By William Fisher
After almost eight years of George W. Bush’s secret government, “of the people, by the people, and for the people” has become a joke.
Not a joke like lipstick on a pig. A joke like pathetic.
Because government secrecy is one of a cornucopia of serious issues our presidential candidates are busy not discussing.
Consider the following:
In its “Secrecy Report Card 2008,” the advocacy group Open The Government concludes that the Bush Administration has “exercised unprecedented levels not only of restriction of access to information about federal government's policies and decisions, but also of suppression of discussion of those policies and their underpinnings and sources.”
Today, the report finds, the Bush Administration “continues to refuse to be held accountable to the public through the oversight responsibilities of Congress.”
It concludes, “We have been made less secure as a result and the open society on which we pride ourselves has been undermined and will take hard work to repair.”
Here are some of the report’s principal findings:
Classification activity remains significantly higher than before 2001. In 2006, the number of original classification decisions increased to 233,639, after dropping for the two previous years.
The government spent $195 maintaining the secrets already on the books for every one dollar it spent declassifying documents in 2007, a five per cent increase in one year. At the same time, fewer pages were declassified than in 2006. The nation’s 16 intelligence agencies, which account for a large segment of the declassification numbers, are excluded from the total reported figures.
Classified, or “black” programs accounted for about $31.9 billion, or 18 per cent of the fiscal year (FY) 2008 Department of Defense (DOD) acquisition funding requested in 2007. Classified acquisition funding has more than doubled in real terms since FY 1995.
Almost 22 million requests were received under the Freedom of Information Act (FOIA) in 2007, an increase of almost 2% over last year. The 25 departments and agencies that handle the bulk of the third-party information requests, however, received 63,000 fewer requests than 2006 -- but processed only 2,100 more.
In 2007, the total cost of FOIA implementation across the government increased 16%. But a 2008 study revealed that, in 2007, FOIA spending at 25 key agencies fell by $7 million to $233.8 million and the agencies put 209 fewer people to work processing FOIA requests.
In 2007, the federal government closed the lid on 128 patents. Overall, that brings the total number of inventions kept under "secrecy orders" to 5,002.
While the secretive Foreign Intelligence Surveillance Court (FISC) does not reveal much about its activities, the Department of Justice reported that, in 2007, the FISC approved 2,371 orders -- rejecting only three and approving two left over from the previous year. Since 2000, federal surveillance activity under the jurisdiction of FISC has risen for the 9th year in a row -- more than doubling during the Bush Administration.
FISC was established under the Foreign Intelligence Surveillance Act (FISA) in 1978 after revelations of the widespread wiretapping by the administration of Richard M. Nixon to spy on political and activist groups. Recently, efforts to reform the act have been triggered by the Bush Administration’s admission that it had conducted secret surveillance programs in the U.S. without warrants from the FISA court.
During FY 2007, suits brought by whistleblowers accounted for $1.45 billion of the $2 billion the United States obtained in settlements and judgments concerning fraud on the United States. However, the Department of Justice (DOJ) faces an ever-growing backlog of over 900 cases.
More than 25% of all contracts awarded by the federal government are not competed. In 2007, 26.2 percent ($114.2 billion) of federal contracts' dollars were completely uncompeted; only a third of contract dollars were subject to full and open competition. On average since 2000, more than 25% of all contract funding was not competed and fully and openly competed contracts have dropped by almost 25%.
Investigations by Congress and independent government agencies of the war in Iraq have revealed billions of dollars in no-bid contracts, covering everything from delivering food and water to U.S. troops to providing armed security for U.S. officials and visiting dignitaries. There have been widespread allegations of waste, fraud and abuse by contractors. Several have been convicted and prosecutions of others are pending.
In 2007, government agencies received 7,827 new initial requests for Mandatory Declassification Review (MDR), of which 88% were processed, resulting in the declassification of information in 431,371 pages: 75% in full; 18% in part; 7% remained classified in their entirety after review. For 2007, almost 5,000 initial requests -- 42% -- were carried over into 2008.
During 2007, government-wide, 64% of meetings of The Federal Advisory Committee were closed to the public. Excluding groups advising three agencies that historically have accounted for the majority of closed meetings, 15% of the remainder were closed -- a 24% increase over the number closed in 2006. These numbers do not reflect closed meetings of subcommittees and taskforces.
The Federal Advisory Committee Act was passed in 1972 to ensure that advice by the various advisory committees formed over the years is objective and accessible to the public.
In seven years, President Bush has issued at least 156 signing statements, challenging over 1000 provisions of laws. Eight were issued in 2007 alone.
The so-called “state secrets privilege” -- invoked only six times between 1953 and 1976 -- has been used by the Bush Administration a reported 45 times -- an average of 6.4 times per year in seven years. This is more than double the average (2.46) of the previous 24 years.
As you will recall, the “state secrets privilege” is a legal doctrine that contends that admission of certain information into court proceedings would endanger U.S. national security. The Bush Administration has frequently invoked the privilege to dismiss lawsuits that would be embarrassing to the government, and the courts have generally been deferential to the government’s claims.
National Security Letter (NSL) requests continued to rise; the 2007mumbers are still classified, but the recently unclassified new number for 2006 shows a 4.7 per cent increase in requests over 2005. Since enactment of the USA Patriot Act in 2001, the number of NSLs issued has seen an astronomical increase. And an admission from FBI Director Robert Mueller that his agency has committed multiple abuses of its NSL power.
The NSL provision of the Patriot Act radically expanded the authority of the Federal Bureau of Investigation (FBI) to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.
Through NSLs, the FBI is authorized to compile dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand.
All of which raises the question of what if anything our next president proposes to do to return our government to us, “the people.”
And whatever happened to the serious discussion of these kinds of critical issues that Messrs. Obama and McCain promised us? Both have been virtually speechless on this one.
Too busy, I guess, putting lipstick on their pigs.
Thursday, September 11, 2008
Monday, September 08, 2008
SARAH’S BOYKIN MOMENT
By William Fisher
So now we know about Alaska’s famous jet.
Thanks to that vast left-wing media conspiracy, we know Sarah Palin didn’t sell the thing on ebay.
We know her administration tried several times – and failed.
And we know that it was finally sold – at a loss – to businessman Larry Reynolds, an Alaska refugee from Texas, who was brought into the deal by a Palin pal, John L. Harris, the Speaker of Alaska’s House of Representatives. (Reynolds’ wife reportedly donated $1,000 to Harris’ campaign.)
But we also know that the day after the Republican Party’s convention, while campaigning with Governor Palin, John McCain told the ecstatic crowd, “She took the jet that was acquired by her predecessor and sold it on ebay... and made a profit."
What we don’t know is whether Mr. Straight-Talk knowingly lied, or whether he was simply parroting the talking points provided by his campaign aides (misinformation also confirmed by a Palin spokesperson).
If he was intentionally peddling misinformation, he lied. Sound familiar? It should; it’s a chapter straight out of the Bush/Rove playbook (let us not forget that this was precisely the kind of thing George W. Bush did to McCain in South Carolina in 2000).
And if McCain was simply playing Charlie McCarthy, it should remind us of Governor Palin’s vetting process and all the “judgment” that went into that process.
Either way, the ebay caper will likely be forgotten long before Election Day -- it’s already being dismissed by some as nothing worse than “good old American politics.”
Meanwhile, there’s an issue surfacing that’s far more serious than the sale of Alaska’s jet. It’s far more serious because it goes to the very heart of Governor Palin’s approach to governance.
The issue is God. Specifically, the ideological intersection between God and public policy.
Sarah Palin’s approach to public policy is God-driven. God’s on her side. She doesn’t just think it – that would imply some sort of rationality. She knows it. And that Bushian construct is arguably the scariest part of Palin being just a single beat away from a 72-year-old heart.
During a speech at a Pentecostal church, Palin exhorted the congregants to pray for our service members in Iraq who are “carrying out the will of the Lord.” The United States sent troops to that fight on a "task that is from God," she said.
She continued: "That's what we have to make sure that we're praying for, that there is a plan and that that plan is God's plan."
And, as if God didn’t already have enough on His plate, Palin told her church audience that God was also interested in pipelines, specifically the $30 billion national gas pipeline project that Palin was pushing for. She asked her church audience to pray for it. The pipeline, she said, was "God's will."
She told graduating students of the church's School of Ministry, "What I need to do is strike a deal with you guys." As they preached the love of Jesus throughout Alaska, she said, she'd work to implement God's will from the governor's office, including creating jobs by building a pipeline to bring North Slope natural gas to North American markets. "God's will has to be done in unifying people and companies to get that gas line built, so pray for that," she exhorted.
