By William Fisher
My friends will probably be surprised to hear me say, “I’m a really lucky guy. I’m happy!” They’ll think I’ve developed a marshmallow brain.
Well, maybe so. But here it is: “I’m a really lucky guy!” And happy about it!
And the source of these newfound feelgoods? No, I didn’t win the lottery. And, no, I didn’t win a Pulitzer either.
So why?
I wake up at five every morning and read six or seven papers online. And they are always full of depressing stuff. Serial killers. Child rapists. Parents murdering their children. Unmanned drones dropping bombs on innocent villagers. Demagogic rants from people too stupid or too craven to get elected to Congress, but elected anyway (by us). Health care prescriptions from folks not shamed by the idea of making a profit off someone else’s poor health. And authoritative nostrums for mending all our foreign policy ailments from fulltime professional critics who never had the responsibility of mending anything.
So this makes me happy?
No. The thing that makes me happy is that I am able to read six or seven newspapers. I’m happy that these newspapers – or, these days, blogs – give people with whom I may disagree profoundly a platform from which to broadcast their ideas. And I’m happy that in the country I live in there’s no government censor, no invisible hand guiding me toward safe self-censorship, and no knock at the door at two in the morning.
The Gestapo didn’t come to deliver your milk. Neither did the Stasi. Or the KGB. Or the apparatchiks of the Middle East despots we continue to fawn over and look the other way because they still have the black gold we need to run our country.
How easy it is for us Americans to forget that in most of the rest of the world those who scribble their way to a living aren’t so lucky. The world’s jails are full of men and women who never dreamed it could be a crime to voice an opinion, no matter how controversial. Or others who knew all too well that there might be a price to be paid, but voiced the opinion anyway.
So this morning I read that Omid Mir Sayafi, a 29-year-old blogger who had been jailed for 30 months for insulting Iran’s ruling clerics, died in Tehran's main prison. The International Campaign for Human Rights in Iran, which advocates for activists in the country, reports that Sayafi suffered from severe depression and had taken extra doses of medication. The group blames Iran's government for unsafe conditions in its prisons.
Then I read that the Committee to Protect Journalists is calling on the Iranian authorities to release the many journalists detained in the aftermath of the disputed presidential election and to lift the onerous press restrictions that are choking information at a time when the country and the world most need it.
Then authorities instruct the BBC's bureau chief to leave the country. The signals of the BBC and U.S.-government backed radio and televisions stations remain jammed. The government shuts the Tehran offices of a major Arab satellite station -- the Dubai-based satellite channel Al-Arabiya – indefinitely. Newspaper censorship is widespread, an Iranian journalism group says..
But the repression is not limited to Iran. It’s happening wherever journalists feel constrained to speak the truth. In the Middle East, the jails of Egypt and many other countries with authoritarian regimes are filled with journalists and bloggers who strayed off the government-dictated path. And it’s not just Egypt; Saudi Arabia has one of the most extensive – and expensive technological systems for selectively blocking Internet access, perhaps second only to the setup in China, which is among the world’s major Internet censors. And in Russia, outspoken journalists just get murdered.
But I confess to being drawn toward the outrages in Egypt, because I used to live and work there. I am struck by the blogger who is sentenced to a four-year jail sentence for calling President Hosni Mubarak a “symbol of dictatorship,” and Al-Azhar University a “university of terror.”
“If we let people like him off without punishment, a wildfire will blaze up that consumes everything in its path,” prosecutor Mohammed Dawud warns. He adds, ”Exactly that is what civil rights activists dream of, many of whom pin their hopes on a grass-roots digital democratization initiated by the country’s bloggers.”
And in Alexandria, blogger Abdel Karim Nabil Suleiman is taken from his home and detained by State Security agents, Bloggers who visited his family report that the family believes Abdel Karim’s political opinions and writings for several outlets, including Copts United, are behind the arrest. Suleiman is a 21-year-old law student at al-Azhar University
(Al-Azhar University is the center of Arabic literature and Sunni Islamic learning in the world and the world's second oldest surviving degree granting university. Its mission includes the propagation of Islamic religion and culture and its Islamic scholars (ulemas) render edicts (fatwas) on disputes submitted to them from all over the Sunni Islamic world regarding proper conduct for Muslim individuals or societies. Al-Azhar also trains Egyptian government appointed preachers in proselytization (da'wa).)
Exactly three years ago, the newly-elected president of the Union of Egyptian Journalists proclaimed that President Hosni Mubarak had promised to abolish prison sentences for journalists in connection with their work. Three years later, nothing has changed.
Despite all the recent rhetoric to the contrary, thirty-five offences, including defamation and insulting President Mubarak or a foreign head of state, continue to be punishable by imprisonment. The ceiling for certain fines has been doubled. In cases of very large fines, journalists can be imprisoned as debtors if they are not in a position to pay the fine immediately.
Prominent journalists are currently being prosecuted for articles they have written and are facing imprisonment. They have been sentenced to a year in prison and fines of 10,000 Egyptian pounds (1,400 euros) for insulting President Mubarak.
Egyptian journalists working for foreign news media have also not been spared. An Al-Jazeera reporter was prosecuted on a charge of “endangering the national interest and the country’s reputation” in connection with a documentary she was making about torture in Egyptian prisons.
Nor has much changed elsewhere in the world’s truth-repression zones. There is no Get Out of Jail Free card for journalists – citizen and otherwise – who happen to have been born in one of these zones. And, sadly to say, they are increasing.
We are not in such a zone. Our newspaper industry may be disappearing, but we’re in the process of reinventing the information business. And ranting and raving – misinformation, disinformation -- is simply a part of that process. Exasperating as that may be!
