By William Fisher
The long road to the proverbial “day in court” just got longer for five men who claim they were ‘disappeared’ and tortured by the U.S. Central Intelligence Agency.
The men, who say they were victims of the ‘extraordinary rendition’ program conducted during the administration of President George W. Bush, have been trying since 2007 to get their cases heard on the merits.
But it is now far from clear that the merits of these cases will heard any time soon – if ever. The reason is that the Department of Justice – first through Bush Administration lawyers, now through Obama Administration lawyers -- has invoked the so-called ‘state secrets’ privilege, claiming that a public trial would endanger U.S. national security.
The latest development in the case came last week, when the Ninth Circuit Court of Appeals set aside an earlier ruling by three of its own judges and said a majority of its judges had voted to refer the case to an 11-judge panel for a new hearing. The request to rehear the case, now scheduled for December 15, came from the Obama Administration.
That decision put on hold the earlier findings of the three-judge panel, which had reinstated the Mohamed suit in April. That 3-0 ruling rejected arguments by the Bush and Obama administrations that the case concerned secrets too sensitive to disclose in court.
In its tortuous journey toward justice, the Jeppesen case has taken on many aspects of an international spy thriller – involving high courts, senior diplomatic officials in two countries, prisoner abuse and threats to withhold intelligence-sharing among allies if the abuse was publicly disclosed.
The case is known as Mohamed et al v. Jeppesen Dataplan. The Mohamed is Binyam Mohamed, an Ethiopian citizen and British resident who, while in CIA custody in 2002, was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.
In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, from which he was released without charge in February.
The Jeppesen Dataplan named in the case refers to a subsidiary of aerospace giant Boeing, located in the California Bay Area, which is alleged to have knowingly provided the CIA with logistical support for the chartered aircraft used to “render” terror suspects to countries where they were disappeared and tortured.
A Council of Europe report in 2007 described Jeppesen as the CIA's aviation services provider. In a court declaration, a former employee quoted a company official as telling staff members in 2006 that Jeppesen handled the CIA's "torture flights." And, according to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
The three-judge appeals court panel said the government and Jeppesen could take steps to protect national secrets as the case proceeded. The judges said the administration's argument, if accepted, would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law."
Ben Wizner, an attorney with the American Civil Liberties Union (ACLU), which represents the plaintiffs, told us, “Much is at stake in this case. If the CIA's overbroad secrecy claims prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.
He said he was "disappointed that the Obama administration continues to stand in the way of torture victims having their day in court."
He added, "This case is not about secrecy. It's about immunity from accountability."
"We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a ‘state secret.' In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law," Wizner said.
The fear is that the 11-judge appeals court panel may agree with the DOJ that disclosure in a trial in a public courtroom would compromise national security. Then, the five petitioners would probably ask the U.S. Supreme Court to review the case – an action the government too would probably take if it lost in the appeals court. If the high court declined to hear the case, that would be the end of the legal road for Mohamed and his co-plaintiffs.
Wizner told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."
The San Francisco Chronicle is reporting that six of its 27 judges have disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee who, as a Justice Department lawyer in the Bush administration, wrote a March 2002 memo saying the president could legally transfer captives to foreign custody.
Judge Stephen Reinhardt, whose wife, Ramona Ripston, is the American Civil Liberties Union's executive director in Southern California, also disqualified himself. The ACLU represents the plaintiffs in the case.
Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without U.S. charges.
Binyam Mohammed, the best-known of the five, was flown back to Britain from Guantanamo in February. He had been on a hunger strike there for several weeks and British Government officials had visited him to determine that he was physically fit to return to the U.K. He claims that up until the time of his release, he was being asked to agree to a no-disclosure agreement in return for charges not being brought against him.
The position taken by the new administration of President Obama took ACLU lawyers by surprise. In their presentation to the Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that the lawsuit brought on behalf of Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security.
The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, then only recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”
But that appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, Leon Panetta, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.
In the past, the U.S. has received “diplomatic assurances” from countries on the receiving end of the extraordinary rendition trips that their new “guests” would not be tortured. These assurances have proved to be demonstrably worthless.
The Jeppesen case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K. But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”
The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.
But the U.S State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”
In the latest ruling from the U.K., the British High Court found that while Mohamed, a British resident, was in American custody, the CIA told British intelligence agents how he was being treated. British agents then wrote memos to record what they were told. Last year, the High Court ruled that Mohamed -- who was then at Guantanamo -- had the right to obtain those documents from the British intelligence service in order to prove that statements he made to the CIA were the by-product of coercion.
The High Court's original ruling in Mohamed's favor contained seven paragraphs which described the torture to which Mohamed was subjected.
The ACLU has written to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.
Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security.
Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.
Ironically, in what is believed to be the first use of the state secrets privilege, it was invoked to cover up a falsehood. In a 1953 case known as United States v. Reynolds, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. Rather, they contained information about the poor condition of the aircraft itself, which would have compromised to the Air Force's case. Many legal experts have alleged government abuse of secrecy in this landmark case.
Meanwhile, Congress is being pressured to seriously consider legislation to limit the use of the state secrets defense. Major civil rights and open government organizations have written to leaders of the House and Senate Judiciary Committees urging them to pass legislation to restrict the government’s ability to use the privilege to dismiss litigation charging government wrongdoing.
Although the Obama administration yesterday announced a new policy in which it essentially promised to use of the state secrets privilege more sparingly, that promise is not good enough, the organizations wrote.
“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.
However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”
The seven organizations which signed the letter include the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.
The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).
In addition to Mohamed, the four other appellants in the Jeppesen case include:
• Italian citizen Abou Elkassim Britel, who In May 2002, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents and where he is now incarcerated.
• Egyptian citizen Ahmed Agiza, who In December 2001, was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.
• Mohamed Farag Ahmad Bashmilah was taken into custody in October 2003 by the Jordanian General Intelligence Department and tortured and interrogated for days. On the morning of October 26, 2003 he was turned over to agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base in Bagram, Afghanistan. Bashmilah was finally freed on March 27, 2006, never once having faced any charges related to terrorism.