A pipeline -- God’s will?
So America’s voters will be violating God's will if they disagree with Gov. Sarah Palin's views on Iraq or energy policy? Does sound a tad that way, doesn’t it?
Now, I can’t read this kind of stuff without being reminded of the poster-boy for the God-is-on-our-side school of public policy.
That would be Lt. Gen. William G. "Jerry" Boykin, one-time commander of the Army's top-secret Delta Force and former Deputy Undersecretary of Defense for Intelligence.
This born-again evangelical, you may recall, was the guy who appeared in dress uniform and polished jump boots before a religious group in Oregon to declare that radical Islamists hated the United States "because we're a Christian nation, because our foundation and our roots are Judeo-Christian ... and the enemy is a guy named Satan."
Other tidbits of Boykin’s wisdom:
"I knew my God was bigger than his (a Somali warlord). I knew that my God was a real God and his was an idol.”
"We in the army of God, in the house of God, kingdom of God, have been raised for such a time as this (Iraq War)."
President Bush is “in the White House because God put him there."
Oh. I always knew there must be a reason, but I thought it was the Supreme Court. Now I know.
What Sarah Palin needs to know is that the world is complicated, short on absolutes and full of grays. But if God is your public policy advisor, there are no grays. There are no ambiguities. The world is black and white, good or evil.
From that theocratic starting point, public policy gets built on certitude and hubris. And we’ve all seen where that takes us.
So now we know about Alaska’s famous jet.
Thanks to that vast left-wing media conspiracy, we know Sarah Palin didn’t sell the thing on ebay.
We know her administration tried several times – and failed.
And we know that it was finally sold – at a loss – to businessman Larry Reynolds, an Alaska refugee from Texas, who was brought into the deal by a Palin pal, John L. Harris, the Speaker of Alaska’s House of Representatives. (Reynolds’ wife reportedly donated $1,000 to Harris’ campaign.)
But we also know that the day after the Republican Party’s convention, while campaigning with Governor Palin, John McCain told the ecstatic crowd, “She took the jet that was acquired by her predecessor and sold it on ebay... and made a profit."
What we don’t know is whether Mr. Straight-Talk knowingly lied, or whether he was simply parroting the talking points provided by his campaign aides (misinformation also confirmed by a Palin spokesperson).
If he was intentionally peddling misinformation, he lied. Sound familiar? It should; it’s a chapter straight out of the Bush/Rove playbook (let us not forget that this was precisely the kind of thing George W. Bush did to McCain in South Carolina in 2000).
And if McCain was simply playing Charlie McCarthy, it should remind us of Governor Palin’s vetting process and all the “judgment” that went into that process.
Either way, the ebay caper will likely be forgotten long before Election Day -- it’s already being dismissed by some as nothing worse than “good old American politics.”
Meanwhile, there’s an issue surfacing that’s far more serious than the sale of Alaska’s jet. It’s far more serious because it goes to the very heart of Governor Palin’s approach to governance.
The issue is God. Specifically, the ideological intersection between God and public policy.
Sarah Palin’s approach to public policy is God-driven. God’s on her side. She doesn’t just think it – that would imply some sort of rationality. She knows it. And that Bushian construct is arguably the scariest part of Palin being just a single beat away from a 72-year-old heart.
During a speech at a Pentecostal church, Palin exhorted the congregants to pray for our service members in Iraq who are “carrying out the will of the Lord.” The United States sent troops to that fight on a "task that is from God," she said.
She continued: "That's what we have to make sure that we're praying for, that there is a plan and that that plan is God's plan."
And, as if God didn’t already have enough on His plate, Palin told her church audience that God was also interested in pipelines, specifically the $30 billion national gas pipeline project that Palin was pushing for. She asked her church audience to pray for it. The pipeline, she said, was "God's will."
She told graduating students of the church's School of Ministry, "What I need to do is strike a deal with you guys." As they preached the love of Jesus throughout Alaska, she said, she'd work to implement God's will from the governor's office, including creating jobs by building a pipeline to bring North Slope natural gas to North American markets. "God's will has to be done in unifying people and companies to get that gas line built, so pray for that," she exhorted.
A pipeline -- God’s will?
So America’s voters will be violating God's will if they disagree with Gov. Sarah Palin's views on Iraq or energy policy? Does sound a tad that way, doesn’t it?
Now, I can’t read this kind of stuff without being reminded of the poster-boy for the God-is-on-our-side school of public policy.
That would be Lt. Gen. William G. "Jerry" Boykin, one-time commander of the Army's top-secret Delta Force and former Deputy Undersecretary of Defense for Intelligence.
This born-again evangelical, you may recall, was the guy who appeared in dress uniform and polished jump boots before a religious group in Oregon to declare that radical Islamists hated the United States "because we're a Christian nation, because our foundation and our roots are Judeo-Christian ... and the enemy is a guy named Satan."
Other tidbits of Boykin’s wisdom:
"I knew my God was bigger than his (a Somali warlord). I knew that my God was a real God and his was an idol.”
"We in the army of God, in the house of God, kingdom of God, have been raised for such a time as this (Iraq War)."
President Bush is “in the White House because God put him there."
Oh. I always knew there must be a reason, but I thought it was the Supreme Court. Now I know.
What Sarah Palin needs to know is that the world is complicated, short on absolutes and full of grays. But if God is your public policy advisor, there are no grays. There are no ambiguities. The world is black and white, good or evil.
From that theocratic starting point, public policy gets built on certitude and hubris. And we’ve all seen where that takes us.
Thursday, September 04, 2008
McCain: Mushy Maverick?
By William Fisher
Cruel, inhuman and degrading treatment of prisoners is an issue about which John McCain cares deeply. He should: As we all know, that’s exactly what he endured for more than five years in the Hanoi Hilton during the Vietnam War.
That’s why it’s unsurprising that, back in 2005, McCain filed an amendment to a Defense Department bill explicitly banning the use of cruel, inhuman and degrading treatment by U.S. personnel anywhere in the world, and prohibiting U.S. military interrogators from using interrogation techniques not listed in the U.S. Army Field Manual on Intelligence Interrogation.
President George W. Bush wasn’t happy. The White House tried just about everything to kill the McCain amendment. Vice President Dick Cheney lobbied Congress to exempt the CIA from any interrogation limits, and Bush threatened to veto the bill, arguing that the executive branch has exclusive authority over war policy.
But after veto-proof bipartisan majorities in both houses of Congress approved the measure, Bush called a press conference with McCain, praised the amendment, and said he would accept it. Bush finally signed the Detainee Treatment Act in early 2006.
But a couple of weeks later, Bush quietly issued one of his famous “signing statements.” That statement gave the President the right to bypass the law under his powers as commander in chief.
Bush wrote: ''The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”
Meaning that Bush would be free to ignore U.S. law whenever he thought he should.
Now it was John McCain’s turn to be outraged. And he appeared to be. He publicly rebuked President Bush’s action. He said he would "be one of the first to support going to the United States Supreme Court" if the president indicated through a signing statement that he was "not going to abide" by a law passed by Congress. And he threatened heightened Congressional scrutiny over the Administration’s implementation of the new law.
Well President Bush could not have been clearer. “Not going to abide” was precisely what the President indicated. And McCain did what?
Nothing.
He told Chris Matthews on Hardball, "I would never issue a signing statement. It is wrong, and it should not be done." But he didn’t go anywhere near a court to challenge the statement the president had just signed. Nor did he hold a single oversight hearing on the President’s administration of the DTA.
So what happened to Mr. Maverick?
He caved.
Which leaves us with this question: If John McCain was prepared to cave on an issue that is at the very heart of his personal campaign narrative, shouldn’t we all be wondering what else he’ll be ready to cave on?
Cruel, inhuman and degrading treatment of prisoners is an issue about which John McCain cares deeply. He should: As we all know, that’s exactly what he endured for more than five years in the Hanoi Hilton during the Vietnam War.
That’s why it’s unsurprising that, back in 2005, McCain filed an amendment to a Defense Department bill explicitly banning the use of cruel, inhuman and degrading treatment by U.S. personnel anywhere in the world, and prohibiting U.S. military interrogators from using interrogation techniques not listed in the U.S. Army Field Manual on Intelligence Interrogation.
President George W. Bush wasn’t happy. The White House tried just about everything to kill the McCain amendment. Vice President Dick Cheney lobbied Congress to exempt the CIA from any interrogation limits, and Bush threatened to veto the bill, arguing that the executive branch has exclusive authority over war policy.
But after veto-proof bipartisan majorities in both houses of Congress approved the measure, Bush called a press conference with McCain, praised the amendment, and said he would accept it. Bush finally signed the Detainee Treatment Act in early 2006.
