By William Fisher
U.S. President Barack Obama has ordered the Navy’s prison at Guantanamo Bay closed by next January, suspended Military Commission trials, and assigned Attorney General Eric Holder to conduct case-by-case reviews of the 241 prisoners still detained there to determine which ones should be prosecuted, released or sent to other countries. Yet the Obama Defense Department is still trying to recruit lawyers to defend its detentions.
In a ''help wanted'' ad circulated through the American Bar Association, the Pentagon (DOD) is offering $39,407-- $130,211 a year for lawyers who will help respond to habeas corpus petitions filed by detainees in federal courts.
Habeas Corpus petitions challenge the government’s right to imprison them. That right was granted to the detainees in a landmark Supreme Court decision in June 2008.
The job posting said, ''Attorneys with any litigation experience are encouraged to apply” for the three-year positions. It said the positions are “located in the Washington, D.C. area, with the potential for some travel to Guantánamo Bay.'' The ad says the DOD Office of the General Counsel is looking for applicants who can “start immediately.”
An increasing number of individual detainees' cases are now coming before different federal judges, who are weighing whether the Pentagon has enough evidence to hold them as war prisoners, even after President Obama declared that they would no longer be categorized as “enemy combatants.”
The original lawsuits challenged the legal basis for their detention under former President George W. Bush – a right they were afforded by a decision by the U.S. Supreme Court. Now Obama’s name has been substituted for Bush’s.
Pentagon lawyers working on these habeas cases have been mandated to find evidence to justify the detentions of the Guantánamo captives. But lawyers defending the detainees say that the additional Defense Department lawyers have failed to make any meaningful effort to locate or produce exculpatory evidence.
Most of the Guantanamo detainees have been held for up to seven years without charge. Nineteen of them have won their cases but are still being held because the U.S. has refused to accept them onto American soil, and has been unable to find other countries to accept them.
A Pentagon spokesman told The Miami Herald that there were no job openings. The newspaper reported that the Defense Department has been advertising the job offers since last summer, before Obama took office, as part of an active effort to amass résumés “to address any future hiring requirements, including to replace any departing attorneys.''
Former acting Pentagon General Counsel Daniel Dell'Orto notified the Court last August that the DOD was hiring 40 attorneys to help on the cases. At that time, it had approximately 30 lawyers working “exclusively on habeas corpus litigation.''
Over the years, the Justice and Defense departments have created entire units to defend the policy -- as well as the new special war court championed by the Bush administration to try suspected terrorists by military commissions.
Meanwhile, the war court has increased its numbers of lawyers, even as the Bush policy is under review by Obama Administration. There are now 63 military commissions prosecutors, an increase from 61 in December. These government lawyers would prosecute detainees should Military Commission trials resume following the Obama review.
Government lawyers have failed in their effort to stop the cases wholesale on grounds that they were hindering the war effort by jamming the docket at the U.S. District Court in Washington, D.C.
In another Guantanamo development, lawyers for Binyam Mohamed face the prospect of six-month jail sentences in America after writing a letter to President Obama detailing their client's allegations of torture by U.S. agents.
That prospect has been triggered by a complaint made by a unit known as the Privilege Review Team (PRT), which is composed of U.S. DOD officials who monitor and censor communications between Guantánamo prisoners and their lawyers. As a result of that complaint, Clive Stafford Smith, director of legal charity Reprieve, and his colleague Ahmed Ghappour, have been summoned to appear before a Washington court on May 11.
The PRT complaint accused Stafford Smith and Ghappour of "unprofessional conduct" and said that by releasing the redacted memo, Reprieve breached the rules that govern Guantánamo lawyers.
A number of lawyers representing Guantanamo detainees have previously accused the PRT of using its powers to suppress evidence of the abuse and mistreatment of detainees.
The background to this event is arguably reminiscent of something from a Kafka novel. Stafford Smith had written to the president after judges in the U.K. ruled against the release of U.S. evidence detailing Mohamed's alleged torture at Guantánamo. The letter asked the president to reconsider the U.S. position and urged him to release the evidence into the public domain. He attached a memo summarizing the case because his U.S. security clearance gives him access to the classified material. In order to comply with classification guidelines, the memo did not identify individual officers by name or specify locations of the abuse.
He and Ghappour submitted the memo to the Privilege Review Team for clearance. However, the PRT redacted (edited) the memo down to just the title, leaving the president unable to read it. Stafford Smith included the redacted copy of the memo in his letter to illustrate the extent to which it had been censored. He described it as a "bizarre reality".
He wrote, "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by U.S. personnel. This decision is being made by the very people who you command."
Stafford Smith described the PRT’s actions as intimidation, saying the complaint "doesn't even specify the rule supposedly breached".
Monday, April 13, 2009
ICE-Police Partnerships Lead to Racial Profiling
By William Fisher
Alleged abuses of a little-known section of U.S. immigration law is triggering charges of racial and ethnic profiling, diverting local law enforcement from their crime-fighting mission, and failing to determine how many of the thousands of people deported under the program were the violent felons the program was designed to pursue.
Known as 287(g), the 1996 regulation allows the Immigration and Customs Enforcement (ICE) agency, part of the massive Department of Homeland Security (DHS), to deputize local police to enforce federal immigration law.
Critics are charging that some law enforcement agencies have used the program to deport immigrants who have committed minor crimes, such as carrying an open container of alcohol. They say that at least four police agencies have referred minor traffic offenders for deportation.
ICE has described the 287(g) program as a public safety measure to target “criminal illegal aliens,” but, according to a recent report by Justice Strategies, a New York-based immigration reform advocacy group. “its largest impact has been on law-abiding immigrant communities. Rather than focusing on serious crime, police resources are spent targeting day-laborers, corn-vendors and people with broken tail-lights.”
Homeland Security Secretary Janet Napolitano has already ordered a review of the program.
The program has been promoted by immigration officials as an important tool in deporting serious criminals. It has also enjoyed the strong support of some local law enforcement agencies, including in Maricopa County, Arizona, where the sheriff, Joe Arpaio operates the largest program, with 160 deputies. Arpaio is currently under investigation by the Department of Justice (DOJ) and the Inspector General of DHS for discriminatory and unconstitutional searches and seizures.
Critics of the program say sheriff’s deputies there have arrested thousands of illegal immigrants, many of whom were stopped for traffic violations, in sweeps that have led to thousands of lawsuits accusing the department of racial profiling.
The views of Michele Waslin, Ph.D., Senior Policy Analyst at the Immigration Policy Center of the American Immigration Law Foundation, are probably representative of many other immigration reform advocates.
She told us, “We all agree that our immigration system is broken, but empowering local cops to enforce federal immigration laws is not the way to go about fixing it.”
She contended that agreements between ICE and local police departments “have been costly and have led to mistakes and profiling. Police officials themselves have said that 287(g) agreements destroy the trust between the police and the community they serve and protect, making it much more difficult for them to do their jobs.”
“Do we really want our police to be checking documents and chasing millions of busboys and maids?” she asked. “ A much better solution would be for Congress to pass comprehensive immigration reform and legalize the 12 million undocumented immigrants so that the police can focus their attention on protecting their communities from dangerous threats.”
A recent report by the Government Accountability Office (GAO), the investigative arm of Congress, concluded that immigration bureau officials had not closely supervised how their agreements with the local agencies had been carried out, had inconsistently described the program’s goals, and had failed to spell out what data should be tracked, collected and reported.
The absence of clear objectives is also a concern of Brittney Nystrom, Senior Legal Advisor to the National Immigration Forum, an immigration reform advocacy organization.
She told us, “It’s impossible to know how well this program is working without clear objectives being spelled out.”
“We are also concerned about allegations of racial and ethnic profiling, and diversion of legitimate local law enforcement resources to achieve unclear and questionable goals,” she said.
The GAO report analyzed 29 of the 67 local law enforcement agencies in the program. It found that they arrested 43,000 illegal immigrants last year, including 34,000 taken into custody by the immigration bureau.
Of the 34,000, the report said, about 41 percent were put in removal
proceedings, 44 percent waived their right to a hearing and were immediately deported, and 15 percent were released for reasons including humanitarian grounds, the “minor nature of their crime” and their having been sentenced to prison. The GAO was unable to determine how many of the arrested immigrants were suspected of committing serious crimes.
Use of the program has accelerated in recent years as the immigration debate
has intensified. It has grown to 67 agencies in 23 states with more than 950
deputized officers, from five law enforcement agencies in 2005. There is reportedly a waiting list of 42 agencies.