OK, I acknowledge that I would be happier if those I disagree with at least expressed themselves rationally. And, yes, maybe I could live without the Glenn Becks and Michele Bachmanns of the world.
But, then, where would I go for belly laughs?
Well, I guess there’s always Rush Limbaugh.
But I’m happy enough just knowing I’m one of the lucky ones who doesn’t have to worry about the door knock at 2 A.M. And happy Glenn Beck doesn’t have to worry either.
Friday, November 06, 2009
Is a Re-Do of Post-9/11 Paranoia the Best We Can Do?
By William Fisher
The USA Patriot Act, rushed into law by a panicky U.S. Congress in the aftermath of the terrorist attacks of September 11, 2001, gave law enforcement sweeping new powers, including broad surveillance powers to spy on innocent Americans. But it also stipulated that three of its more controversial provisions should expire at the end of next month unless reapproved by lawmakers.
And it appears that reapproval may be about to happen – evidently with a green light from the Obama Administration and over strong objections from human rights and civil liberties groups.
Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the Committee’s deliberations.
“The Senate Judiciary Committee had the opportunity to pass legislation
to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed -- approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act,” said the American Civil Liberties Union.
The Committee’s actions were driven by “short-term and political considerations,” Chip Pitts, president of the Bill of Rights Defense Committee, told us. The Committee ignored “the need for a more sensible long-term, reasoned, rule-of-law approach,” he said.
Now, civil libertarians are looking to the House of Representatives, where the Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.
A number of parts of the law are due to expire at the end of next month. These are:
Section 213, which expands the government's ability to execute criminal search warrants (which need not involve terrorism) and seize property without telling the target for weeks or months.
The so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.
Section 215, which allows the FBI to seize a vast array of sensitive personal information and belongings – including medical, library and business records – using secret intelligence tools that do not require individual criminal activity. Although the records can only be seized pursuant to a court order, judges are compelled to issue these orders, making such judicial review nothing more than a rubber stamp. Sec. 215 Allows the FBI to use FISA court orders to seize any "tangible thing," including highly sensitive medical, library, business and travel records, from a wide variety of institutions under an extremely weak standard of judicial review. The Section allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation.
Section 505, which lowers the evidentiary standard for "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department, impose a blanket gag order on recipients and are not subject to judicial review. NSLs can be used to seize a wide variety of business and financial records, and in certain instances could be used to access the membership lists of organizations that provide even very limited Internet services (message boards on the ACLU's website for instance). Sec. 505 authorizes the government to seize financial, Internet, credit and telephone records without prior judicial review and without articulable suspicion that the target is a terrorist or spy.
The “roving wiretap” provision, which allows the government to tap phones and other electronic devices used by any person suspected of involvement in terrorism; a roving wiretap follows the target of the surveillance from telephone to telephone. Because there is a greater potential for abuse using roving wiretaps compared to traditional wiretaps, which apply to a single telephone, Congress insisted on important privacy safeguards when, prior to the Patriot Act, it first approved this “updated” surveillance power for criminal investigations.
Also being debated is the so-called “Material Support” Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.
The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 has also became part of the debate. Passed last summer, Congress amended the FISA law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and e-mails. Section 206 of the Patriot Act created roving wiretaps in Foreign Intelligence Surveillance Act (FISA) investigations. Section 206 erodes the basic constitutional rule of particularization by allow the government to obtain “roving wiretaps” without empowering the court to make sure that the government ascertain that the conversations being intercepted actually involve a target of the investigation. Section 206 also created “John Doe” roving wiretaps – wiretaps that need not specify a target or a device such as a telephone.
Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.
Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the “lone wolf” provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.
However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL. In the second, the government would have to notify suspects of “sneak and peek” searches within seven days instead of the 30 days currently required by the statute. “Sneak and peek” searches allow the government to search a home without notifying the resident immediately.
Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties. Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.
Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used "lone wolf" surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.
However, the proposed new legislation leaves intact the Patriot Act's so-called "material support" provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.
The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the Committee chairman, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.
Asked to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them -- was undoubtedly a huge if lamentable factor.”
He also cited the recent arrests of Najibullah Zazi and others, noting that Leahy said that in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”
Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.
“In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach, ” Pitts told us, adding,
“In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror (and avoid being accused of being ‘soft on terror’) brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed. Even nominal and sometimes actual civil liberties advocates have become more used to the ‘new normal’, seemingly forgetting the less visible but vital benefits of the liberties themselves – including for genuine and effective security, let alone for successful, prosperous, creative, dynamic open societies as opposed to closed societies like the former East Germany that used such approaches to their detriment.”
“The persistent myths and claims that the Patriot Act hasn’t been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11,” Pitts told us.
Now, all eyes are turning to the House of Representatives, where debate has already begun in the Judiciary Committee.
Congressmen Conyers, Nadler and Scott have introduced the USA PATRIOT Amendments Act of 2009, which reforms a number of Patriot Act provisions. The bill reins in the government’s spying powers and would protect the privacy of records. H.R. 3845 amends the national security letter (NSL) authority so that the government can only access communications, financial and credit records when they pertain to a terror suspect or spy. Under the original Patriot Act, the government can collect the records of innocent people whenever it deems them “relevant” to an investigation – without any oversight by an impartial court. The current standard is so low that independent audits found that approximately 50,000 are issued every year and many are issued against people two or three times removed from an actual suspect.
The Conyers-Nadler-Scott bill amends the Patriot Act’s “roving John Doe” authority to protect the privacy of communications. That authority currently permits wiretap orders even without identifying either the person or the place to be tapped. The new bill would require the government to name either the person or the place.
The Patriot Act made it easier for the government to secretly conduct searches without giving prior notice by authorizing “sneak and peek” searches whenever notice would jeopardize an investigation. H.R. 3845 seeks to protect the privacy of homes and businesses by reining in this authority by removing this broad catch-all, but permits government officials to continue secret searches in emergency or urgent circumstances.