But a couple of weeks later, Bush quietly issued one of his famous “signing statements.” That statement gave the President the right to bypass the law under his powers as commander in chief.
Bush wrote: ''The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”
Meaning that Bush would be free to ignore U.S. law whenever he thought he should.
Now it was John McCain’s turn to be outraged. And he appeared to be. He publicly rebuked President Bush’s action. He said he would "be one of the first to support going to the United States Supreme Court" if the president indicated through a signing statement that he was "not going to abide" by a law passed by Congress. And he threatened heightened Congressional scrutiny over the Administration’s implementation of the new law.
Well President Bush could not have been clearer. “Not going to abide” was precisely what the President indicated. And McCain did what?
Nothing.
He told Chris Matthews on Hardball, "I would never issue a signing statement. It is wrong, and it should not be done." But he didn’t go anywhere near a court to challenge the statement the president had just signed. Nor did he hold a single oversight hearing on the President’s administration of the DTA.
So what happened to Mr. Maverick?
He caved.
Which leaves us with this question: If John McCain was prepared to cave on an issue that is at the very heart of his personal campaign narrative, shouldn’t we all be wondering what else he’ll be ready to cave on?
Saturday, August 30, 2008
The Silence of the Shams
By William Fisher
OK, can we please forget the unforgettable Sarah Palin for five minutes and focus on one of the dozens of issues that obviously look like third rails to candidates of both parties?
Let’s spend a few minutes pretending:
You’re an American Muslim. You live in Dearborn, Michigan. You work at Walmart. You have three kids, two cars and a mortgage. You’re a compulsive voter.
This is the time of the year – the month of Ramadan -- when you traditionally spend a lot of time thinking about what your parents called “zakat” – giving to the less fortunate. It’s a basic tenet of Islam.
This year, you’d like to do something to help Palestinian families in Gaza – that dreadful place where jobs, food, medical help, shelter, education – and just about everything else – is in desperately short supply.
So you whip out your checkbook and send off your hundred bucks to a local charity that has a long record of supporting Palestinian families.
You’ve fulfilled your religious obligation. You feel good about it. Then you get on with the rest of your life.
But, a while later, you pick up your local paper and there’s a front-page story that tells you the charity you wrote the check to has been closed down by the federal government for providing “material support” to a terrorist organization.
Its records and equipment have been seized by the Feds and its assets have been frozen. Among its assets is your hundred bucks.
You phone the charity, but the number has been disconnected. You watch the papers for news about how this happened. There’s almost no reporting on the story. The charity’s lawyer denies that his client supports terrorist organizations. The government holds a press conference where an official repeats the charge but gives no details.
Unusual? Hardly. Millions of generous Americans have had the same experience. And they are still having them.
How does this happen?
In the months following the terrorist attacks of September 11, 2001, the U.S. government launched its "global war on terror" by rounding up thousands of "Middle Eastern-looking" men and women, jailing them without charges or access to lawyers. After months, it had accused none of them of terror-related crimes, convicted no one, and ended up deporting some for non-criminal immigration violations.
At about the same time, the government opened up a second front against charitable organizations it suspected of providing financial or other material assistance to groups the government designates as "terrorist." While the campaign applied to all domestic nonprofit organizations, the lion's share of scrutiny, suspicion, and preemptive action fell on groups that support Muslim causes.
Since 9/11, there has been an exponential increase in government surveillance of the financial practices of charities serving Muslim communities both in the U.S. Numerous charities have been shut down, their records seized and their assets frozen – all with virtually no due process. But only one such organization – the Holy Land Foundation -- has been brought to trial. That trial ended in the exoneration of one of the defendants and a hung jury on the fate of the others. The government is about to re-try the case.
In 2005, the American Civil Liberties Union (ACLU) launched its Spy Files Project and uncovered an intricate system of domestic spying on U.S. nonprofits largely condoned by expanded counterterrorism powers within the USA PATRIOT Act.
Meanwhile, none of the assets frozen by the Treasury Department – which administers the scrutiny of charitable organizations – has been returned, despite numerous requests. These assets include funds the charities require to pay for their legal defense.
The government’s pursuit of not-for-profit groups that support Muslim causes has caused a dramatic decrease in contributions and has left donors and volunteers confused about which organizations and institutions they can trust.
Now, as American Muslims again mark the beginning of Ramadan, charitable organizations serving the American Muslim community are taking what some observers believe is a desperate last step to keep the U.S. government from shutting them down.
Muslim Advocates (MA), a San Francisco-based national educational and advocacy organization established by a 500-plus network of Muslim American lawyers, is teaming with the Better Business Bureau (BBB) Wise Giving Alliance to launch a new initiative to improve the fiscal management and administration of American Muslim charitable organizations.
Aziz Ahmad, an MA staff attorney, told us that sponsors of the program hope it will begin to restore donors’ confidence in charitable organizations that support Muslim causes. He added: “We hope the government will be less inclined to prosecute American Muslim nonprofits and mosques for supporting terrorist causes if they demonstrate that they meet the highest standards of legal compliance, financial accountability and good governance.”
The new initiative combines MA’s legal expertise and the BBB’s reputation as an independent charity evaluator with over 1,200 charities reviewed to date. It will provide charitable organizations with free services including assistance a network of attorneys and accountants to assess their current practices and identify information needed for meaningful review by the BBB’s Wise Giving Alliance.
The Alliance will also conduct evaluations to determine that an organization has met its 20 Standards of Charity Accountability. These are considered by many to be the toughest, most comprehensive governance and fiscal management standards in the nonprofit sector.
At the same time, MA will produce informational materials and host a series of free educational seminars for nonprofit leaders in eight cities across the U.S., beginning in the San Francisco Bay area in October 2008. These seminars will advise Muslim charities on a wide range of issues, including how to improve their governance, increase transparency, and ensure legal compliance with anti-terror financing laws and regulations. Thus far, seven charities have signed on to the program, Ahmad told us.
But the BBB’s Wise Giving standards are applicable to charitable organizations generally and do not specifically address the unique challenges that have been faced by Muslim not-for-profits since the start of the “war on terror.” So what remains unclear is how improvement of these organizations’ professional practices will influence the government’s administration of the “material support” statute and regulations.
A number of authorities in the not-for-profit sector doubt that the government will be deterred by the new MA/BBB initiative. Kay Guinane, director of Nonprofit Speech Rights at OMB Watch, a widely respected government watchdog organization, told us she believes the MA/BBB initiative is “useful first step toward keeping Muslim charities from being shut down.” However, she said, “fundamental change requires a change in the government’s basic approach to interpreting the law” which she says is “ultimately counterproductive.”
She added, “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.”
(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.)
In a recent report, Guinane’s organization charged that 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.”
The report found 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.”
It concluded that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accused 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. And it contended that federal agencies “ignore nonprofits’ calls for change,” and that “Congress has not utilized its oversight powers to review counterterrorism programs.”
The result, the report said, is that the U.S. nonprofit community today “operates in fear of what may spark (the government) to use its power to shut them down.”
The Treasury Department’s Office of Foreign Assets Control (OFAC) was the target of much of the report’s criticism of the government’s approach. After 9/11, Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were allegedly 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.
Guinane told us that the OFAC terrorist “watchlist” was originally designed to identify drug kingpins and other more conventional criminals and is of little value due to “questionable accuracy” caused by numerous duplications. Moreover, she said, most not-for-profit groups, especially smaller ones, lack the resources to monitor it.
She added, “I don’t think there should be special rules governing not-for-profits that support Muslim causes. This has evolved into a bizarre regulatory regime that is unduly discriminatory.”
So where do our presidential wannabees – and both parties’ candidates for Congress -- stand on this issue? Nowhere. They may disagree on practically everything, but they appear to be in total agreement that defending the civil rights of Muslim Americans is their ticket to political oblivion.
But this is not just about Muslim Americans. It’s about fundamental fairness. It’s about the injustices that befall ordinary Americans as a result of bad law, poorly administered. And it’s about politicians all too willing to exploit an environment of fear -- or, just as bad, all too willing to remain silent – rather than risking losing an election.
OK, can we please forget the unforgettable Sarah Palin for five minutes and focus on one of the dozens of issues that obviously look like third rails to candidates of both parties?
Let’s spend a few minutes pretending:
You’re an American Muslim. You live in Dearborn, Michigan. You work at Walmart. You have three kids, two cars and a mortgage. You’re a compulsive voter.
This is the time of the year – the month of Ramadan -- when you traditionally spend a lot of time thinking about what your parents called “zakat” – giving to the less fortunate. It’s a basic tenet of Islam.