Justice Strategies concluded that 61 percent of jurisdictions that have entered into 287(g) agreements have crime rates that are lower than the national average. Census data show that 87 percent, however, are undergoing an increase in their Latino populations higher than the national average.
Their report said, “Residing in the U.S. without proper documentation is a civil immigration violation, but it is not a crime. Yet under 287(g), people are jailed when their civil immigration status is in question.”
“The statute requires that ICE officers ‘supervise and direct’ all local police partners, but in practice this does not happen. Poor training and lack of oversight means that local authorities are not equipped to deal with the complexities associated with civil immigration law,” the report said.
The report charged that local politicians are using 287(g) as an opportunity to raise their political profiles as tough on crime and restrictionist on immigration policy.
It cited a number of U.S. cities and counties where they say serious abuses have occurred. For example:
In Butler County, Ohio, ICE extended the powerful civil immigration search, arrest and detention authorities to the sheriff after he campaigned on an anti-immigrant platform.
In Berry Hill, Tennessee, a police officer arrested an immigrant driver in her last days of pregnancy, rather than issue her a routine traffic ticket. In jail, a 287(g) deputized officer issued a civil detainment order to keep her locked up without bond. She went into labor while shackled to a jail hospital bed.
In 2008, the Morris County Sheriff’s Office (New Jersey) issued an impact review of the ICE 287(g) program. It estimated that to have the capacity to house 60 287(g) civil detainees, the county would pay $1.3 million in personnel and facility start-up costs. “ICE would not reimburse the County for any start up costs such as those mentioned.”
And in Maricopa County (Phoenix), Arizona, ICE refuses to revoke the largest 287(g) agreement, with Sheriff Arpaio, “despite charges of racial profiling and national criticism of his posse’s street sweeps of day laborers.”
“Sheriff Arpaio promotes himself as the nation’s most prominent face of the 287(g) program, calling in the media to film the spectacle of thousands of detainees confined in his Tent City jail under the blazing desert sun,” the report said.
Thirty-five thousand people from all over the U.S. recently signed a petition calling on the departments of Justice and Homeland Security to investigate Arpaio. The petition, initiated by America's Voice, a Washington-based group for immigration reform, was delivered to the agencies by powerful members of Congress, including House Judiciary Committee Chairman John Conyers (D-Min.), Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), and Rep. Jerrold Nadler (D-NY).
Alleged abuses of a little-known section of U.S. immigration law is triggering charges of racial and ethnic profiling, diverting local law enforcement from their crime-fighting mission, and failing to determine how many of the thousands of people deported under the program were the violent felons the program was designed to pursue.
Known as 287(g), the 1996 regulation allows the Immigration and Customs Enforcement (ICE) agency, part of the massive Department of Homeland Security (DHS), to deputize local police to enforce federal immigration law.
Critics are charging that some law enforcement agencies have used the program to deport immigrants who have committed minor crimes, such as carrying an open container of alcohol. They say that at least four police agencies have referred minor traffic offenders for deportation.
ICE has described the 287(g) program as a public safety measure to target “criminal illegal aliens,” but, according to a recent report by Justice Strategies, a New York-based immigration reform advocacy group. “its largest impact has been on law-abiding immigrant communities. Rather than focusing on serious crime, police resources are spent targeting day-laborers, corn-vendors and people with broken tail-lights.”
Homeland Security Secretary Janet Napolitano has already ordered a review of the program.
The program has been promoted by immigration officials as an important tool in deporting serious criminals. It has also enjoyed the strong support of some local law enforcement agencies, including in Maricopa County, Arizona, where the sheriff, Joe Arpaio operates the largest program, with 160 deputies. Arpaio is currently under investigation by the Department of Justice (DOJ) and the Inspector General of DHS for discriminatory and unconstitutional searches and seizures.
Critics of the program say sheriff’s deputies there have arrested thousands of illegal immigrants, many of whom were stopped for traffic violations, in sweeps that have led to thousands of lawsuits accusing the department of racial profiling.
The views of Michele Waslin, Ph.D., Senior Policy Analyst at the Immigration Policy Center of the American Immigration Law Foundation, are probably representative of many other immigration reform advocates.
She told us, “We all agree that our immigration system is broken, but empowering local cops to enforce federal immigration laws is not the way to go about fixing it.”
She contended that agreements between ICE and local police departments “have been costly and have led to mistakes and profiling. Police officials themselves have said that 287(g) agreements destroy the trust between the police and the community they serve and protect, making it much more difficult for them to do their jobs.”
“Do we really want our police to be checking documents and chasing millions of busboys and maids?” she asked. “ A much better solution would be for Congress to pass comprehensive immigration reform and legalize the 12 million undocumented immigrants so that the police can focus their attention on protecting their communities from dangerous threats.”
A recent report by the Government Accountability Office (GAO), the investigative arm of Congress, concluded that immigration bureau officials had not closely supervised how their agreements with the local agencies had been carried out, had inconsistently described the program’s goals, and had failed to spell out what data should be tracked, collected and reported.
The absence of clear objectives is also a concern of Brittney Nystrom, Senior Legal Advisor to the National Immigration Forum, an immigration reform advocacy organization.
She told us, “It’s impossible to know how well this program is working without clear objectives being spelled out.”
“We are also concerned about allegations of racial and ethnic profiling, and diversion of legitimate local law enforcement resources to achieve unclear and questionable goals,” she said.
The GAO report analyzed 29 of the 67 local law enforcement agencies in the program. It found that they arrested 43,000 illegal immigrants last year, including 34,000 taken into custody by the immigration bureau.
Of the 34,000, the report said, about 41 percent were put in removal
proceedings, 44 percent waived their right to a hearing and were immediately deported, and 15 percent were released for reasons including humanitarian grounds, the “minor nature of their crime” and their having been sentenced to prison. The GAO was unable to determine how many of the arrested immigrants were suspected of committing serious crimes.
Use of the program has accelerated in recent years as the immigration debate
has intensified. It has grown to 67 agencies in 23 states with more than 950
deputized officers, from five law enforcement agencies in 2005. There is reportedly a waiting list of 42 agencies.
Justice Strategies concluded that 61 percent of jurisdictions that have entered into 287(g) agreements have crime rates that are lower than the national average. Census data show that 87 percent, however, are undergoing an increase in their Latino populations higher than the national average.
Their report said, “Residing in the U.S. without proper documentation is a civil immigration violation, but it is not a crime. Yet under 287(g), people are jailed when their civil immigration status is in question.”
“The statute requires that ICE officers ‘supervise and direct’ all local police partners, but in practice this does not happen. Poor training and lack of oversight means that local authorities are not equipped to deal with the complexities associated with civil immigration law,” the report said.
The report charged that local politicians are using 287(g) as an opportunity to raise their political profiles as tough on crime and restrictionist on immigration policy.
It cited a number of U.S. cities and counties where they say serious abuses have occurred. For example:
In Butler County, Ohio, ICE extended the powerful civil immigration search, arrest and detention authorities to the sheriff after he campaigned on an anti-immigrant platform.
In Berry Hill, Tennessee, a police officer arrested an immigrant driver in her last days of pregnancy, rather than issue her a routine traffic ticket. In jail, a 287(g) deputized officer issued a civil detainment order to keep her locked up without bond. She went into labor while shackled to a jail hospital bed.
In 2008, the Morris County Sheriff’s Office (New Jersey) issued an impact review of the ICE 287(g) program. It estimated that to have the capacity to house 60 287(g) civil detainees, the county would pay $1.3 million in personnel and facility start-up costs. “ICE would not reimburse the County for any start up costs such as those mentioned.”
And in Maricopa County (Phoenix), Arizona, ICE refuses to revoke the largest 287(g) agreement, with Sheriff Arpaio, “despite charges of racial profiling and national criticism of his posse’s street sweeps of day laborers.”
“Sheriff Arpaio promotes himself as the nation’s most prominent face of the 287(g) program, calling in the media to film the spectacle of thousands of detainees confined in his Tent City jail under the blazing desert sun,” the report said.
Thirty-five thousand people from all over the U.S. recently signed a petition calling on the departments of Justice and Homeland Security to investigate Arpaio. The petition, initiated by America's Voice, a Washington-based group for immigration reform, was delivered to the agencies by powerful members of Congress, including House Judiciary Committee Chairman John Conyers (D-Min.), Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), and Rep. Jerrold Nadler (D-NY).
Wednesday, April 08, 2009
Obama’s Big Gamble
By William Fisher
Do you remember how thrilled we were when we heard our new President say:
“My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”
In addition to being thankful to finally have a president who seemed thoughtful, and who spoke English in whole and understandable sentences, his words meant Bush’s Era of Secret Government was over
Gone was the bumbling Bush rhetoric that made us the butt of the world’s jokes. Gone was the swagger of ‘bring it on.’ Gone was the “you’re either with us or you’re against us” Crusader’s mantra.