• Iraqi citizen and long-term British permanent resident Bisher al-Rawi was kidnapped in November 2002 and later secretly flown by the CIA to Kabul, Afghanistan. For two months al-Rawi was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba in February 2003. There, he was imprisoned for more than four years until his release on March 30, 2007. On his release, al-Rawi returned to his home in London where he currently resides freely.
No charges have ever been brought against him.
Monday, November 02, 2009
Monday, October 26, 2009
Obama Urged to Fully Comply with Anti-Torture Treaty
By William Fisher
The fifteenth anniversary of the U.S. ratification of the United Nations Convention Against Torture passed last week with little fanfare and virtually no press attention from the mainstream media here.
But according to the American Civil Liberties Union (ACLU), "U.S. policy continues to fall short of ensuring full compliance with the treaty."
For example, the organisation said that an appendix to the Army Field Manual (AFM) can still facilitate cruel treatment of prisoners and detainees at home and abroad.
The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (CAT) is the most comprehensive international human rights treaty dealing exclusively with the issues of torture and abuse. It came into effect in 1987, and has been ratified by 146 countries.
The treaty was initially signed by the Ronald Reagan administration in 1988 and was ratified by the Senate on Oct. 21, 1994, but with reservations, understandings and declarations (RUDs) that failed to make the treaty fully applicable.
The administration of former President George W. Bush exploited these RUDs to justify abusive interrogation policies, including the use of waterboarding, stress positions, extreme isolation and sleep deprivation.
In 2006, the Committee Against Torture, which reviews country compliance with CAT, criticised the U.S. for failure to uphold the treaty and called for full compliance.
After taking office, President Barack Obama issued an executive order prohibiting torture. But under an appendix to the 2006 revised U.S. Army Field Manual – the most recent edition – practices considered incompatible with CAT and international law are still allowed. These include force-feeding, psychological torture, sleep and sensory deprivation.
And under Appendix M to the AFM, detainees can be "separated" or held in isolation from other detainees for 30 days, or longer with authorisation, and allowed only four hours of continuous sleep per night over 30 days, which can be prolonged upon approval.
Jamil Dakwar, director of the ACLU Human Rights Programme, told IPS, "The president's first nine months in office have signaled a policy shift on human rights and commitment to the rule of law. Certainly his speech to the U.N. and his Nobel Peace Prize have raised the bar of expectation as to his commitment to advancing human rights at home and abroad."
But, he added, "There is still much more to do, including honouring and expanding U.S. human rights commitments and fully incorporating them into domestic policy. U.S. credibility abroad and commitment to human rights at home will be judged by deeds, not by words."
"What is needed now is taking concrete actions to translate these commitments to a robust human rights policy. A new presidential executive order to reconstitute the Inter-Agency Working on Human Rights would be an important step forward," Dakwar said.
"To fulfill its human rights requirements, the administration must also fully investigate crimes of torture committed in violation of U.S. and international law and withdraw the Army Field Manual's Appendix M," he added.
Since his inauguration, President Obama has helped restore U.S. standing on human rights by issuing executive orders to close the Guantánamo detention centre, prohibiting CIA prisons and enforcing the ban on torture, joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities (CRPD), and prioritising the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
While welcoming these steps, the ACLU is calling for additional concrete measures to reassert U.S. leadership on human rights, including the full investigation of torture crimes, abandoning the Guantánamo military commissions and renouncing the practice of holding detainees indefinitely without charge or trial.
The ACLU's Dakwar told IPS that he "expected the administration to announce concrete plans to implement and enforce ratified human rights treaties and the resurrection of the Interagency Working Group on Human Rights - disbanded during the Bush administration - to coordinate and promote human rights within domestic policy."
He said, "There is hope and expectation within the human rights community that the president will make the announcement on resurrection of the Inter-Agency Working Group on Human Rights as soon as Dec. 10 – international human rights day and the day he will be receiving the Nobel Peace Prize."
He noted that shortly after the U.S. elections, the ACLU and more than 50 U.S.-based human rights, civil rights, civil liberties and social justice organisations launched the Campaign for a New Domestic Human Rights Agenda, which identified concrete goals for pushing the administration and Congress to strengthen the U.S.'s commitment to human rights at home.
The campaign have four primary objectives. First is re-creation of the Interagency Working Group on Human Rights, first initiated in 1998 by President Clinton through an executive order, but effectively disbanded by the Bush administration in 2001. The call is for a new executive order to be issued with an improved and strengthened mandate.
Second is transformation of the U.S. Civil Rights Commission into a U.S. Civil and Human Rights Commission. The current commission was created in the 1950s with the mandate of monitoring and enforcing compliance with U.S. civil rights law.
In recent years, it has grown dysfunctional and been largely discredited. Currently there is a push to re-form the commission. The Leadership Conference for Civil Rights has taken the lead on the reform effort, and, along with the Campaign, has called for a new commission with a mandate to monitor the U.S.'s compliance with its human rights (as well as civil rights) commitments.
Third is implementation of recommendations by the U.N. Committee on the Elimination of Racial Discrimination (CERD) and to create a plan of action to enforce them at the domestic level.
Lastly, the Campaign is calling for implementation and coordination of human rights on the state and local level, particularly in partnership with state and local human rights and civil rights commissions.
The fifteenth anniversary of the U.S. ratification of the United Nations Convention Against Torture passed last week with little fanfare and virtually no press attention from the mainstream media here.
But according to the American Civil Liberties Union (ACLU), "U.S. policy continues to fall short of ensuring full compliance with the treaty."
For example, the organisation said that an appendix to the Army Field Manual (AFM) can still facilitate cruel treatment of prisoners and detainees at home and abroad.
The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (CAT) is the most comprehensive international human rights treaty dealing exclusively with the issues of torture and abuse. It came into effect in 1987, and has been ratified by 146 countries.
The treaty was initially signed by the Ronald Reagan administration in 1988 and was ratified by the Senate on Oct. 21, 1994, but with reservations, understandings and declarations (RUDs) that failed to make the treaty fully applicable.
The administration of former President George W. Bush exploited these RUDs to justify abusive interrogation policies, including the use of waterboarding, stress positions, extreme isolation and sleep deprivation.
In 2006, the Committee Against Torture, which reviews country compliance with CAT, criticised the U.S. for failure to uphold the treaty and called for full compliance.