This year, you’d like to do something to help Palestinian families in Gaza – that dreadful place where jobs, food, medical help, shelter, education – and just about everything else – is in desperately short supply.
So you whip out your checkbook and send off your hundred bucks to a local charity that has a long record of supporting Palestinian families.
You’ve fulfilled your religious obligation. You feel good about it. Then you get on with the rest of your life.
But, a while later, you pick up your local paper and there’s a front-page story that tells you the charity you wrote the check to has been closed down by the federal government for providing “material support” to a terrorist organization.
Its records and equipment have been seized by the Feds and its assets have been frozen. Among its assets is your hundred bucks.
You phone the charity, but the number has been disconnected. You watch the papers for news about how this happened. There’s almost no reporting on the story. The charity’s lawyer denies that his client supports terrorist organizations. The government holds a press conference where an official repeats the charge but gives no details.
Unusual? Hardly. Millions of generous Americans have had the same experience. And they are still having them.
How does this happen?
In the months following the terrorist attacks of September 11, 2001, the U.S. government launched its "global war on terror" by rounding up thousands of "Middle Eastern-looking" men and women, jailing them without charges or access to lawyers. After months, it had accused none of them of terror-related crimes, convicted no one, and ended up deporting some for non-criminal immigration violations.
At about the same time, the government opened up a second front against charitable organizations it suspected of providing financial or other material assistance to groups the government designates as "terrorist." While the campaign applied to all domestic nonprofit organizations, the lion's share of scrutiny, suspicion, and preemptive action fell on groups that support Muslim causes.
Since 9/11, there has been an exponential increase in government surveillance of the financial practices of charities serving Muslim communities both in the U.S. Numerous charities have been shut down, their records seized and their assets frozen – all with virtually no due process. But only one such organization – the Holy Land Foundation -- has been brought to trial. That trial ended in the exoneration of one of the defendants and a hung jury on the fate of the others. The government is about to re-try the case.
In 2005, the American Civil Liberties Union (ACLU) launched its Spy Files Project and uncovered an intricate system of domestic spying on U.S. nonprofits largely condoned by expanded counterterrorism powers within the USA PATRIOT Act.
Meanwhile, none of the assets frozen by the Treasury Department – which administers the scrutiny of charitable organizations – has been returned, despite numerous requests. These assets include funds the charities require to pay for their legal defense.
The government’s pursuit of not-for-profit groups that support Muslim causes has caused a dramatic decrease in contributions and has left donors and volunteers confused about which organizations and institutions they can trust.
Now, as American Muslims again mark the beginning of Ramadan, charitable organizations serving the American Muslim community are taking what some observers believe is a desperate last step to keep the U.S. government from shutting them down.
Muslim Advocates (MA), a San Francisco-based national educational and advocacy organization established by a 500-plus network of Muslim American lawyers, is teaming with the Better Business Bureau (BBB) Wise Giving Alliance to launch a new initiative to improve the fiscal management and administration of American Muslim charitable organizations.
Aziz Ahmad, an MA staff attorney, told us that sponsors of the program hope it will begin to restore donors’ confidence in charitable organizations that support Muslim causes. He added: “We hope the government will be less inclined to prosecute American Muslim nonprofits and mosques for supporting terrorist causes if they demonstrate that they meet the highest standards of legal compliance, financial accountability and good governance.”
The new initiative combines MA’s legal expertise and the BBB’s reputation as an independent charity evaluator with over 1,200 charities reviewed to date. It will provide charitable organizations with free services including assistance a network of attorneys and accountants to assess their current practices and identify information needed for meaningful review by the BBB’s Wise Giving Alliance.
The Alliance will also conduct evaluations to determine that an organization has met its 20 Standards of Charity Accountability. These are considered by many to be the toughest, most comprehensive governance and fiscal management standards in the nonprofit sector.
At the same time, MA will produce informational materials and host a series of free educational seminars for nonprofit leaders in eight cities across the U.S., beginning in the San Francisco Bay area in October 2008. These seminars will advise Muslim charities on a wide range of issues, including how to improve their governance, increase transparency, and ensure legal compliance with anti-terror financing laws and regulations. Thus far, seven charities have signed on to the program, Ahmad told us.
But the BBB’s Wise Giving standards are applicable to charitable organizations generally and do not specifically address the unique challenges that have been faced by Muslim not-for-profits since the start of the “war on terror.” So what remains unclear is how improvement of these organizations’ professional practices will influence the government’s administration of the “material support” statute and regulations.
A number of authorities in the not-for-profit sector doubt that the government will be deterred by the new MA/BBB initiative. Kay Guinane, director of Nonprofit Speech Rights at OMB Watch, a widely respected government watchdog organization, told us she believes the MA/BBB initiative is “useful first step toward keeping Muslim charities from being shut down.” However, she said, “fundamental change requires a change in the government’s basic approach to interpreting the law” which she says is “ultimately counterproductive.”
She added, “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.”
(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.)
In a recent report, Guinane’s organization charged that 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.”
The report found 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.”
It concluded that the government views nonprofits as “conduits for terrorist funding and a breeding ground for aggressive dissent.” It accused 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. And it contended that federal agencies “ignore nonprofits’ calls for change,” and that “Congress has not utilized its oversight powers to review counterterrorism programs.”
The result, the report said, is that the U.S. nonprofit community today “operates in fear of what may spark (the government) to use its power to shut them down.”
The Treasury Department’s Office of Foreign Assets Control (OFAC) was the target of much of the report’s criticism of the government’s approach. After 9/11, Congress gave the government sweeping new powers to crack down on not-for-profit organizations that were allegedly 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.
Guinane told us that the OFAC terrorist “watchlist” was originally designed to identify drug kingpins and other more conventional criminals and is of little value due to “questionable accuracy” caused by numerous duplications. Moreover, she said, most not-for-profit groups, especially smaller ones, lack the resources to monitor it.
She added, “I don’t think there should be special rules governing not-for-profits that support Muslim causes. This has evolved into a bizarre regulatory regime that is unduly discriminatory.”
So where do our presidential wannabees – and both parties’ candidates for Congress -- stand on this issue? Nowhere. They may disagree on practically everything, but they appear to be in total agreement that defending the civil rights of Muslim Americans is their ticket to political oblivion.
But this is not just about Muslim Americans. It’s about fundamental fairness. It’s about the injustices that befall ordinary Americans as a result of bad law, poorly administered. And it’s about politicians all too willing to exploit an environment of fear -- or, just as bad, all too willing to remain silent – rather than risking losing an election.
Saturday, August 16, 2008
THOSE PESKY ACTIVIST JUDGES
By William Fisher
This column is for those of you who despair about "activist" judges becoming the Bush Administration's echo chamber and look to Congress to solve the nation's problems. Here are a few things you might want to think about:
Since Dubya launched our "global war on terror," it was not Congress but the Courts that handed the president his most stinging defeats. And it was Congress, not the Courts, who proved to be the supine servants of the Bush Administration.
Case in point: In 2004, Yaser Esam Hamdi, a U.S. citizen being detained indefinitely at Guantanamo as an "illegal enemy combatant," sued President Bush, claiming he was denied his right to have the courts adjudicate the basis of his detention. A U.S. District Court ruled against him. But the Supreme Court reversed the dismissal of his habeas corpus claim. It recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
Case in point: In the same year, the Supreme Court in a case called Rasul v. Bush, established that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.
Case in point: Two years later, it was the Supreme Court that held 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."
That decision led to Congress's passage of the Military Commissions Act, which most legal scholars find to be irreparably flawed. The challenge to that Act of Congress eventually found its way to the Supreme Court. It was brought by Salim Hamdan, Osama bin Laden's driver, who recently became the first detainee in seven years to face any kind of trial at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious charge brought against him - conspiracy to kill Americans - and convicted him of materially supporting terrorism. He could be a free man before the end of the year.
Case in point: Also in 2006, it was a federal judge in Detroit who ruled that the Bush administration's "warrantless wiretapping" program was illegal. After the Supreme Court refused to review that decision, the Bush Administration submitted the program for approval by the FISA (Foreign Intelligence Surveillance Act) court. Within months, that secret spying court had also declared the program illegal.
It was Congress, not the judiciary, which then passed legislation not only approving the warrantless domestic wiretapping powers, but which granted immunity to the telecom companies that were being sued for helping with the program.
Now comes more potential bad news for the Administration. In a breathtakingly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush Administration's rendition program.
Why is this move by the Second U.S. Circuit Court of Appeals in Manhattan unusual? Well, first, the full circuit assembles for a case only once or twice a year. Secondly, the plaintiff's attorneys never asked for a full hearing. Third, any full airing of this particular case is certain to result in embarrassment to the Bush Administration.