It was, again, morning in America!
And the president gave us more than just words. He gave us proof that he was really serious. He ordered Guantanamo shuttered within a year. He closed the CIA’s secret black sites. He ordered a case-by-case review of every outstanding Guantanano case to determine what to do with each of the prisoners there.
He said, “The United States doesn’t torture.” And, unlike his predecessor, he sounded credible.
Regarding the Freedom of Information Act, he shifted the presumption of compliance from those seeking information to the government that had – and had frequently over-classified – that information. He gave his first foreign interview to an Arab television network. And he vowed to stop using the term “enemy combatant” – and moved the last of two such designees from a Navy brig to the civilian justice system for trial.
And he did almost all of that before the end of his first week in office.
Those were heady days. His supporters were jubilant.
But, you guessed it, there’s a BUT coming.
The but is that the part of Obama’s base that believes fervently in human rights, civil liberties, and the rule of Constitutional law, now finds itself disappointed, confused, bewildered.
The reason is that our new president’s lawyers have been traipsing into court, not to begin reasserting the primacy of the Constitution, not to start reestablishing the rule of law, but to argue the very same legal positions used by George W. Bush in his push for the Imperial Presidency.
Obama’s Justice Department has argued that non-Afghan prisoners captured outside Afghanistan and imprisoned at Bagram Air Force Base – some for years without charges -- have no Constitutional rights (the Court ruled they did).
DOJ lawyers went to court to argue that a lawsuit brought by five victims of “extraordinary rendition” should be thrown out because presenting the evidence in open court would jeopardize national security. The same “state secrets” gambit habitually invoked by the Bushies.
Then, attorneys for the Obama administration moved to dismiss a challenge to the National Security Agency's warrantless wiretapping program. They said, "The information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,"
That case, Jewel v. NSA, is not a lawsuit against AT&T. But the DOJ's court motion fully supports the company. "All of plaintiffs' claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the (Director of National Intelligence) again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security," the government argued. A decision in this case is pending.
Then Obama’s DOJ lawyers used the same “national security” gambit to try to win a dismissal of a case involving a Saudi charity, Al Haramain, accused of laundering money to terrorist causes. The charity’s principals – and their attorney – claimed they were victims of Bush’s warrantless wiretapping program. A decision is pending before the Ninth Circuit Court of Appeals.
Now, if these cases get appealed to higher courts, it could be years before any of this is resolved. So much for transparency.
Which leads me to the question: Why is this happening?
To find an answer, over the past few weeks I have been talking off-the-record with a number of politically savvy beltway insiders. I admit I don’t have Sy Hersh’s sources, but here’s what I’m being told:
It’s a Chinese menu of possibilities:
1. CIA Director Leon Panetta, new to intelligence work, has been sandbagged by the old-timers there, who contend that what our spooks did cannot be discussed in court because that would reveal “sources and methods.” This view has sparked a huge argument within the administration between the intelligence pros and people who actually believed Obama on transparency. Panetta has already said he’s not interested in prosecuting CIA foot soldiers, who thought they were acting under law. He has also said the CIA would continue its rendition program – with the bogus “diplomatic assurances” that members of the CIA’s frequent flier program would not be tortured or abused at their destinations (just like the bogus assurances Bush got).
2. Then there’s the notion that Obama is protecting foreign intelligence services, with which the U.S. has to work. We are keeping our secrets to spare them embarrassment.
3. Obama fears that the remaining three “torture memos” prepared by Bush’s Office of Legal Counsel will be far more incendiary than the three recently released because they will reportedly set out the specifics of horrific interrogation techniques, and that will totally blow the lid off.
4. Obama fears that disclosure of the CIA’s handiwork would be a huge distraction from his mainstream agenda. So he and his advisors have made a calculated political gamble: They will risk the wrath of the Democratic party’s civil liberties base because, realistically, where will these people go in November 2012? Sarah Palen? Right! (But that’s a big gamble; they might just stay at home.)
5. While the president has distanced himself from the idea of any kind of “Truth Commission, ” he is actually counting on pressure on and from Congress to “make him do it,” Which is reportedly what LBJ told Martin Luther King in 1964, when Johnson had spent much of his political capital and that kind of pressure was critical to passing the Voting Rights Act of 1965.
Perhaps none of this should surprise us. Obama has consistently been lukewarm to idea of a Congressional or any other investigation of Bush-era practices and policies. He has said repeatedly he’d rather be looking forward than backward (albeit he’s also said that “no one is above the law.”)
I am clueless about which of the above possibilities, if any, are valid. But what I do know is that Obama’s human rights record will be terminally tarnished if he keeps sweeping this illegal mess under the Oval Office carpet.
As American University law professor Jonathan Turley and many other Constitutional scholars keep pointing out, the president in fact has no choice. He took an oath to uphold the Constitution. That means if laws have been broken – and if we needed any further proof, the recently leaked Red Cross report should suffice -- he is obligated under the Constitution to investigate and hold the guilty accountable. We’re talking war crimes. It’s not a matter of choice.
We need to know what was done in our name – and, more importantly, who authorized it?
The logical place for all this to begin is the Justice Department. And this is what I think may ultimately happen. I remain hopeful that a special prosecutor will be appointed.
But we may have to wait quite a while for enough pressure to build to “make him do it.”
Do you remember how thrilled we were when we heard our new President say:
“My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”
In addition to being thankful to finally have a president who seemed thoughtful, and who spoke English in whole and understandable sentences, his words meant Bush’s Era of Secret Government was over
Gone was the bumbling Bush rhetoric that made us the butt of the world’s jokes. Gone was the swagger of ‘bring it on.’ Gone was the “you’re either with us or you’re against us” Crusader’s mantra.
It was, again, morning in America!
And the president gave us more than just words. He gave us proof that he was really serious. He ordered Guantanamo shuttered within a year. He closed the CIA’s secret black sites. He ordered a case-by-case review of every outstanding Guantanano case to determine what to do with each of the prisoners there.
He said, “The United States doesn’t torture.” And, unlike his predecessor, he sounded credible.
Regarding the Freedom of Information Act, he shifted the presumption of compliance from those seeking information to the government that had – and had frequently over-classified – that information. He gave his first foreign interview to an Arab television network. And he vowed to stop using the term “enemy combatant” – and moved the last of two such designees from a Navy brig to the civilian justice system for trial.
And he did almost all of that before the end of his first week in office.
Those were heady days. His supporters were jubilant.
But, you guessed it, there’s a BUT coming.
The but is that the part of Obama’s base that believes fervently in human rights, civil liberties, and the rule of Constitutional law, now finds itself disappointed, confused, bewildered.
The reason is that our new president’s lawyers have been traipsing into court, not to begin reasserting the primacy of the Constitution, not to start reestablishing the rule of law, but to argue the very same legal positions used by George W. Bush in his push for the Imperial Presidency.
Obama’s Justice Department has argued that non-Afghan prisoners captured outside Afghanistan and imprisoned at Bagram Air Force Base – some for years without charges -- have no Constitutional rights (the Court ruled they did).
DOJ lawyers went to court to argue that a lawsuit brought by five victims of “extraordinary rendition” should be thrown out because presenting the evidence in open court would jeopardize national security. The same “state secrets” gambit habitually invoked by the Bushies.
Then, attorneys for the Obama administration moved to dismiss a challenge to the National Security Agency's warrantless wiretapping program. They said, "The information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,"
That case, Jewel v. NSA, is not a lawsuit against AT&T. But the DOJ's court motion fully supports the company. "All of plaintiffs' claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the (Director of National Intelligence) again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security," the government argued. A decision in this case is pending.
Then Obama’s DOJ lawyers used the same “national security” gambit to try to win a dismissal of a case involving a Saudi charity, Al Haramain, accused of laundering money to terrorist causes. The charity’s principals – and their attorney – claimed they were victims of Bush’s warrantless wiretapping program. A decision is pending before the Ninth Circuit Court of Appeals.
Now, if these cases get appealed to higher courts, it could be years before any of this is resolved. So much for transparency.
Which leads me to the question: Why is this happening?