After taking office, President Barack Obama issued an executive order prohibiting torture. But under an appendix to the 2006 revised U.S. Army Field Manual – the most recent edition – practices considered incompatible with CAT and international law are still allowed. These include force-feeding, psychological torture, sleep and sensory deprivation.
And under Appendix M to the AFM, detainees can be "separated" or held in isolation from other detainees for 30 days, or longer with authorisation, and allowed only four hours of continuous sleep per night over 30 days, which can be prolonged upon approval.
Jamil Dakwar, director of the ACLU Human Rights Programme, told IPS, "The president's first nine months in office have signaled a policy shift on human rights and commitment to the rule of law. Certainly his speech to the U.N. and his Nobel Peace Prize have raised the bar of expectation as to his commitment to advancing human rights at home and abroad."
But, he added, "There is still much more to do, including honouring and expanding U.S. human rights commitments and fully incorporating them into domestic policy. U.S. credibility abroad and commitment to human rights at home will be judged by deeds, not by words."
"What is needed now is taking concrete actions to translate these commitments to a robust human rights policy. A new presidential executive order to reconstitute the Inter-Agency Working on Human Rights would be an important step forward," Dakwar said.
"To fulfill its human rights requirements, the administration must also fully investigate crimes of torture committed in violation of U.S. and international law and withdraw the Army Field Manual's Appendix M," he added.
Since his inauguration, President Obama has helped restore U.S. standing on human rights by issuing executive orders to close the Guantánamo detention centre, prohibiting CIA prisons and enforcing the ban on torture, joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities (CRPD), and prioritising the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
While welcoming these steps, the ACLU is calling for additional concrete measures to reassert U.S. leadership on human rights, including the full investigation of torture crimes, abandoning the Guantánamo military commissions and renouncing the practice of holding detainees indefinitely without charge or trial.
The ACLU's Dakwar told IPS that he "expected the administration to announce concrete plans to implement and enforce ratified human rights treaties and the resurrection of the Interagency Working Group on Human Rights - disbanded during the Bush administration - to coordinate and promote human rights within domestic policy."
He said, "There is hope and expectation within the human rights community that the president will make the announcement on resurrection of the Inter-Agency Working Group on Human Rights as soon as Dec. 10 – international human rights day and the day he will be receiving the Nobel Peace Prize."
He noted that shortly after the U.S. elections, the ACLU and more than 50 U.S.-based human rights, civil rights, civil liberties and social justice organisations launched the Campaign for a New Domestic Human Rights Agenda, which identified concrete goals for pushing the administration and Congress to strengthen the U.S.'s commitment to human rights at home.
The campaign have four primary objectives. First is re-creation of the Interagency Working Group on Human Rights, first initiated in 1998 by President Clinton through an executive order, but effectively disbanded by the Bush administration in 2001. The call is for a new executive order to be issued with an improved and strengthened mandate.
Second is transformation of the U.S. Civil Rights Commission into a U.S. Civil and Human Rights Commission. The current commission was created in the 1950s with the mandate of monitoring and enforcing compliance with U.S. civil rights law.
In recent years, it has grown dysfunctional and been largely discredited. Currently there is a push to re-form the commission. The Leadership Conference for Civil Rights has taken the lead on the reform effort, and, along with the Campaign, has called for a new commission with a mandate to monitor the U.S.'s compliance with its human rights (as well as civil rights) commitments.
Third is implementation of recommendations by the U.N. Committee on the Elimination of Racial Discrimination (CERD) and to create a plan of action to enforce them at the domestic level.
Lastly, the Campaign is calling for implementation and coordination of human rights on the state and local level, particularly in partnership with state and local human rights and civil rights commissions.
Wednesday, October 21, 2009
A Simpleton Tries to Understand the Health Care Debate
By William Fisher
Now, the first thing I want you to know is that I'm no health care policy expert. Far from it.
But, like the rest of us, I have a body and a mind that can get sick. So I'm a participant in the debate whether or not I want to be.
And being about to mark my eighty-first birthday gives me a shorter time to participate but, arguably, a heightened motivation.
Over these past months, I have been drowning in seas of data and analysis and opinions and lies and spin about health. But very little of it has actually been about health. A lot of it has been about process, such as the process in the sausage factory through which legislation gets crafted. But mostly it has been about money -- money headed for so-called health insurance companies.
Now, maybe I have a simplistic mind, but frankly I don't understand why health care and insurance companies keep appearing in the same sentences.
After all, these two things are not the same. Insurance companies are not in the health care business. They are in the risk business. They assess risk and then charge you a fee -- it's called a premium -- to protect you against that risk. Just like your car or your home insurance. If your car gets wrecked, the insurance company doesn't make it better; it gives you money so that you can make it better. Same with home insurance; if a storm tears your roof off, your insurance company will send a contractor to fix it.
So it is with health insurance. Health insurance companies don't do a thing to make you well if you're sick. That's the work that's done by physicians, nurses, hospitals and clinics. And these two groups -- health care professionals and health insurance companies -- are far from buddies. In fact, they're pretty intense enemies.
The reason is that the health insurance companies, being in the risk business, do whatever they can to reduce their risk. So they are more than likely to deny all or parts of the care your doctor is prescribing to make you better. Their loyalties are to their shareholders. Shareholders who've seen a run of great profits, based on ever-rising premiums, based in turn on generous government subsidies and an almost total lack of competition among all these companies.
Oh, I forgot to mention that our Congress, in its infinite wisdom, gave these health insurance companies the same antitrust exemption enjoyed by major league baseball. This means they can fix prices with impunity. Trouble is they haven't been staying fixed for long; premiums have been increasing exponentially year after year. And there's been no noticeable improvement in our health; in fact, our health has gotten steadily worse.
These companies go still further to reduce their risk. For example, if you get sick you're insurance is quite likely to be dropped -- an action the insurance companies antiseptically call "rescission." They rescind a lot. In other words, just when you're sick and need coverage the most, that's when they tell you "you're out!"
Then there's the "preexisting condition" gambit. I just read about three denials that seem really gross. One was refusing coverage to a victim of domestic violence, which the company ruled was a preexisting condition. The second refusal involved a newborn who the insurance company claimed was too fat. And that was followed by a third refusal -- because the infant was too skinny.