The USA PATRIOT Amendments Act requires that gag orders that come with national security letters or section 215 orders meet traditional First Amendment standards. If a recipient of one of these requests wishes to speak out about the government’s actions, the burden will be on the government to convince a court that national security will be jeopardized if the recipient is not gagged.
But the recent indictment of a suspected New York City terrorist is already being used to stir up paranoia on the Hill. Rep. Peter King, a right-wing New York Republican who is set to challenge Sen. Kirsten Gillibrand’s senate seat in 2010, is a prime example. He says the arrest of Najibullah Zazi proves that lawmakers must renew the Patriot Act permanently.
The FBI arrested Najibullah Zazi this month after investigators collected sufficient evidence proving he was conspiring to create and use weapons of mass destruction on U.S. soil.
But King believes that Zazi's capture and indictment would not have been possible without the Patriot Act.
"All the layers of defense President Bush set up after September 11 are working. The FBI is working more closely with local police, the Patriot Act, which allows roving wiretaps... is essential," King told Fox News. "We have to have this, it's absolutely essential."
Chief among many lawmakers' complaints is that the Patriot Act undercuts privacy and threatens personal freedoms. But Republicans in particular have dismissed those criticisms, asserting the set of statutes has been indispensable in helping law enforcement agencies prevent future terrorist attacks.
As the Patriot Act approaches its sunset date, the Obama administration has signaled its interest in preserving key aspects of law -- including its provisions on the Foreign Intelligence Surveillance Court, the panel that grants federal officials the ability to conduct "roving wiretaps" on suspect terrorists. But Obama is likely to face staunch Democratic opposition to that effort, even as he promises his party members new Patriot Act provisions designed specifically to safeguard Americans' privacy rights.
While that legislative battle heats up, King on Monday reiterated the law in its original form was integral to the country's counter-terrorism strategy.
"That's why we need all these layers, all these tools," King said. "There's no silver bullet here."
Another powerful representative in Congress, Jim Sensenbrenner, wants to make the Patriot Act permanent in almost all respects. Sensenbrenner's measure would leave the hotly debated law largely intact. It also would repeal the law's "sunset" provisions, under which some of its search and surveillance powers are to expire at the end of this year.
But the bill introduced Monday contains no such sunsets and is in keeping with recent comments by Sensenbrenner that he believes the Patriot Act is not overbroad and has not been abused. It also reflects the Bush's administration's desire to make the act fully permanent.
Polling asking whether the Patriot Act should be made permanent produced the following results: No 58%, Yes 26%, Some but not all 14%.
Meanwhile, the House gave itself some breathing room by extending the expiring provisions of the PATRIOT Act until March 10th. This legislation, H.R. 4659, ensures this vital antiterrorism law does not expire and gives the Senate more time to consider the House-Senate conference report that the House passed in December with the support of 44 Democrats and nearly all Republicans. The Senate is expected to pass this legislation this week.
Meanwhile, the ACLU has written to members of the House committees urging them to rein in what it sees as the overbroad provision of the original Patriot Act.
Their letter said, “Congress rightly put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine the extraordinary powers when cooler heads would prevail.”
Whether there are cooler heads in Congress remains to be seen.
The USA Patriot Act, rushed into law by a panicky U.S. Congress in the aftermath of the terrorist attacks of September 11, 2001, gave law enforcement sweeping new powers, including broad surveillance powers to spy on innocent Americans. But it also stipulated that three of its more controversial provisions should expire at the end of next month unless reapproved by lawmakers.
And it appears that reapproval may be about to happen – evidently with a green light from the Obama Administration and over strong objections from human rights and civil liberties groups.
Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the Committee’s deliberations.
“The Senate Judiciary Committee had the opportunity to pass legislation
to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed -- approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act,” said the American Civil Liberties Union.
The Committee’s actions were driven by “short-term and political considerations,” Chip Pitts, president of the Bill of Rights Defense Committee, told us. The Committee ignored “the need for a more sensible long-term, reasoned, rule-of-law approach,” he said.
Now, civil libertarians are looking to the House of Representatives, where the Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.
A number of parts of the law are due to expire at the end of next month. These are:
Section 213, which expands the government's ability to execute criminal search warrants (which need not involve terrorism) and seize property without telling the target for weeks or months.
The so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.
Section 215, which allows the FBI to seize a vast array of sensitive personal information and belongings – including medical, library and business records – using secret intelligence tools that do not require individual criminal activity. Although the records can only be seized pursuant to a court order, judges are compelled to issue these orders, making such judicial review nothing more than a rubber stamp. Sec. 215 Allows the FBI to use FISA court orders to seize any "tangible thing," including highly sensitive medical, library, business and travel records, from a wide variety of institutions under an extremely weak standard of judicial review. The Section allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation.
Section 505, which lowers the evidentiary standard for "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department, impose a blanket gag order on recipients and are not subject to judicial review. NSLs can be used to seize a wide variety of business and financial records, and in certain instances could be used to access the membership lists of organizations that provide even very limited Internet services (message boards on the ACLU's website for instance). Sec. 505 authorizes the government to seize financial, Internet, credit and telephone records without prior judicial review and without articulable suspicion that the target is a terrorist or spy.
The “roving wiretap” provision, which allows the government to tap phones and other electronic devices used by any person suspected of involvement in terrorism; a roving wiretap follows the target of the surveillance from telephone to telephone. Because there is a greater potential for abuse using roving wiretaps compared to traditional wiretaps, which apply to a single telephone, Congress insisted on important privacy safeguards when, prior to the Patriot Act, it first approved this “updated” surveillance power for criminal investigations.