To find an answer, over the past few weeks I have been talking off-the-record with a number of politically savvy beltway insiders. I admit I don’t have Sy Hersh’s sources, but here’s what I’m being told:
It’s a Chinese menu of possibilities:
1. CIA Director Leon Panetta, new to intelligence work, has been sandbagged by the old-timers there, who contend that what our spooks did cannot be discussed in court because that would reveal “sources and methods.” This view has sparked a huge argument within the administration between the intelligence pros and people who actually believed Obama on transparency. Panetta has already said he’s not interested in prosecuting CIA foot soldiers, who thought they were acting under law. He has also said the CIA would continue its rendition program – with the bogus “diplomatic assurances” that members of the CIA’s frequent flier program would not be tortured or abused at their destinations (just like the bogus assurances Bush got).
2. Then there’s the notion that Obama is protecting foreign intelligence services, with which the U.S. has to work. We are keeping our secrets to spare them embarrassment.
3. Obama fears that the remaining three “torture memos” prepared by Bush’s Office of Legal Counsel will be far more incendiary than the three recently released because they will reportedly set out the specifics of horrific interrogation techniques, and that will totally blow the lid off.
4. Obama fears that disclosure of the CIA’s handiwork would be a huge distraction from his mainstream agenda. So he and his advisors have made a calculated political gamble: They will risk the wrath of the Democratic party’s civil liberties base because, realistically, where will these people go in November 2012? Sarah Palen? Right! (But that’s a big gamble; they might just stay at home.)
5. While the president has distanced himself from the idea of any kind of “Truth Commission, ” he is actually counting on pressure on and from Congress to “make him do it,” Which is reportedly what LBJ told Martin Luther King in 1964, when Johnson had spent much of his political capital and that kind of pressure was critical to passing the Voting Rights Act of 1965.
Perhaps none of this should surprise us. Obama has consistently been lukewarm to idea of a Congressional or any other investigation of Bush-era practices and policies. He has said repeatedly he’d rather be looking forward than backward (albeit he’s also said that “no one is above the law.”)
I am clueless about which of the above possibilities, if any, are valid. But what I do know is that Obama’s human rights record will be terminally tarnished if he keeps sweeping this illegal mess under the Oval Office carpet.
As American University law professor Jonathan Turley and many other Constitutional scholars keep pointing out, the president in fact has no choice. He took an oath to uphold the Constitution. That means if laws have been broken – and if we needed any further proof, the recently leaked Red Cross report should suffice -- he is obligated under the Constitution to investigate and hold the guilty accountable. We’re talking war crimes. It’s not a matter of choice.
We need to know what was done in our name – and, more importantly, who authorized it?
The logical place for all this to begin is the Justice Department. And this is what I think may ultimately happen. I remain hopeful that a special prosecutor will be appointed.
But we may have to wait quite a while for enough pressure to build to “make him do it.”
Tuesday, April 07, 2009
Why Is Spain Doing America’s Work?
By William Fisher
Human rights organizations and legal scholars are applauding the efforts of Spanish lawyers in seeking the indictment of six former officials of the administration of President George W. Bush in connection with the torture of detainees at the U.S. military's Guantanamo Bay prison.
Spanish prosecutors may decide this week whether to proceed with an investigation. The prosecutors were asked to review the case by Baltasar Garzon, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.
The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.
Garzon asked for the review following a complaint filed by Spanish human rights lawyers, who could pursue the case in court even if prosecutors decide not to take it further. This occurred in the Pinochet case.
The U.S. officials involved in the investigation include former U.S. Attorney
General Alberto Gonzales; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions, Douglas Feith, the former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel and now a Federal judge; and David Addington, chief of staff and legal adviser to former Vice President Dick Cheney.
The investigation would likely focus on whether these officials violated international law by providing a legal justification for the torture. It was triggered by a complaint filed by the Association for the Dignity of Inmates, a Spanish legal rights organization.
The six are said to have “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention center at Guantánamo.”
A spokesman for the association, attorney Gonzalo Boye, said the six Americans had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
The views of Michael Ratner, president of the Center for Constitutional Rights – which has played a major role in mobilizing lawyers to defend Guantanamo detainees, probably represent the consensus among U.S. human rights advocates. He said, “The importance of this investigation can not be understated. Contrary to statements by some, the Spanish investigations are not ‘symbolic.’ Just ask Augusto Pinochet, who was stranded under house arrest in England and who ultimately faced criminal charges in Chile because of the pressure of the Spanish courts.”
He added, “If and when arrest warrants are issued, 24 countries in Europe are obligated to enforce them. The world is getting smaller for the torture conspirators.”
Brian J. Foley, Visiting Associate Professor of Law at Boston University, told us, “I hope Spain goes ahead with a full and fair investigation. These are serious allegations, and there needs to be a forum to air them. U.S. officials seem unwilling to look into the alleged war crimes, which is unfortunate and further diminishes any remaining U.S. moral authority. I hope the Spanish investigation is open and transparent, revealing the truth for the whole world to see -- including, perhaps especially, American citizens. We need to face what has been done in our name.”
And Marjorie Cohn, President of the National Lawyers Guild, told us, “The only reason Spain is considering the prosecution of Americans for torture is because the United States is refusing to do so. Eric Holder must follow U.S. law and initiate criminal investigations of Bush officials who committed torture and other war crimes. Political considerations should not control our obligation under the Torture Convention to prosecute or extradite war criminals."
A similar view was expressed by Ben Wizner, attorney in the National Security Project of the American Civil Liberties Union (ACLU). He told us, “The idea of Spain investigating America’s treatment of detainees is an embarrassment to us. Once we were the world’s leading champions, not only of human rights, but of accountability. We shouldn’t be depending on other countries to clean up our mess.”
“If the Obama Administration did what the law required – appoint a special prosecutor – we would see fewer of our allies feeling they have to do our work,” he added.
Spain's law allows it to claim jurisdiction in the case because five Spanish
citizens or residents who were prisoners at Guantanamo Bay say they were
tortured there.
The U.S. detention camp in Cuba was set up to hold foreigners captured after U.S.-led forces invaded Afghanistan to root out al Qaeda and its Taliban protectors in response to the attacks of September 11, 2001 against the United States. U.S. officials held that Guantanamo was beyond the reach of U.S. law, thus giving detainees no rights. But three landmark rebukes by the U.S. Supreme Court have destroyed that defense by ruling that prisoners have a right to challenge their detentions in U.S. civilian courts.
In one of his first acts in office, U.S. President Barack Obama set a one-year
deadline for shutting the prison where about 245 people are still detained and which has been widely viewed by the international community as a stain on the U.S. human rights record.
Under Spanish law, prosecutors recommend whether to proceed with cases and determine whether any trial would come under the jurisdiction of the High Court.
While there is no set deadline for a decision, a recommendation could come
this week, according to court officials.
Human rights organizations and legal scholars are applauding the efforts of Spanish lawyers in seeking the indictment of six former officials of the administration of President George W. Bush in connection with the torture of detainees at the U.S. military's Guantanamo Bay prison.
Spanish prosecutors may decide this week whether to proceed with an investigation. The prosecutors were asked to review the case by Baltasar Garzon, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet in 1998.
The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.
Garzon asked for the review following a complaint filed by Spanish human rights lawyers, who could pursue the case in court even if prosecutors decide not to take it further. This occurred in the Pinochet case.
The U.S. officials involved in the investigation include former U.S. Attorney
General Alberto Gonzales; John Yoo, the former Justice Department lawyer who wrote secret legal opinions saying President George W. Bush had the authority to circumvent the Geneva Conventions, Douglas Feith, the former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel and now a Federal judge; and David Addington, chief of staff and legal adviser to former Vice President Dick Cheney.
The investigation would likely focus on whether these officials violated international law by providing a legal justification for the torture. It was triggered by a complaint filed by the Association for the Dignity of Inmates, a Spanish legal rights organization.
The six are said to have “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention center at Guantánamo.”
A spokesman for the association, attorney Gonzalo Boye, said the six Americans had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.
The views of Michael Ratner, president of the Center for Constitutional Rights – which has played a major role in mobilizing lawyers to defend Guantanamo detainees, probably represent the consensus among U.S. human rights advocates. He said, “The importance of this investigation can not be understated. Contrary to statements by some, the Spanish investigations are not ‘symbolic.’ Just ask Augusto Pinochet, who was stranded under house arrest in England and who ultimately faced criminal charges in Chile because of the pressure of the Spanish courts.”
He added, “If and when arrest warrants are issued, 24 countries in Europe are obligated to enforce them. The world is getting smaller for the torture conspirators.”
Brian J. Foley, Visiting Associate Professor of Law at Boston University, told us, “I hope Spain goes ahead with a full and fair investigation. These are serious allegations, and there needs to be a forum to air them. U.S. officials seem unwilling to look into the alleged war crimes, which is unfortunate and further diminishes any remaining U.S. moral authority. I hope the Spanish investigation is open and transparent, revealing the truth for the whole world to see -- including, perhaps especially, American citizens. We need to face what has been done in our name.”
