned—asked to resign.” In April, he testified as a witness for Hamdan and offered a harsh critique of the military commission system.
Attorney General Mukasey’s plea to Congress related to legislating rules to avoid confusion and further delays in the large number of habeas corpus suits already filed with the federal appeals court in which Guantanamo detainees are challenging the basis of their detention. But with only five weeks remaining in its legislative calendar, it is doubtful that the current Congress could develop a plan that would be acceptable to the Bush Administration and to both Republican and Democratic lawmakers.
As the Hamdan trial began, leading human rights groups filed a court motion under the Freedom of Information Act (FOIA) for a preliminary injunction to compel the Department of Justice and other agencies to release information requested in 2004 and 2006. The requested information relates to the government’s program of secret or irregular detention.
The groups are Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law’s Center for Human Rights and Global Justice (NYU IHRC/CHRGJ).
“The more the DOJ stalls in admitting its role in the rendition, disappearances, and torture program, the more obvious it becomes that it has greatly contributed to the illegality that has come to define this administration over the past seven years,” said Jayne Huckerby, Research Director of the CHRGJ.
As the long–awaited trial of Guantanamo detainee Salim Ahmed Hamdan opened this week at the U.S. naval base in Cuba, human rights groups filed suit demanding that the Department of Justice (DOJ) produce documents related to the U.S. government’s ghost detention, torture, and extraordinary rendition program, and Attorney General Michael Mukasey called on Congress to quickly pass new legislation to guard against judges imposing a patchwork of conflicting rules that could produce confusion, more court challenges and even lengthier delays for prisoners who have been held at Guantanamo for as long as seven years.
Hamdan, Osama bin Laden's alleged former driver, is the first terror suspect to face trial at Guantanamo in seven years and the first test of whether that system can dispense fair and impartial justice. The charges against the Yemeni father of two will proceed before a military commission -- the first since the end of World War II -- with a jury of uniformed officers and rules that many constitutional authorities believe give great deference to the prosecution. Evidence obtained from "cruel" and "inhuman" interrogation methods as well as hearsay evidence will be admissible under certain circumstances. Hamdan faces a maximum of life in prison if convicted.
"This was supposed to be the premier system for bringing to justice the masterminds of the worst crime ever committed on U.S. soil," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The only result in seven years was the conviction of an Australian kangaroo trapper, who is now free."
He was referring to Australian David M. Hicks, who last year pleaded guilty to a terrorism charge in the only Guantanamo case to be fully adjudicated. Hicks was sent to Australia as part of a political deal and was later released from prison there.
Hamdan’s lawyers have argued he was beaten and abused at Guantanamo and subjected to a program of systematic sleep deprivation that they said constitutes torture.
Hamdan is one of about 20 prisoners whose cases are scheduled to be heard by juries composed of military service members rather than civilians.
The Hamdan trials, as well as those that are to follow, have been widely criticized by constitutional scholars. For example, Brian J. Foley, Visiting Associate law professor at Boston University, told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”
He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies.”
Defenders of the military commissions are defending its multi-layered due process procedures -- including the right to appeal a conviction to federal court -- that Congress added since Bush proposed the panels. Proponents of the new system say people who committed heinous acts against the United States do not deserve the constitutional protections of its federal courts.
Even if Hamdan is acquitted of conspiracy and material support of terrorism charges – an unlikely outcome -- he probably would not be released because he has been designated an "enemy combatant" by the military. The military contends that prosecutors would be unchanged by an acquittal even if international pressure mounts for his release.
Such international pressure came last week, when hundreds of European legislators filed a court motion to postpone Hamdan's trial while he challenges the legality of Military Commissions.
In a new legal brief, the Europeans said they were “concerned that (Hamdan's) imminent military commission trial will not exclude evidence that contravenes international standards of fair trial, due process and the protection of human rights."
But last week, a federal judge ruled that Hamdan’s Military Commission trial should continue, and suggested that appellate relief could come from the military’s own internal process or from the U.S. Federal Court of Appeals.
Hamdan has already become something of an icon in U.S. constitutional history. In a lawsuit brought by Hamdan's attorneys, the Supreme Court in 2006 struck down the military commission system, ruling that it was not authorized by federal law and violated the Geneva Conventions. Congress reacted by passing the Military Commissions Act of 2006, under which
Hamdan is being tried.