Also being debated is the so-called “Material Support” Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.
The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 has also became part of the debate. Passed last summer, Congress amended the FISA law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and e-mails. Section 206 of the Patriot Act created roving wiretaps in Foreign Intelligence Surveillance Act (FISA) investigations. Section 206 erodes the basic constitutional rule of particularization by allow the government to obtain “roving wiretaps” without empowering the court to make sure that the government ascertain that the conversations being intercepted actually involve a target of the investigation. Section 206 also created “John Doe” roving wiretaps – wiretaps that need not specify a target or a device such as a telephone.
Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.
Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the “lone wolf” provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.
However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL. In the second, the government would have to notify suspects of “sneak and peek” searches within seven days instead of the 30 days currently required by the statute. “Sneak and peek” searches allow the government to search a home without notifying the resident immediately.
Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties. Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.
Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used "lone wolf" surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.
However, the proposed new legislation leaves intact the Patriot Act's so-called "material support" provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.
The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the Committee chairman, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.
Asked to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them -- was undoubtedly a huge if lamentable factor.”
He also cited the recent arrests of Najibullah Zazi and others, noting that Leahy said that in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”
Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.
“In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach, ” Pitts told us, adding,
“In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror (and avoid being accused of being ‘soft on terror’) brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed. Even nominal and sometimes actual civil liberties advocates have become more used to the ‘new normal’, seemingly forgetting the less visible but vital benefits of the liberties themselves – including for genuine and effective security, let alone for successful, prosperous, creative, dynamic open societies as opposed to closed societies like the former East Germany that used such approaches to their detriment.”
“The persistent myths and claims that the Patriot Act hasn’t been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11,” Pitts told us.
Now, all eyes are turning to the House of Representatives, where debate has already begun in the Judiciary Committee.
Congressmen Conyers, Nadler and Scott have introduced the USA PATRIOT Amendments Act of 2009, which reforms a number of Patriot Act provisions. The bill reins in the government’s spying powers and would protect the privacy of records. H.R. 3845 amends the national security letter (NSL) authority so that the government can only access communications, financial and credit records when they pertain to a terror suspect or spy. Under the original Patriot Act, the government can collect the records of innocent people whenever it deems them “relevant” to an investigation – without any oversight by an impartial court. The current standard is so low that independent audits found that approximately 50,000 are issued every year and many are issued against people two or three times removed from an actual suspect.
The Conyers-Nadler-Scott bill amends the Patriot Act’s “roving John Doe” authority to protect the privacy of communications. That authority currently permits wiretap orders even without identifying either the person or the place to be tapped. The new bill would require the government to name either the person or the place.
The Patriot Act made it easier for the government to secretly conduct searches without giving prior notice by authorizing “sneak and peek” searches whenever notice would jeopardize an investigation. H.R. 3845 seeks to protect the privacy of homes and businesses by reining in this authority by removing this broad catch-all, but permits government officials to continue secret searches in emergency or urgent circumstances.
The USA PATRIOT Amendments Act requires that gag orders that come with national security letters or section 215 orders meet traditional First Amendment standards. If a recipient of one of these requests wishes to speak out about the government’s actions, the burden will be on the government to convince a court that national security will be jeopardized if the recipient is not gagged.
But the recent indictment of a suspected New York City terrorist is already being used to stir up paranoia on the Hill. Rep. Peter King, a right-wing New York Republican who is set to challenge Sen. Kirsten Gillibrand’s senate seat in 2010, is a prime example. He says the arrest of Najibullah Zazi proves that lawmakers must renew the Patriot Act permanently.
The FBI arrested Najibullah Zazi this month after investigators collected sufficient evidence proving he was conspiring to create and use weapons of mass destruction on U.S. soil.
But King believes that Zazi's capture and indictment would not have been possible without the Patriot Act.
"All the layers of defense President Bush set up after September 11 are working. The FBI is working more closely with local police, the Patriot Act, which allows roving wiretaps... is essential," King told Fox News. "We have to have this, it's absolutely essential."
Chief among many lawmakers' complaints is that the Patriot Act undercuts privacy and threatens personal freedoms. But Republicans in particular have dismissed those criticisms, asserting the set of statutes has been indispensable in helping law enforcement agencies prevent future terrorist attacks.
As the Patriot Act approaches its sunset date, the Obama administration has signaled its interest in preserving key aspects of law -- including its provisions on the Foreign Intelligence Surveillance Court, the panel that grants federal officials the ability to conduct "roving wiretaps" on suspect terrorists. But Obama is likely to face staunch Democratic opposition to that effort, even as he promises his party members new Patriot Act provisions designed specifically to safeguard Americans' privacy rights.
While that legislative battle heats up, King on Monday reiterated the law in its original form was integral to the country's counter-terrorism strategy.
"That's why we need all these layers, all these tools," King said. "There's no silver bullet here."
Another powerful representative in Congress, Jim Sensenbrenner, wants to make the Patriot Act permanent in almost all respects. Sensenbrenner's measure would leave the hotly debated law largely intact. It also would repeal the law's "sunset" provisions, under which some of its search and surveillance powers are to expire at the end of this year.
But the bill introduced Monday contains no such sunsets and is in keeping with recent comments by Sensenbrenner that he believes the Patriot Act is not overbroad and has not been abused. It also reflects the Bush's administration's desire to make the act fully permanent.
Polling asking whether the Patriot Act should be made permanent produced the following results: No 58%, Yes 26%, Some but not all 14%.
Meanwhile, the House gave itself some breathing room by extending the expiring provisions of the PATRIOT Act until March 10th. This legislation, H.R. 4659, ensures this vital antiterrorism law does not expire and gives the Senate more time to consider the House-Senate conference report that the House passed in December with the support of 44 Democrats and nearly all Republicans. The Senate is expected to pass this legislation this week.