And Marjorie Cohn, President of the National Lawyers Guild, told us, “The only reason Spain is considering the prosecution of Americans for torture is because the United States is refusing to do so. Eric Holder must follow U.S. law and initiate criminal investigations of Bush officials who committed torture and other war crimes. Political considerations should not control our obligation under the Torture Convention to prosecute or extradite war criminals."
A similar view was expressed by Ben Wizner, attorney in the National Security Project of the American Civil Liberties Union (ACLU). He told us, “The idea of Spain investigating America’s treatment of detainees is an embarrassment to us. Once we were the world’s leading champions, not only of human rights, but of accountability. We shouldn’t be depending on other countries to clean up our mess.”
“If the Obama Administration did what the law required – appoint a special prosecutor – we would see fewer of our allies feeling they have to do our work,” he added.
Spain's law allows it to claim jurisdiction in the case because five Spanish
citizens or residents who were prisoners at Guantanamo Bay say they were
tortured there.
The U.S. detention camp in Cuba was set up to hold foreigners captured after U.S.-led forces invaded Afghanistan to root out al Qaeda and its Taliban protectors in response to the attacks of September 11, 2001 against the United States. U.S. officials held that Guantanamo was beyond the reach of U.S. law, thus giving detainees no rights. But three landmark rebukes by the U.S. Supreme Court have destroyed that defense by ruling that prisoners have a right to challenge their detentions in U.S. civilian courts.
In one of his first acts in office, U.S. President Barack Obama set a one-year
deadline for shutting the prison where about 245 people are still detained and which has been widely viewed by the international community as a stain on the U.S. human rights record.
Under Spanish law, prosecutors recommend whether to proceed with cases and determine whether any trial would come under the jurisdiction of the High Court.
While there is no set deadline for a decision, a recommendation could come
this week, according to court officials.
Whatever Happened to “Do No Harm”?
By William Fisher
Human rights advocates are expressing alarm about recent disclosures that medical professionals assisted the Central Intelligence Agency in harsh interrogations of prisoners at C.I.A. secret prisons overseas and at the Guantanamo Bay detention facility, and that judges have ignored the mental health problems of government witnesses in terror-related trials.
A secret leaked report by the International Committee of the Red Cross concluded that medical professionals working for the C.I.A. were actively involved in the abusive interrogation of terrorist suspects. The report labeled their participation in abusive interrogations that included waterboarding “a gross breach of medical ethics.”
And, in a virtually unreported ruling last week, Federal Judge Emmet Sullivan found that the Justice Department improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases. The judge said it was clear that the witness, a fellow GITMO detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts.
The witness provided information in the government's case for continuing to detain Aymen Saeed Batarfi, a Yemeni doctor held at the U.S. Naval Base at Guantanamo Bay, Cuba, since 2001. Judge Sullivan excoriated the government for failing to turn over the witnesses’ medical records and said his testimony in other cases could also be challenged as unreliable. He ordered department lawyers to explain why he shouldn't cite them for contempt of court.
In a surprise development, it was widely reported late last month that Batarfi was the second captive to be cleared for release through the new review procedures put in place by U.S. President Barack Obama. The deal struck with government lawyers allows Batarfi to restart his lawsuit if he is not delivered to a country acceptable to him within 30 days. The agrement still must be reviewed by a judge.
The Red Cross – the only international agency guaranteed access to detainees – concluded in late 2006 that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.
The Red Cross report was based on statements from 14 prisoners who belonged to Al Qaeda and were moved to Guantánamo Bay, Cuba, in late 2006.
Facilitating practices that the Red Cross described as torture was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill-treatment.”
Frank Donaghue, Chief Executive Officer of Physicians for Human Rights (PHR), a non-profit medical advocacy group, told us, “Health professionals violated ethical duties by participating in the torture and abuse of detainees in U.S. custody. PHR has long demanded a full investigation into the role health professionals played in detainee treatment. PHR again calls upon health professional associations to support a non-partisan commission of inquiry.”
“It is time for the American Medical Association, the American Psychological Association, and others to demand a nonpartisan commission to investigate these crimes,” he said. “The associations must sanction any of their membership found to have violated their professional ethics.”
“The Bush Administration weaponized medicine by using health professionals to break the bodies and minds of detainees,” stated John Bradshaw, PHR’s Washington Director. “Congress must act to restore medical ethics by finally authorizing a non-partisan commission to probe these crimes.”
And Dr. Steven H. Miles, a physician at the Center for Bioethics of the University of Minnesota, said that in recent decades, torture had almost always involved medical professionals, and that to deter future misconduct, the medical role in the C.I.A. program should be fully disclosed.
The American Medical Association, the American Psychological Association, and other professional organizations, have condemned participation by their members in detainee interrogations.
The Red Cross report was obtained by Mark Danner, a journalist who has written extensively about torture, and published in The New York Review of Books.
The report said, “At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”
Khalid Shaikh Mohammed, the self-described chief planner of the Sept. 11 attacks, reportedly told investigators that when he was waterboarded, his pulse and oxygen level were monitored, and that a medical attendant stopped the procedure on several occasions.
Another prisoner, Walid bin Attash, who had previously had a leg amputated, said that when he was forced for days to stand with his arms shackled above his head, a health worker periodically measured the swelling in his intact leg and eventually ordered that he be allowed to sit.
The report does not indicate whether the medical personnel at the C.I.A. sites were physicians, psychologists, physicians’ assistants or former military paramedics.
Shortly after taking office in January, President Barack Obama ordered the closing of the Guantanamo Bay prison and the C.I.A. secret detention sites. He directed that the Red Cross be promptly informed of every person detained by the C.I.A. or any other agency.
Regarding the Batarfi case, Dr. Jeffrey Kaye, a San Francisco-based psychologist, told us that a judge can bar testimony on competency grounds, if there is "sufficient evidence showing a person's mental incapacity will render his or her testimony irrelevant, misleading, or incredible"; or is problematic due to "'counter-probative mental or psychological conditions or chemical influence.'"
In the Batafri case, Kaye added, “The main issue is the withholding of relevant or probative evidence for the court to assess the credibility of the witness. Whether that witness would be held credible by the court is really a separate issue.”
“The issue in assessing a potential witness boils down to whether or not they are seriously psychotic, or have some major disability that prevents them from processing information, or a severe personality disorder that would bear on their ability to be truthful.”
Kaye said, “It's easy to confirm a witness as competent under these criteria, but not necessarily credible or truthful.”
Commonly, he added, "The kinds of conditions that might be relevant to impeaching a witness includes 'psychoses, most or all neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality or antisocial personality disorder.”
In its 40-page report, the Red Cross condemned the C.I.A. detention program not only for using torture and other cruel treatment, but also for holding prisoners without notice to governments or families.
The report also details the Bush administration’s lack of cooperation for several years with the Red Cross’s inquiries and investigations of American detention programs. Repeated inquiries and reports from the organization beginning in 2002 received no response from American officials, the report said.
The new C.I.A. Director, Leon Panetta, has stated that “No one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.”
The C.I.A.’s interrogation methods were declared legal by the Justice Department under President George W. Bush. The recently released memoranda asserting their legality have been attacked by many legal scholars and human rights advocates.
Human rights advocates are expressing alarm about recent disclosures that medical professionals assisted the Central Intelligence Agency in harsh interrogations of prisoners at C.I.A. secret prisons overseas and at the Guantanamo Bay detention facility, and that judges have ignored the mental health problems of government witnesses in terror-related trials.
A secret leaked report by the International Committee of the Red Cross concluded that medical professionals working for the C.I.A. were actively involved in the abusive interrogation of terrorist suspects. The report labeled their participation in abusive interrogations that included waterboarding “a gross breach of medical ethics.”
And, in a virtually unreported ruling last week, Federal Judge Emmet Sullivan found that the Justice Department improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases. The judge said it was clear that the witness, a fellow GITMO detainee, was being treated weekly for a serious psychological problem and was questioned about whether he had any suicidal thoughts.
The witness provided information in the government's case for continuing to detain Aymen Saeed Batarfi, a Yemeni doctor held at the U.S. Naval Base at Guantanamo Bay, Cuba, since 2001. Judge Sullivan excoriated the government for failing to turn over the witnesses’ medical records and said his testimony in other cases could also be challenged as unreliable. He ordered department lawyers to explain why he shouldn't cite them for contempt of court.