Maybe, like me, you've been reading Karen Tumulty's pieces in TIME on the health care issue. She captures the facts as well as anyone I've read. And she has assembled one hell of a chamber of horrors -- about people with serious but treatable illnesses who were told, essentially, to find a charity to help because we, the insurance company you've been paying to reduce your risk, have been too busy reducing our own. Very few happy endings here: patients have died as a result.
Same thing happens if you get health insurance at work but lose your job. You can buy something called COBRA -- if you can afford to pay three or four times what you were paying when you had a job.
Gee, it must be wonderful to run a company set up to take risks on people getting sick -- but which has only healthy customers!
Now, here's another wrinkle to think about. How'd we get to this place where employers provide health insurance to their employees? And take it away when they fire you. Well, I'm told this practice started back in World War Two when the U.S. had wage and price controls. Your wages couldn't be increased so along came health insurance to make up the difference -- and give employers even more economic power over those who work for them.
Seems downright un-American to me.
In fact, seems to me this whole health care debate is struggling to reconcile two contradictory narratives we Americans invented to help us understand ourselves and our history. One is the narrative of rugged individualism. In this bit of mythology, everyone is John Wayne and nobody needs anyone's help to meet tough challenges -- least of all the government's help.
Then there's that other bit of American mythology, the part that talks about how, when the going gets rough for our fellow citizens, we all rally round and share our energy and our wisdom and our compassion to make things right again.
Neither of these narratives is true, but we like to believe both of them anyway, even if they are myths and contradictory myths at that.
Now, it seems to me there's a third bit of American mythology that's getting overlooked. That's the bit that talks about certain inalienable rights we all have, among which are life, liberty and the pursuit of happiness. That's from our Declaration of Independence, written by our Founding Fathers.
I like to think of life, liberty and the pursuit of happiness not as states of being, but as goals. That's because we've never achieved 100% of any of these three freedoms. So they -- and we -- are works in progress.
But it's pretty hard to imagine pursuing much happiness if you happen to get sick, get cut off by your health insurance company, and find yourself on your way to medical bankruptcy. Isn't that the point where we invoke that other piece of great American mythology -- the one that says now we circle the wagons, pool our resources, and find a way for all of us to help all our fellow citizens?
Well, there's only one way to do that and that way is to use our government. The government is us; we pay for it, we own it. We need to make it work for us.
Sure, there are a lot of folks out there who are telling us we can't go down this road because it will lead us into the dreaded socialized medicine. A government takeover of health care.
So what? Forget the labels; that's propaganda. It's the same sleazy accusation that was used against FDR's New Deal in the Thirties and again in the 1960s in the right-wing efforts to demolish LBJ's Great Society.
But, in fact, it's exactly what we're already doing for our seniors under Medicare, for our men and women in uniform, for our veterans through the VA -- and for every member of Congress. Seems to work just fine for these folks.
So why is it going to be such a disaster for the rest of us?
When you think about how much we pay for health care and health insurance in America -- many times more than the most advanced countries in the rest of the world -- and understand that we get substantially worse results, one has to conclude we must be doing something wrong.
We need to fix a bunch of things beyond predatory, uncompetitive, profit-centered health insurance companies. But neutering these vultures would be a start.
Maybe it's time to tell our Congress persons how we feel.
Now, the first thing I want you to know is that I'm no health care policy expert. Far from it.
But, like the rest of us, I have a body and a mind that can get sick. So I'm a participant in the debate whether or not I want to be.
And being about to mark my eighty-first birthday gives me a shorter time to participate but, arguably, a heightened motivation.
Over these past months, I have been drowning in seas of data and analysis and opinions and lies and spin about health. But very little of it has actually been about health. A lot of it has been about process, such as the process in the sausage factory through which legislation gets crafted. But mostly it has been about money -- money headed for so-called health insurance companies.
Now, maybe I have a simplistic mind, but frankly I don't understand why health care and insurance companies keep appearing in the same sentences.
After all, these two things are not the same. Insurance companies are not in the health care business. They are in the risk business. They assess risk and then charge you a fee -- it's called a premium -- to protect you against that risk. Just like your car or your home insurance. If your car gets wrecked, the insurance company doesn't make it better; it gives you money so that you can make it better. Same with home insurance; if a storm tears your roof off, your insurance company will send a contractor to fix it.
So it is with health insurance. Health insurance companies don't do a thing to make you well if you're sick. That's the work that's done by physicians, nurses, hospitals and clinics. And these two groups -- health care professionals and health insurance companies -- are far from buddies. In fact, they're pretty intense enemies.
The reason is that the health insurance companies, being in the risk business, do whatever they can to reduce their risk. So they are more than likely to deny all or parts of the care your doctor is prescribing to make you better. Their loyalties are to their shareholders. Shareholders who've seen a run of great profits, based on ever-rising premiums, based in turn on generous government subsidies and an almost total lack of competition among all these companies.
Oh, I forgot to mention that our Congress, in its infinite wisdom, gave these health insurance companies the same antitrust exemption enjoyed by major league baseball. This means they can fix prices with impunity. Trouble is they haven't been staying fixed for long; premiums have been increasing exponentially year after year. And there's been no noticeable improvement in our health; in fact, our health has gotten steadily worse.
These companies go still further to reduce their risk. For example, if you get sick you're insurance is quite likely to be dropped -- an action the insurance companies antiseptically call "rescission." They rescind a lot. In other words, just when you're sick and need coverage the most, that's when they tell you "you're out!"
Then there's the "preexisting condition" gambit. I just read about three denials that seem really gross. One was refusing coverage to a victim of domestic violence, which the company ruled was a preexisting condition. The second refusal involved a newborn who the insurance company claimed was too fat. And that was followed by a third refusal -- because the infant was too skinny.
Maybe, like me, you've been reading Karen Tumulty's pieces in TIME on the health care issue. She captures the facts as well as anyone I've read. And she has assembled one hell of a chamber of horrors -- about people with serious but treatable illnesses who were told, essentially, to find a charity to help because we, the insurance company you've been paying to reduce your risk, have been too busy reducing our own. Very few happy endings here: patients have died as a result.