Bringing the suit is Maher Arar, a telecommunications engineer from Canada, who was detained at Kennedy Airport in 2002, flown to Jordan and expelled to Syria, where he was held for ten months and said he was tortured.
In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to Al Qaeda. The commission found that the Canadians had provided American officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.
The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been." In June, the Department of Homeland Security's inspector general said at a Congressional hearing that the Justice Department's ethics office was reviewing the decision to send Arar to Syria.
The rehearing will take place in December, this time before of all 13 appeals judges.
The defendants include John Ashcroft, who was attorney general when Mr. Arar was stopped at Kennedy airport on his way home to Canada from a vacation because immigration officers found his name on a terrorist watch list. Mr. Arar accuses Ashcroft and other Bush administration officials at the time - among them Robert S. Mueller III, director of the Federal Bureau of Investigation, and Tom Ridge, the director of homeland security - of violating federal law and his civil rights.
In the original decision, the three-judge panel affirmed a lower-court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint. The reason, they said, was that technically, Arar was never in the United States.
But one of the three judges dissented, blasting as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.
That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at J.F.K. Airport."
Legal experts believe the rehearing resulted from a request by one of the Appeals Court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.
However, a full U.S. appeals court hearing is far from a slam-dunk. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar's case in open court would compromise America's national security.
However much we may applaud court rulings in the Guantanamo and warrantless wiretapping cases, it is in the area of "state secrets" that the courts have generally been almost universally deferential to the claims of the Executive Branch. No one denies that there are genuine secrets that any government has the right - the obligation - to keep. But, once rare, use of the state secrets privilege has increased exponentially during the Bush years, and the courts with only a few exceptions have been quick to support the government's assertions.
So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.
The bottom line is that invocation of the state secrets privilege has kept many cases from ever coming before any court. It is an essential part of the curtain of secrecy the Bush Administration has built, often for nothing more than avoiding political embarrassment.
There are efforts in Congress to enact legislation to limit the government's use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that attempts to do just that -- it would require the government to actually produce the evidence it says is protected for review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee (only one Republican, Sen. Arlen Specter (R-Pa.) voted to move it to the Senate floor). That makes the future of the measure unclear.
Also unclear is the role the Judiciary will play in a new Administration. Several of the current Supreme Court justices are nearing retirement age. John McCain has vowed to appoint replacements in the mould of Roberts, Alito, Scalia and Thomas, i.e. the kinds of conservative judges who have predictably dissented in cases such as those brought by Guantanamo detainees in particular and those involving expansionist presidential power generally. But it's unclear how a President McCain would get their nominations through a Congress dominated by Democrats.
But neither McCain nor Obama have had much to say about issues such as the role of the Judiciary or the limits of presidential power. Apparently these are concerns that both presidential candidates appear to think are so far down in the weeds that American voters won't understand their importance. Or too politically dangerous to discuss. Whatever their reasons, both candidates have been sadly silent on these issues.
Yet voters have a right to demand that their presidential candidates give them more credit for being able to understand complex issues. They need to demonstrate that they can explain these issues in language ordinary voters will understand. They need to tell voters how they would approach those issues. And they need do a better job of explaining the centrality of these issues to the rule of law and to the very definition of who we are as a nation.
This column is for those of you who despair about "activist" judges becoming the Bush Administration's echo chamber and look to Congress to solve the nation's problems. Here are a few things you might want to think about:
Since Dubya launched our "global war on terror," it was not Congress but the Courts that handed the president his most stinging defeats. And it was Congress, not the Courts, who proved to be the supine servants of the Bush Administration.
Case in point: In 2004, Yaser Esam Hamdi, a U.S. citizen being detained indefinitely at Guantanamo as an "illegal enemy combatant," sued President Bush, claiming he was denied his right to have the courts adjudicate the basis of his detention. A U.S. District Court ruled against him. But the Supreme Court reversed the dismissal of his habeas corpus claim. It recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
Case in point: In the same year, the Supreme Court in a case called Rasul v. Bush, established that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.
Case in point: Two years later, it was the Supreme Court that held 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."
That decision led to Congress's passage of the Military Commissions Act, which most legal scholars find to be irreparably flawed. The challenge to that Act of Congress eventually found its way to the Supreme Court. It was brought by Salim Hamdan, Osama bin Laden's driver, who recently became the first detainee in seven years to face any kind of trial at Guantanamo. A Pentagon-appointed jury found him not guilty of the most serious charge brought against him - conspiracy to kill Americans - and convicted him of materially supporting terrorism. He could be a free man before the end of the year.
Case in point: Also in 2006, it was a federal judge in Detroit who ruled that the Bush administration's "warrantless wiretapping" program was illegal. After the Supreme Court refused to review that decision, the Bush Administration submitted the program for approval by the FISA (Foreign Intelligence Surveillance Act) court. Within months, that secret spying court had also declared the program illegal.
It was Congress, not the judiciary, which then passed legislation not only approving the warrantless domestic wiretapping powers, but which granted immunity to the telecom companies that were being sued for helping with the program.
Now comes more potential bad news for the Administration. In a breathtakingly unusual move, a federal appeals court in New York last week decided to rehear a case it had decided in June, when a three-judge panel dismissed a lawsuit filed by the man who has arguably become the poster child for the Bush Administration's rendition program.
Why is this move by the Second U.S. Circuit Court of Appeals in Manhattan unusual? Well, first, the full circuit assembles for a case only once or twice a year. Secondly, the plaintiff's attorneys never asked for a full hearing. Third, any full airing of this particular case is certain to result in embarrassment to the Bush Administration.
Bringing the suit is Maher Arar, a telecommunications engineer from Canada, who was detained at Kennedy Airport in 2002, flown to Jordan and expelled to Syria, where he was held for ten months and said he was tortured.
In Canada, a high-level commission concluded that the Canadian police and intelligence officials had erroneously linked Arar to Al Qaeda. The commission found that the Canadians had provided American officials with misinformation. The commission also concluded that Canadian officials had been behind a campaign to discredit Arar after he was released from Syria and arrived in Canada in October 2003.
The Canadian government issued a formal apology to Arar last year and paid him $9.75 million. Secretary of State Condoleezza Rice said last year that the matter had not been "handled as it should have been." In June, the Department of Homeland Security's inspector general said at a Congressional hearing that the Justice Department's ethics office was reviewing the decision to send Arar to Syria.
The rehearing will take place in December, this time before of all 13 appeals judges.
The defendants include John Ashcroft, who was attorney general when Mr. Arar was stopped at Kennedy airport on his way home to Canada from a vacation because immigration officers found his name on a terrorist watch list. Mr. Arar accuses Ashcroft and other Bush administration officials at the time - among them Robert S. Mueller III, director of the Federal Bureau of Investigation, and Tom Ridge, the director of homeland security - of violating federal law and his civil rights.
In the original decision, the three-judge panel affirmed a lower-court decision, ruling 2 to 1 that the federal courts lacked jurisdiction to hear Arar's complaint. The reason, they said, was that technically, Arar was never in the United States.
But one of the three judges dissented, blasting as "a legal fiction" the idea that Arar was not in this country when he was apprehended at Kennedy.
That judge, Robert D. Sack, a Clinton appointee, said that Arar's case should continue because Arar "was, in effect, abducted while attempting to transit at J.F.K. Airport."
Legal experts believe the rehearing resulted from a request by one of the Appeals Court judges, though it is not known whether it was Judge Sack. The request was granted by a majority of the appeals judges.
However, a full U.S. appeals court hearing is far from a slam-dunk. Even if Arar is able to establish that he has standing to bring his suit, the chances are the government will invoke its "state secrets privilege," claiming that disclosure of the details of Arar's case in open court would compromise America's national security.
However much we may applaud court rulings in the Guantanamo and warrantless wiretapping cases, it is in the area of "state secrets" that the courts have generally been almost universally deferential to the claims of the Executive Branch. No one denies that there are genuine secrets that any government has the right - the obligation - to keep. But, once rare, use of the state secrets privilege has increased exponentially during the Bush years, and the courts with only a few exceptions have been quick to support the government's assertions.
So rare is a judge's dismissal of a government "state secrets" motion that, when it happens, it becomes front-page news. That's what happened when a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list. The plaintiff, a local businessman, sued to discover whether his name was on the list. The government called that a "state secret," but the judge disagreed. The government is appealing the decision.
The bottom line is that invocation of the state secrets privilege has kept many cases from ever coming before any court. It is an essential part of the curtain of secrecy the Bush Administration has built, often for nothing more than avoiding political embarrassment.