In a surprise development, it was widely reported late last month that Batarfi was the second captive to be cleared for release through the new review procedures put in place by U.S. President Barack Obama. The deal struck with government lawyers allows Batarfi to restart his lawsuit if he is not delivered to a country acceptable to him within 30 days. The agrement still must be reviewed by a judge.
The Red Cross – the only international agency guaranteed access to detainees – concluded in late 2006 that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.
The Red Cross report was based on statements from 14 prisoners who belonged to Al Qaeda and were moved to Guantánamo Bay, Cuba, in late 2006.
Facilitating practices that the Red Cross described as torture was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill-treatment.”
Frank Donaghue, Chief Executive Officer of Physicians for Human Rights (PHR), a non-profit medical advocacy group, told us, “Health professionals violated ethical duties by participating in the torture and abuse of detainees in U.S. custody. PHR has long demanded a full investigation into the role health professionals played in detainee treatment. PHR again calls upon health professional associations to support a non-partisan commission of inquiry.”
“It is time for the American Medical Association, the American Psychological Association, and others to demand a nonpartisan commission to investigate these crimes,” he said. “The associations must sanction any of their membership found to have violated their professional ethics.”
“The Bush Administration weaponized medicine by using health professionals to break the bodies and minds of detainees,” stated John Bradshaw, PHR’s Washington Director. “Congress must act to restore medical ethics by finally authorizing a non-partisan commission to probe these crimes.”
And Dr. Steven H. Miles, a physician at the Center for Bioethics of the University of Minnesota, said that in recent decades, torture had almost always involved medical professionals, and that to deter future misconduct, the medical role in the C.I.A. program should be fully disclosed.
The American Medical Association, the American Psychological Association, and other professional organizations, have condemned participation by their members in detainee interrogations.
The Red Cross report was obtained by Mark Danner, a journalist who has written extensively about torture, and published in The New York Review of Books.
The report said, “At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”
Khalid Shaikh Mohammed, the self-described chief planner of the Sept. 11 attacks, reportedly told investigators that when he was waterboarded, his pulse and oxygen level were monitored, and that a medical attendant stopped the procedure on several occasions.
Another prisoner, Walid bin Attash, who had previously had a leg amputated, said that when he was forced for days to stand with his arms shackled above his head, a health worker periodically measured the swelling in his intact leg and eventually ordered that he be allowed to sit.
The report does not indicate whether the medical personnel at the C.I.A. sites were physicians, psychologists, physicians’ assistants or former military paramedics.
Shortly after taking office in January, President Barack Obama ordered the closing of the Guantanamo Bay prison and the C.I.A. secret detention sites. He directed that the Red Cross be promptly informed of every person detained by the C.I.A. or any other agency.
Regarding the Batarfi case, Dr. Jeffrey Kaye, a San Francisco-based psychologist, told us that a judge can bar testimony on competency grounds, if there is "sufficient evidence showing a person's mental incapacity will render his or her testimony irrelevant, misleading, or incredible"; or is problematic due to "'counter-probative mental or psychological conditions or chemical influence.'"
In the Batafri case, Kaye added, “The main issue is the withholding of relevant or probative evidence for the court to assess the credibility of the witness. Whether that witness would be held credible by the court is really a separate issue.”
“The issue in assessing a potential witness boils down to whether or not they are seriously psychotic, or have some major disability that prevents them from processing information, or a severe personality disorder that would bear on their ability to be truthful.”
Kaye said, “It's easy to confirm a witness as competent under these criteria, but not necessarily credible or truthful.”
Commonly, he added, "The kinds of conditions that might be relevant to impeaching a witness includes 'psychoses, most or all neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality or antisocial personality disorder.”
In its 40-page report, the Red Cross condemned the C.I.A. detention program not only for using torture and other cruel treatment, but also for holding prisoners without notice to governments or families.
The report also details the Bush administration’s lack of cooperation for several years with the Red Cross’s inquiries and investigations of American detention programs. Repeated inquiries and reports from the organization beginning in 2002 received no response from American officials, the report said.
The new C.I.A. Director, Leon Panetta, has stated that “No one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.”
The C.I.A.’s interrogation methods were declared legal by the Justice Department under President George W. Bush. The recently released memoranda asserting their legality have been attacked by many legal scholars and human rights advocates.
Friday, April 03, 2009
Surprise! In Court, Obama Channels W.
By William Fisher
In what could become an historic decision, a Federal judge has ruled that non-Afghan citizens rendered by the U.S. to Bagram prison in Afghanistan
have a constitutional right to challenge their detention in American civilian courts.
The decision by Federal Judge John Bates was a stunning rejection of unlimited power for the executive branch of government espoused by former President George W. Bush and his successor, President Barack Obama.
In a case involving four prisoners at the Bagram Air Force Base, Judge Bates ruled that the cases of three of the detainees are “virtually identical” to prisoners at the Navy base at Guantánamo Bay, Cuba. Bates said that the three enjoy the same legal rights granted by Supreme Court last year.
The three detainees claim they were captured outside Afghanistan and have been imprisoned for years without trials. They asked the court to grant them their right to challenge their detention and have a judge to review the evidence against them. They seek their release under the ancient right of “habeas corpus.”
The Supreme Court ruled last year that prisoners at Guantánamo have a constitutional right to habeas corpus.
That right, Bates wrote, was “forged to guard against” executive abuses such as the “arbitrary exercise of the government’s power to detain. Bates was appointed by former President George W. Bush.
The judge did not rule that the fourth prisoner — an Afghan citizen who was captured outside Afghanistan — had a right to habeas corpus, instead ordering additional briefings on that case. Noting that such a ruling could lead to friction with the Afghan government, he also wrote that whether any particular overseas detainee has habeas corpus rights would depend on a case-by-case analysis. Criteria, he said, would include a number of factors, including citizenship, location of capture, length of detention, and the degree to which the U.S. military has total control over its prisons.
There are approximately 600 detainees at Bagram, of most of who are reportedly Afghans. But, despite a court order, the U.S. has not released details of who is held there.
Human rights advocates generally applauded the Bates decision.
Barbara Olshansky, Litigation and Advocacy Director of the International Justice Network (IJN), the not-for-profit legal advocacy group that originally brought the case to court, said she was “very gratified to see the judiciary step up to the plate again and continue to act in their critical role as a check on executive power. Judge Bates' opinion stands as a historic marker for the principle that wherever we act as a government around the world, we must be held accountable for our actions."
Georgetown University law professor David Cole, one of the nation’s foremost constitutional lawyers, told us that the Bates decision “rests on the sound principle that the executive should not be permitted to evade judicial scrutiny by shipping its prisoners to Bagram rather than Guantanamo, and brings us closer to the rule of law.”
A similar view was expressed by Sahr MuhammedAlly of Human Rights First, who has spent substantial time in Afghanistan. He told us, "A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to conform all its detention practices to the requirements of human rights and humanitarian law. "
"Bagram must not be allowed to remain a law-free zone," he added.
And Jonathan Hafetz, an attorney with the American Civil Liberties Union National Security Project, called the Bates decision “yet another rebuke to the government's claim that it is free to establish law-free zones.”
He told us, “As the district court rightly concluded, the United States cannot escape the core protections or restraints of the Constitution by imprisoning people at Bagram rather than Guantánamo. Only a complete restoration of the rule of law at all U.S.-run prisons can achieve a return to justice and American values."
Hafetz was also critical of the Obama Administration. He told us, “The new administration is adhering to the old administration's approach by claiming it can avoid habeas corpus review and thus a check on its detention power.”
He said, “In many ways, Bagram has become the new Guantanamo, only worse because the process the detainees receive there is inferior, the treatment worse, and the public scrutiny even more superficial. The new administration also seems to be following the old administration's implausibly narrow reading of the Supreme Court's most recent decision.”
It is unclear whether the Obama Department of Justice (DOJ) will appeal Judge Bates ruling. A DOJ spokesman said the decision was still being reviewed.
IJN is the only organization litigating the cases of detainees held in U.S. custody in Afghanistan. It originally brought the cases in October 2006, on behalf of the four foreign nationals captured outside Afghanistan and brought to Bagram where they have been held without charge for more than six years.
The position that federal courts have no jurisdiction to hear lawsuits filed on behalf of foreign detainees in Afghanistan was first argued by the Bush
administration. During the Obama administration’s second month in office it told Judge Bates that it held the same view, a position that surprised and confused many human rights advocates who had supported Obama’s candidacy.
The Obama Administration has also followed the Bush positions in a number of other recent cases involving the “state secrets” doctrine, which argues that some cases cannot be heard in federal courts because the evidence would compromise national security.