Same thing happens if you get health insurance at work but lose your job. You can buy something called COBRA -- if you can afford to pay three or four times what you were paying when you had a job.
Gee, it must be wonderful to run a company set up to take risks on people getting sick -- but which has only healthy customers!
Now, here's another wrinkle to think about. How'd we get to this place where employers provide health insurance to their employees? And take it away when they fire you. Well, I'm told this practice started back in World War Two when the U.S. had wage and price controls. Your wages couldn't be increased so along came health insurance to make up the difference -- and give employers even more economic power over those who work for them.
Seems downright un-American to me.
In fact, seems to me this whole health care debate is struggling to reconcile two contradictory narratives we Americans invented to help us understand ourselves and our history. One is the narrative of rugged individualism. In this bit of mythology, everyone is John Wayne and nobody needs anyone's help to meet tough challenges -- least of all the government's help.
Then there's that other bit of American mythology, the part that talks about how, when the going gets rough for our fellow citizens, we all rally round and share our energy and our wisdom and our compassion to make things right again.
Neither of these narratives is true, but we like to believe both of them anyway, even if they are myths and contradictory myths at that.
Now, it seems to me there's a third bit of American mythology that's getting overlooked. That's the bit that talks about certain inalienable rights we all have, among which are life, liberty and the pursuit of happiness. That's from our Declaration of Independence, written by our Founding Fathers.
I like to think of life, liberty and the pursuit of happiness not as states of being, but as goals. That's because we've never achieved 100% of any of these three freedoms. So they -- and we -- are works in progress.
But it's pretty hard to imagine pursuing much happiness if you happen to get sick, get cut off by your health insurance company, and find yourself on your way to medical bankruptcy. Isn't that the point where we invoke that other piece of great American mythology -- the one that says now we circle the wagons, pool our resources, and find a way for all of us to help all our fellow citizens?
Well, there's only one way to do that and that way is to use our government. The government is us; we pay for it, we own it. We need to make it work for us.
Sure, there are a lot of folks out there who are telling us we can't go down this road because it will lead us into the dreaded socialized medicine. A government takeover of health care.
So what? Forget the labels; that's propaganda. It's the same sleazy accusation that was used against FDR's New Deal in the Thirties and again in the 1960s in the right-wing efforts to demolish LBJ's Great Society.
But, in fact, it's exactly what we're already doing for our seniors under Medicare, for our men and women in uniform, for our veterans through the VA -- and for every member of Congress. Seems to work just fine for these folks.
So why is it going to be such a disaster for the rest of us?
When you think about how much we pay for health care and health insurance in America -- many times more than the most advanced countries in the rest of the world -- and understand that we get substantially worse results, one has to conclude we must be doing something wrong.
We need to fix a bunch of things beyond predatory, uncompetitive, profit-centered health insurance companies. But neutering these vultures would be a start.
Maybe it's time to tell our Congress persons how we feel.
Thursday, September 24, 2009
The Torture Memos: Rationalizing the Unthinkable -- A Must-Read.
By William Fisher
For me, David Cole has long been the gold standard for his exquisite knowledge of our Constitution and his relentless dedication to its values.
So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.
Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society.
This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”
As we all now know, that sloppy and craven legal analysis contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.
Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.
Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.
Exhibit A is John Yoo, now a law professor at the University of California's law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.
Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: "Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage," Carter says. He promises to never "do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual."
“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration's national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the '70s, and endangering the nation.”
Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”
“Our nation's leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:
“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”
And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck —it is because of the hard work of members of the military and our intelligence agencies.”
“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”
“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq's lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida's leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.
“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.
But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.
Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to -- the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.
I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.
Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.
For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.
John Yoo is far from any lawyer’s lawyer.
(“The Torture Memos: Rationalizing the Unthinkable”, by David Cole, Published by The New Press, September 8, 2009.)
For me, David Cole has long been the gold standard for his exquisite knowledge of our Constitution and his relentless dedication to its values.
So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.
Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society.
This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”
As we all now know, that sloppy and craven legal analysis contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.
Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.
Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.
Exhibit A is John Yoo, now a law professor at the University of California's law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.
Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: "Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage," Carter says. He promises to never "do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual."
“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration's national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the '70s, and endangering the nation.”
Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”
“Our nation's leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:
“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”
And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck —it is because of the hard work of members of the military and our intelligence agencies.”
“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”
“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq's lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida's leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.
“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.
But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.
Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to -- the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.
I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.
Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.
For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.
John Yoo is far from any lawyer’s lawyer.
(“The Torture Memos: Rationalizing the Unthinkable”, by David Cole, Published by The New Press, September 8, 2009.)
Monday, September 14, 2009
How New Are Bagram’s “New Rules”?
By William Fisher
Human rights activists and legal experts reacted swiftly today to disclosures that the U.S. Government is planning to introduce new measures they claim would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.
Their views range from cautious optimism to total condemnation.
There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.
The new guidelines expected to be issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.
Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.
Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”
She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military's own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”
She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”
“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.
“The idea of assigning a non-lawyer 'personal representative' who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn't result in fair proceedings from the failed experiment at Guantanamo -- called the "Combatant Status Review Tribunals" (CSRTs) -- which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”
A more hopeful note was struck by Sahr MuhammedAlly, Senior Associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”
But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don't provide.”
She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.
David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.
He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”
He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”
He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”
In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram.
“The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”
While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel -- they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”
Human rights activists and legal experts reacted swiftly today to disclosures that the U.S. Government is planning to introduce new measures they claim would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.
Their views range from cautious optimism to total condemnation.
There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.
The new guidelines expected to be issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.
Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.
Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”
She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military's own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”
She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”
“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.
“The idea of assigning a non-lawyer 'personal representative' who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn't result in fair proceedings from the failed experiment at Guantanamo -- called the "Combatant Status Review Tribunals" (CSRTs) -- which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”
A more hopeful note was struck by Sahr MuhammedAlly, Senior Associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”
But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don't provide.”
She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.
David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.
He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”
He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”
He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”
In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram.
“The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”
While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel -- they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”
Friday, September 11, 2009
Some GITMO Prisoners Fight Release
By William Fisher
As 13 prisoners held at the U.S. naval Base at Guantanamo Bay, Cuba, appeared set to finally win their freedom, others are asking their release to be deferred.