There are efforts in Congress to enact legislation to limit the government's use of the state secrets privilege. The Senate Judiciary Committee has approved a bill that attempts to do just that -- it would require the government to actually produce the evidence it says is protected for review by a federal judge in a classified setting. But the bill lacks bipartisan support on the committee (only one Republican, Sen. Arlen Specter (R-Pa.) voted to move it to the Senate floor). That makes the future of the measure unclear.
Also unclear is the role the Judiciary will play in a new Administration. Several of the current Supreme Court justices are nearing retirement age. John McCain has vowed to appoint replacements in the mould of Roberts, Alito, Scalia and Thomas, i.e. the kinds of conservative judges who have predictably dissented in cases such as those brought by Guantanamo detainees in particular and those involving expansionist presidential power generally. But it's unclear how a President McCain would get their nominations through a Congress dominated by Democrats.
But neither McCain nor Obama have had much to say about issues such as the role of the Judiciary or the limits of presidential power. Apparently these are concerns that both presidential candidates appear to think are so far down in the weeds that American voters won't understand their importance. Or too politically dangerous to discuss. Whatever their reasons, both candidates have been sadly silent on these issues.
Yet voters have a right to demand that their presidential candidates give them more credit for being able to understand complex issues. They need to demonstrate that they can explain these issues in language ordinary voters will understand. They need to tell voters how they would approach those issues. And they need do a better job of explaining the centrality of these issues to the rule of law and to the very definition of who we are as a nation.
Wednesday, August 13, 2008
OUTSOURCING SECURITY
By William Fisher
As a new report forecasts that the 190,000 private contractors in Iraq and neighboring countries will cost U.S. taxpayers more than $100 billion by the end of 2008, an under-the-radar Florida court case suggests that President George W. Bush – a staunch contractor supporter -- is preparing to throw security firms such as Blackwater under the political bus.
In the Florida case, relatives of three American servicemen killed in the 2004 crash of an aircraft owned by Blackwater Aviation in Afghanistan are suing the company for damages, based in part of U.S. government reviews that concluded that errors committed by Blackwater staff were responsible for the deaths. This week, despite President George W. Bush's support for what he has called the critical roles played by overseas contractors, his Administration failed to meet a deadline for presenting the court with any defense of Blackwater.
The Administration’s silence has caused consternation among Blackwater and its supporters. Erik Prince, Blackwater's chairman, told TIME magazine, "After the President has said that, as Commander-in-Chief, he is ultimately responsible for contractors on the battlefield it is disappointing that his Administration has been unwilling to make that interest clear before the courts.”
Some observers have speculated that the Administration’s silence can be attributed to the controversial nature of the contractor issue and a reluctance to address it during a hotly contested presidential election year.
The Florida battle, which could eventually find its way to the U.S. Supreme Court, turns on the question of whether Blackwater and other overseas contractors are subject to U.S. law. That question arises because of a decree issued in 2005 by the then U.S. Iraq Administrator, L. Paul Bremer, granting contractors legal immunity. The Iraqi government claims that Blackwater and other contractors have been responsible for the deaths of Iraqi civilians and wants to make them subject to Iraqi law.
The U.S. has resisted this move, which is thought to be part of the ongoing stalemate in negotiations with Iraq over the future status of U.S. forces in that country.
The White House has also attacked a bill recently passed by the House of Representatives that would place combat-zone contractors under the jurisdiction of U.S. courts. It called the measure is an unacceptable extension of federal jurisdiction overseas, and said it would place additional burdens on the military.
Blackwater’s argument is that the company should be covered by the same "sovereign immunity" that protects the U.S. military from lawsuits because the downed flight was under the command and control of the U.S. military.
Last month, this argument was rejected by three federal judges, who cited the U.S. government's failure to take a position in defense of Blackwater as one of their reasons. In their opinion to allow the lawsuit to proceed, the judges ruled that "The apparent lack of interest from the United States... fortifies our conclusion that the case does not yet present a political question.”
Lawyers for many major contractors including DynCorp, Kellogg Brown and Root, Blackwater and others, say a dangerous precedent would be established if this and similar cases are allowed to go forward. Such a decision, they say, would open contractors to large money damages and greatly higher risk insurance costs that could adversely affect their ability to carry out the jobs the U.S. government has hired them to do.
As the Florida case made its way through the U.S. legal system, a new report from the Congressional Budget Office (CBO) contends that the cost of having military personnel provide security services in Iraq might be little different from the prices charged by private security contactors.
The report said that $6-$10 billion has been spent on security contactors thus far in 2008 and estimated that about 25,000-30,000 employees of security
firms were in Iraq as of early this year. It estimates that, if spending for contractors continues at about the current rate, $100 billion will have been paid to military contractors for operations in Iraq.
The report revealed that about 20 percent of funding for operations in Iraq has gone to contractors. Currently, it said, there are at least 190,000 contractors in Iraq and neighboring countries, a ratio of about one contractor per U.S. service member. It noted that the U.S. has relied more heavily on contractors in Iraq than in any other war to provide services ranging from food service to guarding diplomats.
The report also noted that the legal status of contractor personnel is a gray area of U.S. law, particularly for those who are armed. It said that military commanders have less direct authority over contractors because their contracts are managed by a government contracting officer rather than a military commander.
The CBO review was requested by Senator Kent Conrad, a North Dakota Democrat who is chairman of the Senate Budget Committee. In a statement, Conrad said the Bush administration's reliance on military contractors has set a dangerous precedent. The use of contractors "restricts accountability and oversight; opens the door to corruption and abuse; and, in some instances, may significantly increase the cost to American taxpayers," he said.
The report comes at a time when the actions of contractors in Iraq and Afghanistan are coming under increased scrutiny. Contractors, including Blackwater and KBR, have been investigated in connection with shooting deaths of Iraqis and the accidental electrocutions of U.S. troops. The Senate Democratic Policy Committee heard testimony a few weeks ago from a former DCAA contract overseer who was effectively fired because he refused to authorize $1 billion in unsubstantiated charges from KBR. The Government Accountability Office released a report that confirmed whistleblower complaints of DCAA supervisors issuing unsupported findings that were favorable to contractors. And last week, Government Executive reported that nearly a dozen former DCAA employees see DCAA as a very troubled agency that is more concerned with performance goals than actually overseeing contracts.
The death of a U.S. soldier, who was electrocuted in January while showering in Iraq, prompted a House committee oversight hearing last month into whether KBR Inc. has properly handled the electrical work at bases it maintains. The military has also said that five other deaths were due to improperly installed or maintained electrical devices, according to a congressional report.
Contractors’ activities have drawn sharp criticism from private non-governmental watchdog groups, such as OMB Watch. OMB stands for the Office of Management and Budget, which prepares and presents the president’s budget to congress.
Craig Jennings, OMB’s Federal Fiscal Policy Analyst, told us, “$100 billion is a very large amount of money -- in fact, Iraq's GDP was just over $100 billion in 2007. But what staggers my imagination is how sober adults would be willing to divert such vast sums of America's financial resources to the bank accounts of private firms whose dealings are opaque to taxpayers and, for the most part, held unaccountable.”
He added, “I think advocates of unaccountable privatization are beginning to reap what they have sown: defending privatization of war-making on such an enormous scale is becoming tenuous. It's hard to paint a picture of contractors providing taxpayers value when so many instances contractor misconduct have found their way into the public's consciousness.”
Jennings also called attention to the shortcomings of the military auditing process.
He told us, “This magnitude of expenditures on private contractors is especially striking in light of recent government and media reports of dysfunction in the Defense Contract Audit Agency (DCAA). The protection of the interests of American taxpayers is apparently suffering a number of impediments.”
As a new report forecasts that the 190,000 private contractors in Iraq and neighboring countries will cost U.S. taxpayers more than $100 billion by the end of 2008, an under-the-radar Florida court case suggests that President George W. Bush – a staunch contractor supporter -- is preparing to throw security firms such as Blackwater under the political bus.
In the Florida case, relatives of three American servicemen killed in the 2004 crash of an aircraft owned by Blackwater Aviation in Afghanistan are suing the company for damages, based in part of U.S. government reviews that concluded that errors committed by Blackwater staff were responsible for the deaths. This week, despite President George W. Bush's support for what he has called the critical roles played by overseas contractors, his Administration failed to meet a deadline for presenting the court with any defense of Blackwater.
The Administration’s silence has caused consternation among Blackwater and its supporters. Erik Prince, Blackwater's chairman, told TIME magazine, "After the President has said that, as Commander-in-Chief, he is ultimately responsible for contractors on the battlefield it is disappointing that his Administration has been unwilling to make that interest clear before the courts.”