Meanwhile, the ACLU has written to members of the House committees urging them to rein in what it sees as the overbroad provision of the original Patriot Act.
Their letter said, “Congress rightly put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine the extraordinary powers when cooler heads would prevail.”
Whether there are cooler heads in Congress remains to be seen.
Thursday, November 05, 2009
Wouldn’t It be Easier Just to Apologize?
By William Fisher
A few years back, the FBI mistakenly linked an American lawyer’s fingerprint to one found near the scene of a horrific terrorist bombing in Madrid, Spain. In the tragedy of errors that followed, the lawyer was jailed in Oregon as a “material witness” for two weeks.
And what did the FBI do? It apologized. That doesn’t happen very often, but it did happen this time. The FBI admitted a blunder that had led to Brandon Mayfield’s unlawful imprisonment.
“The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused,” the bureau said in a statement, adding that the agency also said it would review its practices on fingerprint analyses.
Mayfield, a 37-year-old convert to Islam, sharply criticized the government, calling his time behind bars “humiliating” and “embarrassing” and saying he was targeted because of his faith.
“This whole process has been a harrowing ordeal. It shouldn’t happen to anybody,” said Mayfield. “I believe I was singled out and discriminated against, I feel, as a Muslim.”
And maybe that’s what should have happened long before Maher Arar’s case ended up before a Federal Appeals Court. Consider how much money would have been saved by the government and by Arar’s legal team, and think about how such an action by the government would have undoubtedly ceded the U.S. the moral high ground it desperately needs to regain.
Just to refresh your memory: Maher Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. He was held by U.S. authorities incommunicado – no lawyer, no contact with family, no nothing. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.
How do we know what the outcome would have been if the U.S. had taken the Canadian road? We know because that’s the road the Canadian Government took. It decided to find out the details of what happened. It impaneled a high-level commission, which spent two years painstakingly sifting through the information that led to Arar’s unlawful arrest, unlawful detention, and unlawful “extraordinary rendition.” It admitted that its people had passed erroneous information to the Americans that led to this travesty in the first place.
Heads rolled. Senior officials were forced to resign. But the Canadian intelligence services didn’t implode. Their sources and methods were never revealed.
And after its exhaustive two-year public inquiry, which found that Arar had no connection to terrorism, the Canadian Government apologized to Arar for Canada’s role in his rendition, and awarded him a multi-million-dollar settlement.
Could there have been a sharper contrast between the two governments’ responses to their mistakes? The Canadians fessed up to a mistake. And with that admission, their credibility catapulted off the charts.
The U.S. Government, on the contrary, has fiercely fought off inquiry of any kind. It has used every tool in its legal back-back to refuse to hold anyone accountable for ruining the life of an innocent man. And, in so doing it has perfectly positioned a large dark cloud over its head.
Inscribed on that cloud? Secret government. Not credible government. Not to be believed government.
We might have harbored a smidgen of hope for better things from our government on the occasion of two Congressional hearings on the Arar case in 2007. On October 18, 2007, Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time he testified before any U.S. governmental body – individual members of Congress publicly apologized to him. But the government stopped well short of any kind of formal apology. The following week, on October 24, then Secretary of State Condoleezza Rice acknowledged during a House Foreign Affairs Committee Hearing that the U.S. government had mishandled his case.
Mishandled his case? Tone-deaf statement of the Year!
BTW, Arar’s Congressional testimony was via video because Arar was on the “no fly” list of the Department of Homeland Security. And he remains on the list today.
But a lot of us were at least a bit more hopeful when we heard our new president usher in a new era of transparency in government. Not that we were under a bunch of naïve illusions that Obama would let our intelligence sources and methods spill out in plain sight. That’s OK for Code Pink.
No, most of us progressives are grown-up enough to appreciate that countries need to have secrets and that sometimes these secrets have to stay that way.
But perhaps we were naïve and full of wishful “Yes We Can” thinking if we thought our society and our government would become more open, more inclined to reconciliation, and less litigious any time soon.
The bottom line is that, as a result of years of government obfuscation, judicial sandbagging and bureaucratic red tape, a case that could have been settled with a pretty straightforward apology and modest compensation found itself inexorably headed for protracted arguments involving some of our smartest lawyers doing their thing before some of our smartest judges in the most powerful courts in our country.
Huzzah! We Americans seem to love nothing more than seeing a bunch of legal gladiators engaged in pitched battle in much the way the Romans did in the Forum. Conjures up images of Gregory Peck as Atticus Finch. Or Spencer Tracy and Frederick March duking it out as Clarence Darrow and Williams Jennings Bryan.
And we weren’t disappointed. Words flew. Milllions of them. From lawyers on both sides. From Friends of the Court, who joined in the fun, adding millions more words. The case bounced up and down the judicial ladder from disrict court to a three-judge panel in the circuit court of appeals, back to the district court for yet another full-throated advocacy joust before an 11-judge en banc court.
All this took seven years and cost millions of taxpayer and private dollars.
And what did anyone get in the end?
An appeals court decision that left enough people so unhappy and unsatisfied that the Supreme Court has to be the next step in climbing this Himalayan obstacle course.
What did the Appeals Court decision tell us?
The court concluded that the case brought by Mahar Arar against Bush-era Attorney General John Ashcroft and other officials raised too many sensitive foreign policy and secrecy issues to permit relief. The decision leaves the federal officials involved free of any legal accountability for their actions.
In a 7-4 decision, the Court wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
But Arar’s attorney, David Cole, took a decidedly different view as he indicated that yesterday’s decision would be appealed to the Supreme Court.