The problem is that some of those cleared for release fear they will be tortured if they are transferred to other countries, in some cases their home countries.
Their lawyers have asked a federal court to delay their release from Guantanamo until their cases can be reviewed by the Supreme Court.
News of this latest twist in the long-running GITMO-release saga came as the government announced that 13 Uighurs – Turkic Muslims from China – have agreed to be transferred to Palau, a tiny island nation in the Pacific Ocean, some 500 miles (800 km) east of the Philippines.
For the 13, release will end years of imprisonment, abusive interrogations, and legal battles in both U.S. military and civilian courts.
The Uighurs cannot be repatriated to China because domestic American law proscribes deporting individuals to countries where they are likely to be abused.
The Bush administration conducted bilateral negotiations with a number of other countries to accept captives who had been cleared for release, but with limited success. These negotiations have continued under President Barack Obama.
The Uighurs were arrested in the “badlands” between Pakistan and Afghanistan in 2001, near where Osama bin Laden was believed to be hiding at the time, and had been trained to use automatic assault rifles.
The men were taken back to Afghanistan to a U.S. detention center in the city of Kandahar, interrogated for several months, and then flown to Guantanamo Bay.
Their cases were eventually heard by the U.S. military’s Combat Status Review Tribunals, which determined that they were not enemy combatants and posed no threat to the U.S.
Five of the Uighurs were released to Albania in 2006. One of the five subsequently was granted asylum in Sweden. In June of this year, the Obama administration negotiated the release of four additional Uighurs to Bermuda.
Meanwhile, in 2008, in a plea to a federal court for a writ of habeas corpus, lawyers for the remaining Uighurs challenged their continued detention. A federal judge ordered them released into the U.S., but that decision was reversed by an appeals court in February, 2009.
In April, lawyers for the Uighurs asked the Supreme Court to recognize that the right to habeas corpus requires a remedy when a court finds that an individual is wrongly detained. The petition asks for the Uighurs’ release.
"We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge's learned essay but something meaningful – their release," said Sabin Willett, of the Boston law firm of Bingham McCutchen, an attorney for the Uighurs.
In an effort to restore habeas petitions to their traditional status, a federal circuit court this week issued a one-line order in the Uighurs’ case (known as Kiyemba, et al., v. Obama, et al) giving the government sweeping authority — without “second-guessing” by the courts — to move detainees out of Guantanamo.
As a result, lawyers for the Uighurs are soon expected to file a second appeal to the Supreme Court. The key issue will be whether judges have any power to impose any controls on detainee transfers.
That is also a key issue for an Algerian national, Ahmed Belbacha, who has asked the Circuit Court to hold in abeyance his potential transfer to his home country, where he fears he will be tortured either by the government for past political activity, or by a terrorist organization he says has threatened him in the past.
His lawyer, Zachary Katznelson, senior counsel with Reprieve, the London-based legal charity, says his client describes his cell in Guantanamo as “like a grave.” He says, “Although it sounds crazy he would rather stay in those conditions than go back to Algeria.”
The 38-year-old Belbacha fled Algeria in 1999 at the height of the civil war between the Armed Islamic Group (GIA) and the Algerian Government. He and his family received death threats from the GIA, which killed thousands during the 1990s.
Belbacha fled to France and then to Britain, where he applied for asylum. He was given exceptional leave to remain pending the outcome of his application.
He says that in July 2001 he traveled to Pakistan to undertake religious study. While there he crossed the border into Afghanistan and, when the US-led invasion began, crossed back into Pakistan. He claims that in December 2001 he was apprehended by villagers near Peshawar, in northwest Pakistan, and sold to the authorities for a bounty.
American agents first sent him to a prison camp near Kandahar and then, in March 2002,to Guantanamo, where a military tribunal alleged that he had associated with the Taleban in Afghanistan and ruled that his detention was justified. But in February of this year, the U.S. said he was fit for release.
His lawyers say they are prepared to go to the Supreme Court to prevent his transfer.
According to Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized legal defenses for dozens of Guantanamo detainees, “This issue has come up in the context of the 60-odd detainees who have no safe home country to be returned to. The government is resisting bringing them into the U.S. by arguing that the courts have no power to order a detainee released into the United States even if the government has no legal right to hold him and can’t find a safe country to take him.”
He told us, “Paradoxically, that argument – which the government is making so it can avoid taking even a single detainee into the U.S. -- is standing in the way of finding other countries to take the majority of the detainees, as foreign governments ask themselves why they should take in Guantanamo’s refugees when the U.S. will not contribute to the effort.”
Uighers’ attorney, Sabin Willett, says the courts are making “a hash” of the habeas corpus tradition. He told us, “The remedy for indefinite detention by the executive jailer turns out to be to direct the executive jailer to enter into diplomacy with third parties beyond the court's jurisdiction to try to free the prisoner on whatever terms it chooses.”
Major David Frakt, a law professor at Washington State University, and formerly a lead defense counsel at the Office of Military Commissions, agrees.
He told us, “In most cases, either the detainee is unwilling to go back to his country of origin either because we are concerned that country will torture the individual, or we are concerned that the country won’t adequately monitor or control the individual, leaving him free to ‘return to the battlefield’ (or perhaps, more accurately in many cases, go to the battlefield for the first time).”
“The fearmongers in Congress have created an atmosphere in which it is not politically feasible for the Obama Administration to release any detainees in the U.S. This is both unfair and unfortunate, because the single most significant thing the U.S. could do to encourage other countries to accept detainees is to accept a few for resettlement in the U.S.,” he said.
.
As 13 prisoners held at the U.S. naval Base at Guantanamo Bay, Cuba, appeared set to finally win their freedom, others are asking their release to be deferred.
The problem is that some of those cleared for release fear they will be tortured if they are transferred to other countries, in some cases their home countries.
Their lawyers have asked a federal court to delay their release from Guantanamo until their cases can be reviewed by the Supreme Court.
News of this latest twist in the long-running GITMO-release saga came as the government announced that 13 Uighurs – Turkic Muslims from China – have agreed to be transferred to Palau, a tiny island nation in the Pacific Ocean, some 500 miles (800 km) east of the Philippines.