The Act banned evidence obtained using torture but said statements derived from harsh interrogations are allowable if the judge finds the evidence reliable and relevant. In 2005, Congress banned "cruel, inhuman, or degrading treatment," but statements made under such duress before that date could be admissible. Many of Hamdan's interrogations occurred before the congressional action, according to court testimony.
The Hamdan proceedings are seen by observers as a way to test the long-delayed military system on an alleged low-level al-Qaeda foot soldier and thus be primed for the trials of “high value” terrorist leaders to come. These include proceedings against Khalid Sheik Mohammed, self-proclaimed mastermind of the Sept. 11, 2001, attacks, Abu Zubaydah, and other accused planners.
One of the most prominent figures to argue for delay of Hamdan’s case is Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo. He resigned his position late last year in protest over what he said was political interference.
“My policy as chief prosecutor had been that we would not offer any evidence obtained by waterboarding, specifically, or any other interrogation techniques that were unduly coercive,” Davis said, adding, “I felt I couldn’t ensure full, fair and open trials, and I resigned—asked to resign.” In April, he testified as a witness for Hamdan and offered a harsh critique of the military commission system.
Attorney General Mukasey’s plea to Congress related to legislating rules to avoid confusion and further delays in the large number of habeas corpus suits already filed with the federal appeals court in which Guantanamo detainees are challenging the basis of their detention. But with only five weeks remaining in its legislative calendar, it is doubtful that the current Congress could develop a plan that would be acceptable to the Bush Administration and to both Republican and Democratic lawmakers.
As the Hamdan trial began, leading human rights groups filed a court motion under the Freedom of Information Act (FOIA) for a preliminary injunction to compel the Department of Justice and other agencies to release information requested in 2004 and 2006. The requested information relates to the government’s program of secret or irregular detention.
The groups are Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law’s Center for Human Rights and Global Justice (NYU IHRC/CHRGJ).
“The more the DOJ stalls in admitting its role in the rendition, disappearances, and torture program, the more obvious it becomes that it has greatly contributed to the illegality that has come to define this administration over the past seven years,” said Jayne Huckerby, Research Director of the CHRGJ.
Sunday, July 13, 2008
Free at Last, Free at Last – or Not
By William Fisher
As a federal appeals court ruled that the U.S. military improperly labeled a Chinese Muslim held at Guantanamo Bay an “enemy combatant” and ordered that he be released, transferred or granted a new hearing, an influential Congressional committee delivered a scathing criticism of China’s closed trial of 15 co-religionists on terrorism charges -- resulting in the immediate execution of two defendants, three suspended death sentences, and ten sentences to life imprisonment.
The Chinese Muslims are known as Uighurs, part of a Muslim minority from western China. They have been reliably reported to have been systematically persecuted by Chinese authorities.
The legislators’ charges came from leaders of the Congressional Human Rights Committee (CHRC), Co-Chairmen Rep. Jim McGovern, a Massachusetts Democrat, and Virginia Republican Rep. Frank Wolf. The two lawmakers condemned “the harsh pre-Olympic crackdown” in the Xinjiang Uighur Autonomous Region (XUAR) of China. They also expressed their strong concern over credible reports detailing abuses of due process and rule of law in the July 9th closed trial.
In a statement, Rep. Wolf said, “The Chinese government should not be permitted to use the War on Terror or Olympic security as a front to persecute the Uighurs. These ‘trials’ appear to be no more than a ploy to oppress religious freedom and ethnic minority groups.”
Rep. McGovern added, “China must allow minimum standards of international law, and must open trials to independent observers. China clearly fails in its obligations under international law and certainly fails in its commitments to improve human rights as the host of the 2008 Olympic Games.”
The group called on the Chinese government to “uphold the commitments they made to the international community when they were awarded the privilege of hosting the 2008 Olympic Games and improve their deplorable human rights record.”
The Uighurs also made other news in the U.S. last week, when a federal appeals court ruled that the U.S. military improperly labeled Huzaifa Parhat, a Chinese Muslim held at Guantanamo Bay, an “enemy combatant.” The Court ordered that he be released, transferred or granted a new hearing. The ruling by the U.S. Court of Appeals in Washington marks the first time a federal court has weighed in on the issue of a Guantanamo detainee’s classification and granted him the opportunity to try to secure his release through civilian courts.