In the aftermath of the Bates decision, human rights advocates are pondering how the ruling will impact the Obama administration’s efforts to formulate a policy about terrorism detainees.
Some critics of Obama administration detention policy have begun calling Bagram “Obama’s GITMO,” charging that the new president is shipping detainees to the Afghan prison to evade the Supreme Court’s ruling giving habeas corpus rights to prisoners at Guantanamo.
On his first day in office, Obama ordered the prison in Guantánamo Bay closed within a year and began a case-by-case review of the evidence against each of the roughly 240 detainees still being held there. He also ordered the closing of the “black site” secret prisons operated by the U.S. Central Intelligence Agency.
One of the seemingly intractable problems faced by the Obama administration is where to send Guantanamo detainees who are freed. Among these detainees is a group of 17 Chinese Muslims – known as Uighurs – who the U.S. says can be freed because they do not represent a threat. A federal judge ordered them released into the U.S. but that decision was overturned by the Justice Department’s appeal.
The U.S. has contended that they may be subjected to torture and persecution if they are returned to China, but argued that federal courts have no authority to order them released in the U.S. because that is a matter of immigration, not criminal, law.
Few countries have been open to accepting freed U.S. detainees – for reasons based on their own security and also, in the case of the Uigurs, out of fear of retaliation by China.
In the aftermath of the Bates decision – if it survives an appeal by the government -- the Obama administration may also have to add to its problems the question of where to send prisoners who are freed from Bagram.
In what could become an historic decision, a Federal judge has ruled that non-Afghan citizens rendered by the U.S. to Bagram prison in Afghanistan
have a constitutional right to challenge their detention in American civilian courts.
The decision by Federal Judge John Bates was a stunning rejection of unlimited power for the executive branch of government espoused by former President George W. Bush and his successor, President Barack Obama.
In a case involving four prisoners at the Bagram Air Force Base, Judge Bates ruled that the cases of three of the detainees are “virtually identical” to prisoners at the Navy base at Guantánamo Bay, Cuba. Bates said that the three enjoy the same legal rights granted by Supreme Court last year.
The three detainees claim they were captured outside Afghanistan and have been imprisoned for years without trials. They asked the court to grant them their right to challenge their detention and have a judge to review the evidence against them. They seek their release under the ancient right of “habeas corpus.”
The Supreme Court ruled last year that prisoners at Guantánamo have a constitutional right to habeas corpus.
That right, Bates wrote, was “forged to guard against” executive abuses such as the “arbitrary exercise of the government’s power to detain. Bates was appointed by former President George W. Bush.
The judge did not rule that the fourth prisoner — an Afghan citizen who was captured outside Afghanistan — had a right to habeas corpus, instead ordering additional briefings on that case. Noting that such a ruling could lead to friction with the Afghan government, he also wrote that whether any particular overseas detainee has habeas corpus rights would depend on a case-by-case analysis. Criteria, he said, would include a number of factors, including citizenship, location of capture, length of detention, and the degree to which the U.S. military has total control over its prisons.
There are approximately 600 detainees at Bagram, of most of who are reportedly Afghans. But, despite a court order, the U.S. has not released details of who is held there.
Human rights advocates generally applauded the Bates decision.
Barbara Olshansky, Litigation and Advocacy Director of the International Justice Network (IJN), the not-for-profit legal advocacy group that originally brought the case to court, said she was “very gratified to see the judiciary step up to the plate again and continue to act in their critical role as a check on executive power. Judge Bates' opinion stands as a historic marker for the principle that wherever we act as a government around the world, we must be held accountable for our actions."
Georgetown University law professor David Cole, one of the nation’s foremost constitutional lawyers, told us that the Bates decision “rests on the sound principle that the executive should not be permitted to evade judicial scrutiny by shipping its prisoners to Bagram rather than Guantanamo, and brings us closer to the rule of law.”
A similar view was expressed by Sahr MuhammedAlly of Human Rights First, who has spent substantial time in Afghanistan. He told us, "A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to conform all its detention practices to the requirements of human rights and humanitarian law. "
"Bagram must not be allowed to remain a law-free zone," he added.
And Jonathan Hafetz, an attorney with the American Civil Liberties Union National Security Project, called the Bates decision “yet another rebuke to the government's claim that it is free to establish law-free zones.”
He told us, “As the district court rightly concluded, the United States cannot escape the core protections or restraints of the Constitution by imprisoning people at Bagram rather than Guantánamo. Only a complete restoration of the rule of law at all U.S.-run prisons can achieve a return to justice and American values."
Hafetz was also critical of the Obama Administration. He told us, “The new administration is adhering to the old administration's approach by claiming it can avoid habeas corpus review and thus a check on its detention power.”
He said, “In many ways, Bagram has become the new Guantanamo, only worse because the process the detainees receive there is inferior, the treatment worse, and the public scrutiny even more superficial. The new administration also seems to be following the old administration's implausibly narrow reading of the Supreme Court's most recent decision.”
It is unclear whether the Obama Department of Justice (DOJ) will appeal Judge Bates ruling. A DOJ spokesman said the decision was still being reviewed.
IJN is the only organization litigating the cases of detainees held in U.S. custody in Afghanistan. It originally brought the cases in October 2006, on behalf of the four foreign nationals captured outside Afghanistan and brought to Bagram where they have been held without charge for more than six years.
The position that federal courts have no jurisdiction to hear lawsuits filed on behalf of foreign detainees in Afghanistan was first argued by the Bush
administration. During the Obama administration’s second month in office it told Judge Bates that it held the same view, a position that surprised and confused many human rights advocates who had supported Obama’s candidacy.
The Obama Administration has also followed the Bush positions in a number of other recent cases involving the “state secrets” doctrine, which argues that some cases cannot be heard in federal courts because the evidence would compromise national security.
In the aftermath of the Bates decision, human rights advocates are pondering how the ruling will impact the Obama administration’s efforts to formulate a policy about terrorism detainees.
Some critics of Obama administration detention policy have begun calling Bagram “Obama’s GITMO,” charging that the new president is shipping detainees to the Afghan prison to evade the Supreme Court’s ruling giving habeas corpus rights to prisoners at Guantanamo.
On his first day in office, Obama ordered the prison in Guantánamo Bay closed within a year and began a case-by-case review of the evidence against each of the roughly 240 detainees still being held there. He also ordered the closing of the “black site” secret prisons operated by the U.S. Central Intelligence Agency.
One of the seemingly intractable problems faced by the Obama administration is where to send Guantanamo detainees who are freed. Among these detainees is a group of 17 Chinese Muslims – known as Uighurs – who the U.S. says can be freed because they do not represent a threat. A federal judge ordered them released into the U.S. but that decision was overturned by the Justice Department’s appeal.
The U.S. has contended that they may be subjected to torture and persecution if they are returned to China, but argued that federal courts have no authority to order them released in the U.S. because that is a matter of immigration, not criminal, law.
Few countries have been open to accepting freed U.S. detainees – for reasons based on their own security and also, in the case of the Uigurs, out of fear of retaliation by China.
In the aftermath of the Bates decision – if it survives an appeal by the government -- the Obama administration may also have to add to its problems the question of where to send prisoners who are freed from Bagram.
Tuesday, March 31, 2009
At Last, a “Good News” Story
By William Fisher
Because mainstream media covers fewer and fewer civil liberties stories by the day, I do what I can to report on this critical subject. Given what the Bush Administration did to trash our Constitution over the past eight years, most of what I write is depressing. And my friends are constantly asking me: Can’t you find something cheerful to write about?
So once or twice a year, I search for enough positive information to write a “good news” column.
This is my first of 2009.
Every once in a while, I go to the web to read stories from the newspaper that, in 1950, suspended its good judgment and hired me as a cub reporter. Later, the Daytona Beach (Florida) News-Journal sent me to the county seat, a little town called DeLand, to run their bureau there.
Now, DeLand was familiar territory to me. I did my undergraduate work at Stetson University in that town.
The Stetson I knew was populated by a combination of Southern Baptist fundamentalists and uninformed and uninterested sons and daughters of the rich -- Bubbas and wannabe Southern Belles. How fundamentalist? Well, when I got to be editor of the college weekly newspaper, I was summoned to the office of the Dean of Students and told that I couldn’t print the word “dance,” because dancing led to pregnancy (we compromised on “frolic”).
When I arrived in DeLand to begin my studies, I was “rushed” by most of the many fraternities on campus – until they found out I was Jewish. Suddenly, the attention dried up. It was like turning off a light-switch!
So for four years, I remained the only Jew in the school (there were also three Catholics, out of total enrollment of some 1,500 students). Many of the students had never seen a Jew before I appeared, and I believe they were expecting a menacing creature with horns.