For the 13, release will end years of imprisonment, abusive interrogations, and legal battles in both U.S. military and civilian courts.
The Uighurs cannot be repatriated to China because domestic American law proscribes deporting individuals to countries where they are likely to be abused.
The Bush administration conducted bilateral negotiations with a number of other countries to accept captives who had been cleared for release, but with limited success. These negotiations have continued under President Barack Obama.
The Uighurs were arrested in the “badlands” between Pakistan and Afghanistan in 2001, near where Osama bin Laden was believed to be hiding at the time, and had been trained to use automatic assault rifles.
The men were taken back to Afghanistan to a U.S. detention center in the city of Kandahar, interrogated for several months, and then flown to Guantanamo Bay.
Their cases were eventually heard by the U.S. military’s Combat Status Review Tribunals, which determined that they were not enemy combatants and posed no threat to the U.S.
Five of the Uighurs were released to Albania in 2006. One of the five subsequently was granted asylum in Sweden. In June of this year, the Obama administration negotiated the release of four additional Uighurs to Bermuda.
Meanwhile, in 2008, in a plea to a federal court for a writ of habeas corpus, lawyers for the remaining Uighurs challenged their continued detention. A federal judge ordered them released into the U.S., but that decision was reversed by an appeals court in February, 2009.
In April, lawyers for the Uighurs asked the Supreme Court to recognize that the right to habeas corpus requires a remedy when a court finds that an individual is wrongly detained. The petition asks for the Uighurs’ release.
"We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge's learned essay but something meaningful – their release," said Sabin Willett, of the Boston law firm of Bingham McCutchen, an attorney for the Uighurs.
In an effort to restore habeas petitions to their traditional status, a federal circuit court this week issued a one-line order in the Uighurs’ case (known as Kiyemba, et al., v. Obama, et al) giving the government sweeping authority — without “second-guessing” by the courts — to move detainees out of Guantanamo.
As a result, lawyers for the Uighurs are soon expected to file a second appeal to the Supreme Court. The key issue will be whether judges have any power to impose any controls on detainee transfers.
That is also a key issue for an Algerian national, Ahmed Belbacha, who has asked the Circuit Court to hold in abeyance his potential transfer to his home country, where he fears he will be tortured either by the government for past political activity, or by a terrorist organization he says has threatened him in the past.
His lawyer, Zachary Katznelson, senior counsel with Reprieve, the London-based legal charity, says his client describes his cell in Guantanamo as “like a grave.” He says, “Although it sounds crazy he would rather stay in those conditions than go back to Algeria.”
The 38-year-old Belbacha fled Algeria in 1999 at the height of the civil war between the Armed Islamic Group (GIA) and the Algerian Government. He and his family received death threats from the GIA, which killed thousands during the 1990s.
Belbacha fled to France and then to Britain, where he applied for asylum. He was given exceptional leave to remain pending the outcome of his application.
He says that in July 2001 he traveled to Pakistan to undertake religious study. While there he crossed the border into Afghanistan and, when the US-led invasion began, crossed back into Pakistan. He claims that in December 2001 he was apprehended by villagers near Peshawar, in northwest Pakistan, and sold to the authorities for a bounty.
American agents first sent him to a prison camp near Kandahar and then, in March 2002,to Guantanamo, where a military tribunal alleged that he had associated with the Taleban in Afghanistan and ruled that his detention was justified. But in February of this year, the U.S. said he was fit for release.
His lawyers say they are prepared to go to the Supreme Court to prevent his transfer.
According to Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized legal defenses for dozens of Guantanamo detainees, “This issue has come up in the context of the 60-odd detainees who have no safe home country to be returned to. The government is resisting bringing them into the U.S. by arguing that the courts have no power to order a detainee released into the United States even if the government has no legal right to hold him and can’t find a safe country to take him.”
He told us, “Paradoxically, that argument – which the government is making so it can avoid taking even a single detainee into the U.S. -- is standing in the way of finding other countries to take the majority of the detainees, as foreign governments ask themselves why they should take in Guantanamo’s refugees when the U.S. will not contribute to the effort.”
Uighers’ attorney, Sabin Willett, says the courts are making “a hash” of the habeas corpus tradition. He told us, “The remedy for indefinite detention by the executive jailer turns out to be to direct the executive jailer to enter into diplomacy with third parties beyond the court's jurisdiction to try to free the prisoner on whatever terms it chooses.”
Major David Frakt, a law professor at Washington State University, and formerly a lead defense counsel at the Office of Military Commissions, agrees.
He told us, “In most cases, either the detainee is unwilling to go back to his country of origin either because we are concerned that country will torture the individual, or we are concerned that the country won’t adequately monitor or control the individual, leaving him free to ‘return to the battlefield’ (or perhaps, more accurately in many cases, go to the battlefield for the first time).”
“The fearmongers in Congress have created an atmosphere in which it is not politically feasible for the Obama Administration to release any detainees in the U.S. This is both unfair and unfortunate, because the single most significant thing the U.S. could do to encourage other countries to accept detainees is to accept a few for resettlement in the U.S.,” he said.
.
Monday, September 07, 2009
El-Masri: Not Giving Up
By William Fisher
Thwarted by U.S. Courts, a German citizen who claims he was “rendered” by the U.S. and secretly detained and tortured for three months is taking his case to the Inter-American Commission on Human Rights.
The IACHR has accepted a petition filed by the American Civil Liberties Union (ACLU) on behalf of Khaled El-Masri. The U.S. government has two months to respond to allegations of kidnapping and torture which U.S. courts summarily rejected in 2007.
"The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program.
"The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date, the United States hasn't so much as acknowledged its involvement in El-Masri's extraordinary rendition."
In 2003, El-Masri, a German citizen, was kidnapped and flown to a CIA-run "black site" in Afghanistan, where he was secretly detained and tortured. Although his innocence was clear soon after his detention, the CIA continued to hold El-Masri for four months before flying him to Albania and abandoning him on a hillside in the dead of night. El-Masri has never been charged with a crime.
In 2005, the ACLU sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. Constitution and universal human rights laws.