He told us, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”
Cole added, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”
Yesterday’s majority opinion cited previous cases in which the practice of rendition was found to be lawful. It noted that “the renditions of suspected terrorists Ramzi Yousef and Mir Aimal Kansi to the United States and the rendition of Illich Ramirez Sanchez, also known as ‘Carlos the Jackal’, by French authorities from the Sudan to France,” had been upheld by the European Commission on Human Rights.
“For decades,” the Court wrote, the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”
It ruled, “Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that…it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges -- to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition…Not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”
Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
The Obama Administration has said that it would continue the practice of extraordinary rendition, but would seek diplomatic assurances that those it rendered to other countries would be not tortured. This was also the policy of previous U.S. administrations, dating from the administration of President Bill Clinton and including that of George W. Bush. However, such “diplomatic assurances” have been largely worthless, since the U.S. retains relatively little control over what happens inside a foreign prison once a person is turned over to another country.
In a statement issued through the Center for Constitutional Rights (CCR), which brought the suit on Arar’s behalf, Arar said, “After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.”
Now this is where I’m supposed to summon up all my cajones, put out my strongest arguments in my most intrepid voice, and convince one and all that there is only one wisdom – and I have it.
Instead, it seems more appropriate to end this polemic with another look at the wisdom of another:
“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.” – Maher Arar
A few years back, the FBI mistakenly linked an American lawyer’s fingerprint to one found near the scene of a horrific terrorist bombing in Madrid, Spain. In the tragedy of errors that followed, the lawyer was jailed in Oregon as a “material witness” for two weeks.
And what did the FBI do? It apologized. That doesn’t happen very often, but it did happen this time. The FBI admitted a blunder that had led to Brandon Mayfield’s unlawful imprisonment.
“The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused,” the bureau said in a statement, adding that the agency also said it would review its practices on fingerprint analyses.
Mayfield, a 37-year-old convert to Islam, sharply criticized the government, calling his time behind bars “humiliating” and “embarrassing” and saying he was targeted because of his faith.
“This whole process has been a harrowing ordeal. It shouldn’t happen to anybody,” said Mayfield. “I believe I was singled out and discriminated against, I feel, as a Muslim.”
And maybe that’s what should have happened long before Maher Arar’s case ended up before a Federal Appeals Court. Consider how much money would have been saved by the government and by Arar’s legal team, and think about how such an action by the government would have undoubtedly ceded the U.S. the moral high ground it desperately needs to regain.
Just to refresh your memory: Maher Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. He was held by U.S. authorities incommunicado – no lawyer, no contact with family, no nothing. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.
How do we know what the outcome would have been if the U.S. had taken the Canadian road? We know because that’s the road the Canadian Government took. It decided to find out the details of what happened. It impaneled a high-level commission, which spent two years painstakingly sifting through the information that led to Arar’s unlawful arrest, unlawful detention, and unlawful “extraordinary rendition.” It admitted that its people had passed erroneous information to the Americans that led to this travesty in the first place.
Heads rolled. Senior officials were forced to resign. But the Canadian intelligence services didn’t implode. Their sources and methods were never revealed.
And after its exhaustive two-year public inquiry, which found that Arar had no connection to terrorism, the Canadian Government apologized to Arar for Canada’s role in his rendition, and awarded him a multi-million-dollar settlement.
Could there have been a sharper contrast between the two governments’ responses to their mistakes? The Canadians fessed up to a mistake. And with that admission, their credibility catapulted off the charts.
The U.S. Government, on the contrary, has fiercely fought off inquiry of any kind. It has used every tool in its legal back-back to refuse to hold anyone accountable for ruining the life of an innocent man. And, in so doing it has perfectly positioned a large dark cloud over its head.
Inscribed on that cloud? Secret government. Not credible government. Not to be believed government.
We might have harbored a smidgen of hope for better things from our government on the occasion of two Congressional hearings on the Arar case in 2007. On October 18, 2007, Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time he testified before any U.S. governmental body – individual members of Congress publicly apologized to him. But the government stopped well short of any kind of formal apology. The following week, on October 24, then Secretary of State Condoleezza Rice acknowledged during a House Foreign Affairs Committee Hearing that the U.S. government had mishandled his case.
Mishandled his case? Tone-deaf statement of the Year!
BTW, Arar’s Congressional testimony was via video because Arar was on the “no fly” list of the Department of Homeland Security. And he remains on the list today.
But a lot of us were at least a bit more hopeful when we heard our new president usher in a new era of transparency in government. Not that we were under a bunch of naïve illusions that Obama would let our intelligence sources and methods spill out in plain sight. That’s OK for Code Pink.
No, most of us progressives are grown-up enough to appreciate that countries need to have secrets and that sometimes these secrets have to stay that way.
But perhaps we were naïve and full of wishful “Yes We Can” thinking if we thought our society and our government would become more open, more inclined to reconciliation, and less litigious any time soon.
The bottom line is that, as a result of years of government obfuscation, judicial sandbagging and bureaucratic red tape, a case that could have been settled with a pretty straightforward apology and modest compensation found itself inexorably headed for protracted arguments involving some of our smartest lawyers doing their thing before some of our smartest judges in the most powerful courts in our country.
Huzzah! We Americans seem to love nothing more than seeing a bunch of legal gladiators engaged in pitched battle in much the way the Romans did in the Forum. Conjures up images of Gregory Peck as Atticus Finch. Or Spencer Tracy and Frederick March duking it out as Clarence Darrow and Williams Jennings Bryan.
And we weren’t disappointed. Words flew. Milllions of them. From lawyers on both sides. From Friends of the Court, who joined in the fun, adding millions more words. The case bounced up and down the judicial ladder from disrict court to a three-judge panel in the circuit court of appeals, back to the district court for yet another full-throated advocacy joust before an 11-judge en banc court.