A lawyer for Parhat, who has been kept virtually incommunicado for more than six years, said he and other members of Parhat’s legal team would seek to have him freed immediately.
Parhat is one of 17 Uighur Muslims still being held at Guantanamo even though the U.S. government acknowledges they pose no threat.
The decision was the latest in a series of legal setbacks for the George W. Bush administration and its efforts to defend the military commissions process at the U.S. naval base at Guantanamo Bay, Cuba.
The order came just days after the Supreme Court ruled that the approximately 270 remaining detainees at Guantanamo have a constitutional right of habeas corpus, which allows them to challenge their detention in federal courts. That ruling marked the third time since 2004 that the nation’s highest court has limited the government’s power to use the military to detain and prosecute foreign nationals at Guantanamo.
The appeals court specified that Parhat could “seek release immediately” through a writ of habeas corpus in light of the Supreme Court’s recent decision. Parhat’s case and scores like it had been put on hold until the Supreme Court made its ruling on the habeas corpus issue.
“Now all of these cases have been revived and this is the first case to move forward,” said David Cole, a constitutional law professor at Georgetown University. “And here is somebody that the military has been holding on to for six years and the federal court now says he shouldn’t have been held in the first place.”
He added, “Absent this independent judicial review, he might have been sitting there for another 10 to 15 years. Now he has a chance to find freedom,” said Cole, one of the nation’s preeminent constitutional scholars.
Two years ago, five Uighurs were released from Guantanamo to seek asylum in Albania, after the United States said it could not return them to China because they would face persecution there. The released Uighers live in an Albanian refugee camp, unable to speak the language and forbidden to work.
All of 17 Uighurs being held at Guantanamo have been cleared for release as part of annual reviews. The government says that, while they are still designated enemy combatants, they are not considered significant threats or to have further intelligence value.”
The Uighurs are part of a large group of Guantanamo detainees who have been cleared for release, but nonetheless remain in detention. The State Department claims it cannot find countries willing to accept these detainees. U.S authorities have balked at allowing the Uighurs into the United States.
Parhat, 37, and the other Uighurs were captured in Afghanistan after the Sept. 11 attacks. He insisted he sought refuge there from an oppressive Chinese government and never fought against the United States. The U.S. government has produced no evidence suggesting that he ever intended to fight, but it designated him an enemy combatant because of alleged links to the East Turkestan Islamic Movement, a separatist group demanding independence from China that Washington says has links to Al Qaeda.
While refusing to return the Uighers to China, the U.S. did allow Chinese officials to visit Guantanamo to interrogate the Uighur detainees.
Despite the court’s ruling, Parhat’s future is unclear. And while the U.S. government ponders its legal options, says Human Rights Watch, Parhat and his 16 fellow Uighurs continue their life in a cage.
Parhat wakes at 4:30 or 5:00 A.M., prays, goes back to sleep, walks in circles -- north, south, east, west -- round his 6-by-12 foot cell for an hour, goes back to sleep for another two or more hours, wakes and reads the Koran or a magazine (written in a language that he does not understand), pray, walks in circles once more, eats lunch, prays, walks in circles, prays, walk in circles, goes back to sleep at 10:00 p.m.
As a federal appeals court ruled that the U.S. military improperly labeled a Chinese Muslim held at Guantanamo Bay an “enemy combatant” and ordered that he be released, transferred or granted a new hearing, an influential Congressional committee delivered a scathing criticism of China’s closed trial of 15 co-religionists on terrorism charges -- resulting in the immediate execution of two defendants, three suspended death sentences, and ten sentences to life imprisonment.
The Chinese Muslims are known as Uighurs, part of a Muslim minority from western China. They have been reliably reported to have been systematically persecuted by Chinese authorities.
The legislators’ charges came from leaders of the Congressional Human Rights Committee (CHRC), Co-Chairmen Rep. Jim McGovern, a Massachusetts Democrat, and Virginia Republican Rep. Frank Wolf. The two lawmakers condemned “the harsh pre-Olympic crackdown” in the Xinjiang Uighur Autonomous Region (XUAR) of China. They also expressed their strong concern over credible reports detailing abuses of due process and rule of law in the July 9th closed trial.