In March 2007, a federal appeals court dismissed the lawsuit because of the government's assertion of the "state secrets" privilege. The U.S. Supreme Court let that decision stand when it refused to hear the case in October 2007.
"The United States, which has historically been a leader in ensuring access to justice for human rights violations around the world, has effectively closed the courtroom door to all victims of the Bush administration's torture regime," said Ben Wizner, staff attorney with the ACLU National Security Project.
"To date, not a single victim of torture by the U.S. has had his day in court. A review of Mr. El-Masri's case by the IACHR will shed much-needed light on the abuses perpetrated against him and will finally offer a victim of the U.S. torture and rendition program a venue in which his claims can be meaningfully addressed."
The Obama administration recently announced that it will continue to render individuals it suspects of involvement in terrorism to detention in other countries, but that it will monitor all cases to ensure that suspects are not mistreated. There is little difference between this policy and that of the previous administration. Neither stated what it would do if it found that “diplomatic assurances” were being violated.
"Any transfer of detainees in U.S. custody to other countries must fully comply with domestic and international human rights law," said Jennifer Turner, researcher with the ACLU Human Rights Program. "Examining the Bush administration rendition program and holding accountable those who broke the law will help to ensure that the same mistakes aren't repeated by the Obama administration."
The IACHR is an autonomous body created by mandate of the Organization of American States to promote and protect human rights in the Americas. The ACLU petition asks that the IACHR declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man; to find the U.S. responsible for violating El-Masri's rights under that declaration; and to recommend that the U.S. publicly acknowledge and apologize for its role in violating El-Masri's rights through forcible disappearance, arbitrary detention and torture.
The El-Masri case is beginning to attract almost as much media attention as perhaps the best-known rendition case: that of Maher Arar.
Arar, a dual Canadian-Syrian citizen, was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was held in solitary confinement in the U.S. for nearly two weeks, questioned, and denied meaningful access to a lawyer. The US government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture.
He was detained in Syria for almost a year, during which time he was tortured, according to the findings of a commission of inquiry established by Canada.
The commission concluded that Aar had been tortured. It publicly cleared Arar of any links to terrorism and gave him a $10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.
Despite the Canadian court ruling, the U.S. government has not exonerated Arar. It has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist, though former Secretary of State Condoleezza Rice acknowledged in testimony to Congress that the Arar affair was “not handled very well.” As of February 2009, Arar and his family remain on the U.S. “no-fly” watchlist.
His U.S. lawyers at the Center for Constitutional Rights (CCR) continue to pursue his case, Arar v. Ashcroft, which seeks compensatory damages on Arar’s behalf and also a declaration that the actions of the U.S. government were illegal and violated his constitutional, civil, and international human rights.
Thwarted by U.S. Courts, a German citizen who claims he was “rendered” by the U.S. and secretly detained and tortured for three months is taking his case to the Inter-American Commission on Human Rights.
The IACHR has accepted a petition filed by the American Civil Liberties Union (ACLU) on behalf of Khaled El-Masri. The U.S. government has two months to respond to allegations of kidnapping and torture which U.S. courts summarily rejected in 2007.
"The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program.
"The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date, the United States hasn't so much as acknowledged its involvement in El-Masri's extraordinary rendition."
In 2003, El-Masri, a German citizen, was kidnapped and flown to a CIA-run "black site" in Afghanistan, where he was secretly detained and tortured. Although his innocence was clear soon after his detention, the CIA continued to hold El-Masri for four months before flying him to Albania and abandoning him on a hillside in the dead of night. El-Masri has never been charged with a crime.
In 2005, the ACLU sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. Constitution and universal human rights laws.
In March 2007, a federal appeals court dismissed the lawsuit because of the government's assertion of the "state secrets" privilege. The U.S. Supreme Court let that decision stand when it refused to hear the case in October 2007.
"The United States, which has historically been a leader in ensuring access to justice for human rights violations around the world, has effectively closed the courtroom door to all victims of the Bush administration's torture regime," said Ben Wizner, staff attorney with the ACLU National Security Project.
"To date, not a single victim of torture by the U.S. has had his day in court. A review of Mr. El-Masri's case by the IACHR will shed much-needed light on the abuses perpetrated against him and will finally offer a victim of the U.S. torture and rendition program a venue in which his claims can be meaningfully addressed."
The Obama administration recently announced that it will continue to render individuals it suspects of involvement in terrorism to detention in other countries, but that it will monitor all cases to ensure that suspects are not mistreated. There is little difference between this policy and that of the previous administration. Neither stated what it would do if it found that “diplomatic assurances” were being violated.
"Any transfer of detainees in U.S. custody to other countries must fully comply with domestic and international human rights law," said Jennifer Turner, researcher with the ACLU Human Rights Program. "Examining the Bush administration rendition program and holding accountable those who broke the law will help to ensure that the same mistakes aren't repeated by the Obama administration."
The IACHR is an autonomous body created by mandate of the Organization of American States to promote and protect human rights in the Americas. The ACLU petition asks that the IACHR declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man; to find the U.S. responsible for violating El-Masri's rights under that declaration; and to recommend that the U.S. publicly acknowledge and apologize for its role in violating El-Masri's rights through forcible disappearance, arbitrary detention and torture.
The El-Masri case is beginning to attract almost as much media attention as perhaps the best-known rendition case: that of Maher Arar.
Arar, a dual Canadian-Syrian citizen, was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was held in solitary confinement in the U.S. for nearly two weeks, questioned, and denied meaningful access to a lawyer. The US government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture.
He was detained in Syria for almost a year, during which time he was tortured, according to the findings of a commission of inquiry established by Canada.
The commission concluded that Aar had been tortured. It publicly cleared Arar of any links to terrorism and gave him a $10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.
Despite the Canadian court ruling, the U.S. government has not exonerated Arar. It has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist, though former Secretary of State Condoleezza Rice acknowledged in testimony to Congress that the Arar affair was “not handled very well.” As of February 2009, Arar and his family remain on the U.S. “no-fly” watchlist.
His U.S. lawyers at the Center for Constitutional Rights (CCR) continue to pursue his case, Arar v. Ashcroft, which seeks compensatory damages on Arar’s behalf and also a declaration that the actions of the U.S. government were illegal and violated his constitutional, civil, and international human rights.
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