All this took seven years and cost millions of taxpayer and private dollars.
And what did anyone get in the end?
An appeals court decision that left enough people so unhappy and unsatisfied that the Supreme Court has to be the next step in climbing this Himalayan obstacle course.
What did the Appeals Court decision tell us?
The court concluded that the case brought by Mahar Arar against Bush-era Attorney General John Ashcroft and other officials raised too many sensitive foreign policy and secrecy issues to permit relief. The decision leaves the federal officials involved free of any legal accountability for their actions.
In a 7-4 decision, the Court wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
But Arar’s attorney, David Cole, took a decidedly different view as he indicated that yesterday’s decision would be appealed to the Supreme Court.
He told us, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”
Cole added, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”
Yesterday’s majority opinion cited previous cases in which the practice of rendition was found to be lawful. It noted that “the renditions of suspected terrorists Ramzi Yousef and Mir Aimal Kansi to the United States and the rendition of Illich Ramirez Sanchez, also known as ‘Carlos the Jackal’, by French authorities from the Sudan to France,” had been upheld by the European Commission on Human Rights.
“For decades,” the Court wrote, the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”
It ruled, “Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that…it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges -- to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition…Not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”
Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
The Obama Administration has said that it would continue the practice of extraordinary rendition, but would seek diplomatic assurances that those it rendered to other countries would be not tortured. This was also the policy of previous U.S. administrations, dating from the administration of President Bill Clinton and including that of George W. Bush. However, such “diplomatic assurances” have been largely worthless, since the U.S. retains relatively little control over what happens inside a foreign prison once a person is turned over to another country.
In a statement issued through the Center for Constitutional Rights (CCR), which brought the suit on Arar’s behalf, Arar said, “After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.”
Now this is where I’m supposed to summon up all my cajones, put out my strongest arguments in my most intrepid voice, and convince one and all that there is only one wisdom – and I have it.
Instead, it seems more appropriate to end this polemic with another look at the wisdom of another:
“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.” – Maher Arar
Wednesday, November 04, 2009
And Where Was A.G. Ashcroft? A.W.O.L.
By William Fisher
Bush-era Attorney General John Ashcroft had a busy day in court yesterday.
A Federal Appeals court ruled he could not be held responsible for kidnapping a Canadian citizen in New York and shipping him off to Syria where he was imprisoned for a year and tortured.
But, in another case, five men who had been living in New York and were ultimately deported won a $1.26 million settlement from the U.S. government in a suit accusing Ashcroft and other officials of racial profiling, illegal detention and abuse of Muslim, Arab and South Asian men in the days following the terrorist attacks of September 11th 2001.
Yasser Ebrahim, one of the men held at the Metropolitan Detention Center (MDC) in Brooklyn, NY after the post-9/11 sweeps and now living in Egypt, said: “We were deprived of our rights and abused simply because of our religion and the color of our skin. After seven long years, I am relieved to be able to try to rebuild my life. I know that I and others are still affected by what happened and that communities in the U.S. continue to feel the fallout. I sincerely hope this will never happen again.”
In the second case, a federal Court of Appeals in New York dismissed Canadian citizen Maher Arar’s suit against Ashcroft and other U.S. officials for their role in sending him to Syria to be tortured. The court concluded that Arar’s case raised too many sensitive foreign policy and secrecy issues to permit relief. It leaves the federal officials involved free of any legal accountability for what they did.
In a 7-4 decision, the Court wrote, ““If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.
Georgetown university law school professor David Cole, who argued the Arar case, told Truthout, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”
He indicated that the Arar case would be appealed to the Supreme Court.
The case against John Ashcroft and other Bush-era officials was filed in January 2004, just three months after he returned home to Canada from his ordeal. It was brought by the Center for Constitutional Rights (CCR), and was the first to challenge the government’s policy of “extraordinary rendition,” also known as “outsourcing torture.”
The Canadian government, after an exhaustive two-year public inquiry, found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar settlement.
The contrast between the two governments’ responses to their mistakes could not be more stark, say Mr. Arar’s attorneys. “Both the Executive and Judicial branches of the United States government have barred inquiry and refused to hold anyone accountable for ruining the life of an innocent man,” they said.
Two Congressional hearings in October 2007 dealt with his case. On October 18, 2007 Mr. Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time Mr. Arar testified before any U.S. governmental body – individual members of Congress publicly apologized to him, though the government still has not issued a formal apology. The next week, on October 24, Secretary of State Condoleezza Rice admitted during a House Foreign Affairs Committee Hearing that the U.S. government mishandled his case.
In a strongly worded dissent, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
The racial profiling case, known as Turkmen v. Ashcroft, was filed in September 2002 to challenge the arbitrary detention and mistreatment of immigration detainees by prison guards and high-level Bush administration officials in the wake of 9/11. With no evidence of any connection to terrorism, hundreds of Muslim, Arab and South Asian men were rounded up on the basis of racial and religious profiling and subjected to unlawful detention and abuse.
Among other documented abuses, many of the men had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.” The men were pushed against the t-shirt upon their entrance to MDC and told, “welcome to America.” The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.
All of the men were eventually deported, though several of the plaintiffs returned to New York under strict conditions to participate in depositions for their case against the government in early 2006.
“As with the Japanese internment, history will not look kindly upon the Ashcroft raids,” said CCR Attorney Rachel Meeropol. “This is just the first step, though. To ensure that this never happens again, the former Attorney General and his cronies – the architects of this policy – must also be held accountable.”
The suit named as defendants then-Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar and officials at the Metropolitan Detention Center in Brooklyn, where the plaintiffs were held.