The DeLand I knew was, like most Southern towns of that era, thoroughly Jim Crow -- a combination of Babbitt and Elmer Gantry. The civil rights movement hadn’t caught anyone’s attention yet, and that was still the case when I came back to this central Florida redneck town to cover the cops and the courts.
My most vivid memories of that time were watching the local sheriff and his deputies carrying out their Saturday night raids into “colored town.” Their mission was to arrest anything moving that was black. The sheriff and his merry men had a great incentive: They were on the so-called “fee system” in which their paychecks were determined mostly by the cash bonds posted by the people they arrested. The more folks arrested, the more bonds got posted, and the more money they got. The ones who couldn’t post bonds were sent to jail.
I got into a heap of trouble writing about these “Saturday Night Raids” for the News-Journal (like get-out-of-town-or-else threats). But my old paper had the courage to publish them, often on page one.
I give you all this ancient background so that you might be able to understand my total disbelief when I read this headline in News-Journal Online:
“Stetson Students Re-create Freedom Rides.”
Here are the salient parts of the story I read, written by staff writer John Bozzo.
Following in the path of the 1961 civil rights Freedom Rides was an eye-opening experience for Stetson University student Rebecca Hallum.
"It really changes your perspective," said the 21-year-old political science-psychology major, one of 19 students from Stetson and its College of Law who re-created the bus ride last July.
"For me, it's hard to ever understand being treated with any sort of inequality because I'm a white middle-class female," Hallum said. "To see what these people had to go through simply to ride a bus was inspiring."
During the weeklong civil rights seminar, students followed the road traveled by the 1961 Freedom Riders, who rode buses in the South challenging segregation on interstate transportation.
Students met with civil rights activists including Allen Cason, a native of Orlando who participated in the Freedom Ride 48 years ago.
"He had an incredible story," Hallum said. "He was actually imprisoned after the ride. He was in solitary confinement for about a month and lived basically on bread and water."
The students also visited important sites, such as the National Civil Rights Memorial in Montgomery, Ala.
Many of the original Freedom Riders made out their wills before their rides. Riders were attacked in Birmingham and Montgomery bus stations.
Hallum saw a small marker outside Anniston, Ala., where a mob burned one of the first Freedom Ride buses. More should be done to commemorate the site, she said.
"It was overwhelming," said Hallum, who is looking forward to seeing the documentary. "It's hard to think that we take these small things for granted. To think they had to go through this incredible effort and go through so much violence."
Hallum said she was impressed how the former Freedom Riders were humble about their experiences.
"None of them were bitter," she said. "They knew they were doing the right thing."
When I was working in DeLand, it would be another decade before Earl Warren’s 1960 Supreme Court would ban segregation in interstate travel facilities – at bus stations and restaurants as well as on buses. A year later, the first Freedom Riders set off on journeys that would change our history.
And at the Stetson I knew, students being even the slightest bit interested in the situation of their black brothers and sisters would have been unthinkable. Their fellow students would have been outraged. Ostracism – even death threats – would surely have followed.
But here were kids from my alma mater re-creating one of the truly transformative events in American history.
True, only 19 students participated. But half a century ago, there wouldn’t have been one – and the notion of a weeklong civil rights seminar would have been considered delusional.
Today, Stetson has not only changed and adapted, it has actually enrolled minority students – 105 non-resident aliens, 336 Hispanics, 72 Asians, and 190 African-Americans – out of a total enrollment of just over 3,000.
That’s 190 African-Americans!
So my first “good news” of 2009 is that positive change is still alive and well – even in redneck central Florida.
I wonder how the Stetson kids feel about our new President?
Because mainstream media covers fewer and fewer civil liberties stories by the day, I do what I can to report on this critical subject. Given what the Bush Administration did to trash our Constitution over the past eight years, most of what I write is depressing. And my friends are constantly asking me: Can’t you find something cheerful to write about?
So once or twice a year, I search for enough positive information to write a “good news” column.
This is my first of 2009.
Every once in a while, I go to the web to read stories from the newspaper that, in 1950, suspended its good judgment and hired me as a cub reporter. Later, the Daytona Beach (Florida) News-Journal sent me to the county seat, a little town called DeLand, to run their bureau there.
Now, DeLand was familiar territory to me. I did my undergraduate work at Stetson University in that town.
The Stetson I knew was populated by a combination of Southern Baptist fundamentalists and uninformed and uninterested sons and daughters of the rich -- Bubbas and wannabe Southern Belles. How fundamentalist? Well, when I got to be editor of the college weekly newspaper, I was summoned to the office of the Dean of Students and told that I couldn’t print the word “dance,” because dancing led to pregnancy (we compromised on “frolic”).
When I arrived in DeLand to begin my studies, I was “rushed” by most of the many fraternities on campus – until they found out I was Jewish. Suddenly, the attention dried up. It was like turning off a light-switch!
So for four years, I remained the only Jew in the school (there were also three Catholics, out of total enrollment of some 1,500 students). Many of the students had never seen a Jew before I appeared, and I believe they were expecting a menacing creature with horns.
The DeLand I knew was, like most Southern towns of that era, thoroughly Jim Crow -- a combination of Babbitt and Elmer Gantry. The civil rights movement hadn’t caught anyone’s attention yet, and that was still the case when I came back to this central Florida redneck town to cover the cops and the courts.
My most vivid memories of that time were watching the local sheriff and his deputies carrying out their Saturday night raids into “colored town.” Their mission was to arrest anything moving that was black. The sheriff and his merry men had a great incentive: They were on the so-called “fee system” in which their paychecks were determined mostly by the cash bonds posted by the people they arrested. The more folks arrested, the more bonds got posted, and the more money they got. The ones who couldn’t post bonds were sent to jail.
I got into a heap of trouble writing about these “Saturday Night Raids” for the News-Journal (like get-out-of-town-or-else threats). But my old paper had the courage to publish them, often on page one.
I give you all this ancient background so that you might be able to understand my total disbelief when I read this headline in News-Journal Online:
“Stetson Students Re-create Freedom Rides.”
Here are the salient parts of the story I read, written by staff writer John Bozzo.
Following in the path of the 1961 civil rights Freedom Rides was an eye-opening experience for Stetson University student Rebecca Hallum.
"It really changes your perspective," said the 21-year-old political science-psychology major, one of 19 students from Stetson and its College of Law who re-created the bus ride last July.
"For me, it's hard to ever understand being treated with any sort of inequality because I'm a white middle-class female," Hallum said. "To see what these people had to go through simply to ride a bus was inspiring."
During the weeklong civil rights seminar, students followed the road traveled by the 1961 Freedom Riders, who rode buses in the South challenging segregation on interstate transportation.
Students met with civil rights activists including Allen Cason, a native of Orlando who participated in the Freedom Ride 48 years ago.
"He had an incredible story," Hallum said. "He was actually imprisoned after the ride. He was in solitary confinement for about a month and lived basically on bread and water."
The students also visited important sites, such as the National Civil Rights Memorial in Montgomery, Ala.
Many of the original Freedom Riders made out their wills before their rides. Riders were attacked in Birmingham and Montgomery bus stations.
Hallum saw a small marker outside Anniston, Ala., where a mob burned one of the first Freedom Ride buses. More should be done to commemorate the site, she said.
"It was overwhelming," said Hallum, who is looking forward to seeing the documentary. "It's hard to think that we take these small things for granted. To think they had to go through this incredible effort and go through so much violence."
Hallum said she was impressed how the former Freedom Riders were humble about their experiences.
"None of them were bitter," she said. "They knew they were doing the right thing."
When I was working in DeLand, it would be another decade before Earl Warren’s 1960 Supreme Court would ban segregation in interstate travel facilities – at bus stations and restaurants as well as on buses. A year later, the first Freedom Riders set off on journeys that would change our history.
And at the Stetson I knew, students being even the slightest bit interested in the situation of their black brothers and sisters would have been unthinkable. Their fellow students would have been outraged. Ostracism – even death threats – would surely have followed.
But here were kids from my alma mater re-creating one of the truly transformative events in American history.
True, only 19 students participated. But half a century ago, there wouldn’t have been one – and the notion of a weeklong civil rights seminar would have been considered delusional.
Today, Stetson has not only changed and adapted, it has actually enrolled minority students – 105 non-resident aliens, 336 Hispanics, 72 Asians, and 190 African-Americans – out of a total enrollment of just over 3,000.
That’s 190 African-Americans!
So my first “good news” of 2009 is that positive change is still alive and well – even in redneck central Florida.
I wonder how the Stetson kids feel about our new President?
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