Some observers have speculated that the Administration’s silence can be attributed to the controversial nature of the contractor issue and a reluctance to address it during a hotly contested presidential election year.
The Florida battle, which could eventually find its way to the U.S. Supreme Court, turns on the question of whether Blackwater and other overseas contractors are subject to U.S. law. That question arises because of a decree issued in 2005 by the then U.S. Iraq Administrator, L. Paul Bremer, granting contractors legal immunity. The Iraqi government claims that Blackwater and other contractors have been responsible for the deaths of Iraqi civilians and wants to make them subject to Iraqi law.
The U.S. has resisted this move, which is thought to be part of the ongoing stalemate in negotiations with Iraq over the future status of U.S. forces in that country.
The White House has also attacked a bill recently passed by the House of Representatives that would place combat-zone contractors under the jurisdiction of U.S. courts. It called the measure is an unacceptable extension of federal jurisdiction overseas, and said it would place additional burdens on the military.
Blackwater’s argument is that the company should be covered by the same "sovereign immunity" that protects the U.S. military from lawsuits because the downed flight was under the command and control of the U.S. military.
Last month, this argument was rejected by three federal judges, who cited the U.S. government's failure to take a position in defense of Blackwater as one of their reasons. In their opinion to allow the lawsuit to proceed, the judges ruled that "The apparent lack of interest from the United States... fortifies our conclusion that the case does not yet present a political question.”
Lawyers for many major contractors including DynCorp, Kellogg Brown and Root, Blackwater and others, say a dangerous precedent would be established if this and similar cases are allowed to go forward. Such a decision, they say, would open contractors to large money damages and greatly higher risk insurance costs that could adversely affect their ability to carry out the jobs the U.S. government has hired them to do.
As the Florida case made its way through the U.S. legal system, a new report from the Congressional Budget Office (CBO) contends that the cost of having military personnel provide security services in Iraq might be little different from the prices charged by private security contactors.
The report said that $6-$10 billion has been spent on security contactors thus far in 2008 and estimated that about 25,000-30,000 employees of security
firms were in Iraq as of early this year. It estimates that, if spending for contractors continues at about the current rate, $100 billion will have been paid to military contractors for operations in Iraq.
The report revealed that about 20 percent of funding for operations in Iraq has gone to contractors. Currently, it said, there are at least 190,000 contractors in Iraq and neighboring countries, a ratio of about one contractor per U.S. service member. It noted that the U.S. has relied more heavily on contractors in Iraq than in any other war to provide services ranging from food service to guarding diplomats.
The report also noted that the legal status of contractor personnel is a gray area of U.S. law, particularly for those who are armed. It said that military commanders have less direct authority over contractors because their contracts are managed by a government contracting officer rather than a military commander.
The CBO review was requested by Senator Kent Conrad, a North Dakota Democrat who is chairman of the Senate Budget Committee. In a statement, Conrad said the Bush administration's reliance on military contractors has set a dangerous precedent. The use of contractors "restricts accountability and oversight; opens the door to corruption and abuse; and, in some instances, may significantly increase the cost to American taxpayers," he said.
The report comes at a time when the actions of contractors in Iraq and Afghanistan are coming under increased scrutiny. Contractors, including Blackwater and KBR, have been investigated in connection with shooting deaths of Iraqis and the accidental electrocutions of U.S. troops. The Senate Democratic Policy Committee heard testimony a few weeks ago from a former DCAA contract overseer who was effectively fired because he refused to authorize $1 billion in unsubstantiated charges from KBR. The Government Accountability Office released a report that confirmed whistleblower complaints of DCAA supervisors issuing unsupported findings that were favorable to contractors. And last week, Government Executive reported that nearly a dozen former DCAA employees see DCAA as a very troubled agency that is more concerned with performance goals than actually overseeing contracts.
The death of a U.S. soldier, who was electrocuted in January while showering in Iraq, prompted a House committee oversight hearing last month into whether KBR Inc. has properly handled the electrical work at bases it maintains. The military has also said that five other deaths were due to improperly installed or maintained electrical devices, according to a congressional report.
Contractors’ activities have drawn sharp criticism from private non-governmental watchdog groups, such as OMB Watch. OMB stands for the Office of Management and Budget, which prepares and presents the president’s budget to congress.
Craig Jennings, OMB’s Federal Fiscal Policy Analyst, told us, “$100 billion is a very large amount of money -- in fact, Iraq's GDP was just over $100 billion in 2007. But what staggers my imagination is how sober adults would be willing to divert such vast sums of America's financial resources to the bank accounts of private firms whose dealings are opaque to taxpayers and, for the most part, held unaccountable.”
He added, “I think advocates of unaccountable privatization are beginning to reap what they have sown: defending privatization of war-making on such an enormous scale is becoming tenuous. It's hard to paint a picture of contractors providing taxpayers value when so many instances contractor misconduct have found their way into the public's consciousness.”
Jennings also called attention to the shortcomings of the military auditing process.
He told us, “This magnitude of expenditures on private contractors is especially striking in light of recent government and media reports of dysfunction in the Defense Contract Audit Agency (DCAA). The protection of the interests of American taxpayers is apparently suffering a number of impediments.”
Monday, August 11, 2008
BE VERY AFRAID. IT’S GOOD FOR BUSINESS.
By William Fisher
I never thought I’d find myself defending Karen Hughes, so this is a big deal.
Ms. Hughes, you will recall, is the Good Friend of Bush (GFOB) who was one of Dubya’s closest confidantes in Texas and later in the White House. After taking a sabbatical from playing Karl Rove in Drag, she returned to Washington to become Under Secretary of State for Public Diplomacy.
Now I am not exactly Ms. Hughes’ biggest fan. I remember writing at the time of her nomination to be America’s image-maker to the world that I couldn’t think of a less qualified person to take on this arguably impossible job. And over time she unfortunately proved me right.
But now, departed again from Washington, here she is being attacked by a guy with even less credibility.
That guy is Steve Emerson, the once-ubiquitous self-proclaimed anti-terrorist “expert,” who sees Islamic militant bomb throwers under every rock and describes Islam as a faith that “sanctions genocide, planned genocide, as part of its religious doctrine.”
In an article in my favorite hysterical neocon rag, NewsMax, Hughes is accused of funneling “millions of dollars in U.S. government grants to radical Islamist organizations, many of whose leaders have been convicted or indicted in terrorism cases in the United States.”
When I noticed the byline on this piece, I should have known it wouldn’t pass the smell test. It was written by one Kenneth R. Timmerman.
Timmerman, of course, is the author of one of the truly wonderful pieces of disinformation published by Insight Magazine of the right-of-Genghis-Khan Washington Times in 2002. In that gem, Timmerman confirmed Saddam Hussein’s possession of Weapons of Mass Destruction.
The source of his “intelligence”? None other than Ahmad Chalabi and the Iraqi National Congress. The headline read: “How Saddam Got Weapons of Mass Destruction: Saddam Hussein’s War Machine Is Being Built Systematically to Strike At the United States With New Nuclear, Biological and Chemical Weapons Designed to Kill Millions.”
Awesome scoop, Ken!
So in his latest riff, Timmerman reports on Emerson’s testimony to a Congressional committee.
Emerson told the House International Relations Committee: “When Ms. [Karen] Hughes was appointed as undersecretary of state for public diplomacy and public affairs, she set the tone to continue a disastrous policy of outreach with Islamist partners.” Many of the leaders of these “radical Islamist organizations” have been “convicted or indicted in terrorism cases in the United States.”
Well, just who are these “many”?
Emerson cites but one -- the Islamic Society of North America (ISNA), which he describes as “a Muslim Brotherhood-affiliated organization, [which] was an unindicted co-conspirator in last year’s terrorist financing trial against the Holy Land Foundation," Emerson told Congress. What he neglected to tell the lawmakers is that the Justice Department designated just about everyone except Adam’s housecat as an “unindicted co-conspirator” in that case – and that a jury exonerated the Foundation.
Emerson also charges that State Department grants went to the Muslim Public Affairs Council (MPAC), which he described as a group that has “publicly challenged the designation of Hezbollah and Hamas as terrorist organizations” (a canard often repeated by Islamophobics that has yet to be substantiated by any facts).
MPAC was but one in a long catalog of organizations Emerson accused of supporting terrorist causes. He said, “A number of groups that the State Department has funded or collaborated with have links to entities such as al-Qaida, Hamas and Hezbollah, all of which are designated as terrorist organizations by the United States government.” But he was a bit light on citing a single fact to support this claim. Like none.
He declared that the outreach policy championed by Hughes “legitimizes Islamism to the world and sends mixed messages to our allies, while sending a terrible message to moderate Muslims who are thoroughly disenfranchised by the funding.”