In a statement, Rep. Wolf said, “The Chinese government should not be permitted to use the War on Terror or Olympic security as a front to persecute the Uighurs. These ‘trials’ appear to be no more than a ploy to oppress religious freedom and ethnic minority groups.”
Rep. McGovern added, “China must allow minimum standards of international law, and must open trials to independent observers. China clearly fails in its obligations under international law and certainly fails in its commitments to improve human rights as the host of the 2008 Olympic Games.”
The group called on the Chinese government to “uphold the commitments they made to the international community when they were awarded the privilege of hosting the 2008 Olympic Games and improve their deplorable human rights record.”
The Uighurs also made other news in the U.S. last week, when a federal appeals court ruled that the U.S. military improperly labeled Huzaifa Parhat, a Chinese Muslim held at Guantanamo Bay, an “enemy combatant.” The Court ordered that he be released, transferred or granted a new hearing. The ruling by the U.S. Court of Appeals in Washington marks the first time a federal court has weighed in on the issue of a Guantanamo detainee’s classification and granted him the opportunity to try to secure his release through civilian courts.
A lawyer for Parhat, who has been kept virtually incommunicado for more than six years, said he and other members of Parhat’s legal team would seek to have him freed immediately.
Parhat is one of 17 Uighur Muslims still being held at Guantanamo even though the U.S. government acknowledges they pose no threat.
The decision was the latest in a series of legal setbacks for the George W. Bush administration and its efforts to defend the military commissions process at the U.S. naval base at Guantanamo Bay, Cuba.
The order came just days after the Supreme Court ruled that the approximately 270 remaining detainees at Guantanamo have a constitutional right of habeas corpus, which allows them to challenge their detention in federal courts. That ruling marked the third time since 2004 that the nation’s highest court has limited the government’s power to use the military to detain and prosecute foreign nationals at Guantanamo.
The appeals court specified that Parhat could “seek release immediately” through a writ of habeas corpus in light of the Supreme Court’s recent decision. Parhat’s case and scores like it had been put on hold until the Supreme Court made its ruling on the habeas corpus issue.
“Now all of these cases have been revived and this is the first case to move forward,” said David Cole, a constitutional law professor at Georgetown University. “And here is somebody that the military has been holding on to for six years and the federal court now says he shouldn’t have been held in the first place.”
He added, “Absent this independent judicial review, he might have been sitting there for another 10 to 15 years. Now he has a chance to find freedom,” said Cole, one of the nation’s preeminent constitutional scholars.
Two years ago, five Uighurs were released from Guantanamo to seek asylum in Albania, after the United States said it could not return them to China because they would face persecution there. The released Uighers live in an Albanian refugee camp, unable to speak the language and forbidden to work.
All of 17 Uighurs being held at Guantanamo have been cleared for release as part of annual reviews. The government says that, while they are still designated enemy combatants, they are not considered significant threats or to have further intelligence value.”
The Uighurs are part of a large group of Guantanamo detainees who have been cleared for release, but nonetheless remain in detention. The State Department claims it cannot find countries willing to accept these detainees. U.S authorities have balked at allowing the Uighurs into the United States.
Parhat, 37, and the other Uighurs were captured in Afghanistan after the Sept. 11 attacks. He insisted he sought refuge there from an oppressive Chinese government and never fought against the United States. The U.S. government has produced no evidence suggesting that he ever intended to fight, but it designated him an enemy combatant because of alleged links to the East Turkestan Islamic Movement, a separatist group demanding independence from China that Washington says has links to Al Qaeda.
While refusing to return the Uighers to China, the U.S. did allow Chinese officials to visit Guantanamo to interrogate the Uighur detainees.
Despite the court’s ruling, Parhat’s future is unclear. And while the U.S. government ponders its legal options, says Human Rights Watch, Parhat and his 16 fellow Uighurs continue their life in a cage.
Parhat wakes at 4:30 or 5:00 A.M., prays, goes back to sleep, walks in circles -- north, south, east, west -- round his 6-by-12 foot cell for an hour, goes back to sleep for another two or more hours, wakes and reads the Koran or a magazine (written in a language that he does not understand), pray, walks in circles once more, eats lunch, prays, walks in circles, prays, walk in circles, goes back to sleep at 10:00 p.m.
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