Emerson’s charges were not without predictable allies in Congress. Citing earlier warnings by Emerson and other “experts,” Republican Senators Tom Coburn of Oklahoma and Jon Kyl of Arizona wrote to Secretary of State Condoleezza Rice last month, demanding that she instruct the State Department to cancel all outstanding grants to “radical Islamist groups.”
Well, it might just be worth noting that many of the groups cited by Emerson as “radical” are the very same ones the FBI, CIA, NSA and other intelligence agencies have been courting since shortly after 9/11 in their efforts to recruit agents and language experts. And that some of them meet regularly with the FBI and Department of Homeland Security to provide insights into the attitudes of American Muslims.
To be sure, these organizations frequently disagree with U.S. government policies, particularly regarding the Middle East. They believe the U.S. has wasted precious years in the effort to resolve the Israeli-Palestinian dispute. They assert that the U.S. does little to apply pressure on Israel to rein in the building of new settlements in the West Bank. They think the invasion of Iraq was a colossal blunder. And they regularly complain about ethnic profiling and other official government discrimination against Americans of Arab descent and other American Muslims.
But so do big chunks of the American foreign policy community. Like those bomb-throwers at the Council on Foreign Relations!
Anti-Israel and anti-Semitic propaganda is daily fare throughout the Middle East. Much of it comes from the press controlled by the very authoritarian rulers the U.S. has been propping up for decades with billions in military and economic assistance. And much of the opposition to these autocratic regimes today is coming from the very organizations Steve Emerson tags as radical Islamists.
As for what Emerson calls our “disastrous policy of outreach” to Islamic partners, someone ought to remind him that outreach is at the very heart of America’s public diplomacy. The problem is not that we’re spending hundreds of millions on outreach. The problem is that, given George Bush’s Middle East policies, our outreach is not very effective at “winning hearts and minds.”
OK, forget hearts and minds. To be totally cynical, outreach and dialogue are probably our most effective means of obtaining intelligence.
But, to self-designated “terrorism experts” like Steve Emerson, keeping fear alive is Priority One. The good news is that we are no longer seeing Mr. Emerson’s talking head every time we turn our TVs on. And we aren’t seeing many of his op-eds in the responsible mainstream press anymore – except perhaps in the Wall Street Journal or the Washington Times.
Pity it’s taken the media so long to begin to question his value as an authentic source of reliable information. Should have happened after he became one of the first on-air pundits to say the bombing of the Federal Building in Oklahoma City had all the earmarks of Middle Eastern terrorism.
Makes you wonder how long it will take Congress to get it!
I never thought I’d find myself defending Karen Hughes, so this is a big deal.
Ms. Hughes, you will recall, is the Good Friend of Bush (GFOB) who was one of Dubya’s closest confidantes in Texas and later in the White House. After taking a sabbatical from playing Karl Rove in Drag, she returned to Washington to become Under Secretary of State for Public Diplomacy.
Now I am not exactly Ms. Hughes’ biggest fan. I remember writing at the time of her nomination to be America’s image-maker to the world that I couldn’t think of a less qualified person to take on this arguably impossible job. And over time she unfortunately proved me right.
But now, departed again from Washington, here she is being attacked by a guy with even less credibility.
That guy is Steve Emerson, the once-ubiquitous self-proclaimed anti-terrorist “expert,” who sees Islamic militant bomb throwers under every rock and describes Islam as a faith that “sanctions genocide, planned genocide, as part of its religious doctrine.”
In an article in my favorite hysterical neocon rag, NewsMax, Hughes is accused of funneling “millions of dollars in U.S. government grants to radical Islamist organizations, many of whose leaders have been convicted or indicted in terrorism cases in the United States.”
When I noticed the byline on this piece, I should have known it wouldn’t pass the smell test. It was written by one Kenneth R. Timmerman.
Timmerman, of course, is the author of one of the truly wonderful pieces of disinformation published by Insight Magazine of the right-of-Genghis-Khan Washington Times in 2002. In that gem, Timmerman confirmed Saddam Hussein’s possession of Weapons of Mass Destruction.
The source of his “intelligence”? None other than Ahmad Chalabi and the Iraqi National Congress. The headline read: “How Saddam Got Weapons of Mass Destruction: Saddam Hussein’s War Machine Is Being Built Systematically to Strike At the United States With New Nuclear, Biological and Chemical Weapons Designed to Kill Millions.”
Awesome scoop, Ken!
So in his latest riff, Timmerman reports on Emerson’s testimony to a Congressional committee.
Emerson told the House International Relations Committee: “When Ms. [Karen] Hughes was appointed as undersecretary of state for public diplomacy and public affairs, she set the tone to continue a disastrous policy of outreach with Islamist partners.” Many of the leaders of these “radical Islamist organizations” have been “convicted or indicted in terrorism cases in the United States.”
Well, just who are these “many”?
Emerson cites but one -- the Islamic Society of North America (ISNA), which he describes as “a Muslim Brotherhood-affiliated organization, [which] was an unindicted co-conspirator in last year’s terrorist financing trial against the Holy Land Foundation," Emerson told Congress. What he neglected to tell the lawmakers is that the Justice Department designated just about everyone except Adam’s housecat as an “unindicted co-conspirator” in that case – and that a jury exonerated the Foundation.
Emerson also charges that State Department grants went to the Muslim Public Affairs Council (MPAC), which he described as a group that has “publicly challenged the designation of Hezbollah and Hamas as terrorist organizations” (a canard often repeated by Islamophobics that has yet to be substantiated by any facts).
MPAC was but one in a long catalog of organizations Emerson accused of supporting terrorist causes. He said, “A number of groups that the State Department has funded or collaborated with have links to entities such as al-Qaida, Hamas and Hezbollah, all of which are designated as terrorist organizations by the United States government.” But he was a bit light on citing a single fact to support this claim. Like none.
He declared that the outreach policy championed by Hughes “legitimizes Islamism to the world and sends mixed messages to our allies, while sending a terrible message to moderate Muslims who are thoroughly disenfranchised by the funding.”
Emerson’s charges were not without predictable allies in Congress. Citing earlier warnings by Emerson and other “experts,” Republican Senators Tom Coburn of Oklahoma and Jon Kyl of Arizona wrote to Secretary of State Condoleezza Rice last month, demanding that she instruct the State Department to cancel all outstanding grants to “radical Islamist groups.”
Well, it might just be worth noting that many of the groups cited by Emerson as “radical” are the very same ones the FBI, CIA, NSA and other intelligence agencies have been courting since shortly after 9/11 in their efforts to recruit agents and language experts. And that some of them meet regularly with the FBI and Department of Homeland Security to provide insights into the attitudes of American Muslims.
To be sure, these organizations frequently disagree with U.S. government policies, particularly regarding the Middle East. They believe the U.S. has wasted precious years in the effort to resolve the Israeli-Palestinian dispute. They assert that the U.S. does little to apply pressure on Israel to rein in the building of new settlements in the West Bank. They think the invasion of Iraq was a colossal blunder. And they regularly complain about ethnic profiling and other official government discrimination against Americans of Arab descent and other American Muslims.
But so do big chunks of the American foreign policy community. Like those bomb-throwers at the Council on Foreign Relations!
Anti-Israel and anti-Semitic propaganda is daily fare throughout the Middle East. Much of it comes from the press controlled by the very authoritarian rulers the U.S. has been propping up for decades with billions in military and economic assistance. And much of the opposition to these autocratic regimes today is coming from the very organizations Steve Emerson tags as radical Islamists.
As for what Emerson calls our “disastrous policy of outreach” to Islamic partners, someone ought to remind him that outreach is at the very heart of America’s public diplomacy. The problem is not that we’re spending hundreds of millions on outreach. The problem is that, given George Bush’s Middle East policies, our outreach is not very effective at “winning hearts and minds.”
OK, forget hearts and minds. To be totally cynical, outreach and dialogue are probably our most effective means of obtaining intelligence.
But, to self-designated “terrorism experts” like Steve Emerson, keeping fear alive is Priority One. The good news is that we are no longer seeing Mr. Emerson’s talking head every time we turn our TVs on. And we aren’t seeing many of his op-eds in the responsible mainstream press anymore – except perhaps in the Wall Street Journal or the Washington Times.
Pity it’s taken the media so long to begin to question his value as an authentic source of reliable information. Should have happened after he became one of the first on-air pundits to say the bombing of the Federal Building in Oklahoma City had all the earmarks of Middle Eastern terrorism.
Makes you wonder how long it will take Congress to get it!
Subscribe to:
Posts (Atom)