Some of the abuse included beatings, repeated strip searches and sleep deprivation. The allegations of inhumane and degrading treatment have been substantiated by two reports of the Justice Department’s Office of the Inspector General, and several defendants in the case have recently been convicted on federal charges of beatings and cover-ups of other prisoners around the same time period.
Bush-era Attorney General John Ashcroft had a busy day in court yesterday.
A Federal Appeals court ruled he could not be held responsible for kidnapping a Canadian citizen in New York and shipping him off to Syria where he was imprisoned for a year and tortured.
But, in another case, five men who had been living in New York and were ultimately deported won a $1.26 million settlement from the U.S. government in a suit accusing Ashcroft and other officials of racial profiling, illegal detention and abuse of Muslim, Arab and South Asian men in the days following the terrorist attacks of September 11th 2001.
Yasser Ebrahim, one of the men held at the Metropolitan Detention Center (MDC) in Brooklyn, NY after the post-9/11 sweeps and now living in Egypt, said: “We were deprived of our rights and abused simply because of our religion and the color of our skin. After seven long years, I am relieved to be able to try to rebuild my life. I know that I and others are still affected by what happened and that communities in the U.S. continue to feel the fallout. I sincerely hope this will never happen again.”
In the second case, a federal Court of Appeals in New York dismissed Canadian citizen Maher Arar’s suit against Ashcroft and other U.S. officials for their role in sending him to Syria to be tortured. The court concluded that Arar’s case raised too many sensitive foreign policy and secrecy issues to permit relief. It leaves the federal officials involved free of any legal accountability for what they did.
In a 7-4 decision, the Court wrote, ““If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.
Georgetown university law school professor David Cole, who argued the Arar case, told Truthout, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”
He indicated that the Arar case would be appealed to the Supreme Court.
The case against John Ashcroft and other Bush-era officials was filed in January 2004, just three months after he returned home to Canada from his ordeal. It was brought by the Center for Constitutional Rights (CCR), and was the first to challenge the government’s policy of “extraordinary rendition,” also known as “outsourcing torture.”
The Canadian government, after an exhaustive two-year public inquiry, found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar settlement.
The contrast between the two governments’ responses to their mistakes could not be more stark, say Mr. Arar’s attorneys. “Both the Executive and Judicial branches of the United States government have barred inquiry and refused to hold anyone accountable for ruining the life of an innocent man,” they said.
Two Congressional hearings in October 2007 dealt with his case. On October 18, 2007 Mr. Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time Mr. Arar testified before any U.S. governmental body – individual members of Congress publicly apologized to him, though the government still has not issued a formal apology. The next week, on October 24, Secretary of State Condoleezza Rice admitted during a House Foreign Affairs Committee Hearing that the U.S. government mishandled his case.
In a strongly worded dissent, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
The racial profiling case, known as Turkmen v. Ashcroft, was filed in September 2002 to challenge the arbitrary detention and mistreatment of immigration detainees by prison guards and high-level Bush administration officials in the wake of 9/11. With no evidence of any connection to terrorism, hundreds of Muslim, Arab and South Asian men were rounded up on the basis of racial and religious profiling and subjected to unlawful detention and abuse.
Among other documented abuses, many of the men had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.” The men were pushed against the t-shirt upon their entrance to MDC and told, “welcome to America.” The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.
All of the men were eventually deported, though several of the plaintiffs returned to New York under strict conditions to participate in depositions for their case against the government in early 2006.
“As with the Japanese internment, history will not look kindly upon the Ashcroft raids,” said CCR Attorney Rachel Meeropol. “This is just the first step, though. To ensure that this never happens again, the former Attorney General and his cronies – the architects of this policy – must also be held accountable.”
The suit named as defendants then-Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar and officials at the Metropolitan Detention Center in Brooklyn, where the plaintiffs were held.
Some of the abuse included beatings, repeated strip searches and sleep deprivation. The allegations of inhumane and degrading treatment have been substantiated by two reports of the Justice Department’s Office of the Inspector General, and several defendants in the case have recently been convicted on federal charges of beatings and cover-ups of other prisoners around the same time period.
Monday, November 02, 2009
What Ever Happened to "Do No Harm'?
By William Fisher
The state board responsible for licensing – and disciplining -- psychologists in Louisiana is “fighting awfully hard to turn a blind eye to serious allegations of abuse” brought against one of its members, who is being accused of complicity in beatings, religious and sexual humiliation, rape threats and painful body positions during his service as a senior advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
That is the view expressed by Deborah Popowski, cooperating attorney with the Center for Constitutional Rights (CCR), part of the legal team representing Dr. Trudy Bond. Dr. Bond, an Ohio-based psychologist, is suing the Louisiana State Board of Examiners of Psychologists to compel it to investigate the behavior of Louisiana psychologist and retired U.S. Army colonel Dr. Larry C. James, a former high-ranking advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
“We wish the Board would devote its resources to investigating unethical conduct instead. Everyone, including the people of Louisiana, would be better served,” she told us.
The chairperson of the Board, Dr. Jillandra Rovaris, who also chairs the complaints committee, did not respond to telephone calls or emails seeking comment and clarification.
Popowski says that, according to Dr. James’ own statements, he played an influential role in both the policy and day-to-day operations of interrogations and detention at the prison camps. She claims that publicly-available information shows that “while Dr. James was at Guantanamo, abuse in interrogations was widespread, and cruel and inhuman treatment was official policy.”
In February 2008, Dr. Bond filed a complaint against Dr. James before the Board, the agency that issued and now regulates his psychology license. Dr. Bond alleged that Dr. James breached professional ethics by violating psychologists’ duties to do no harm, to protect confidential information and to obtain informed consent, and she called on the Board to investigate whether action should be taken against Dr. James.
Dr. Bond’s lawyers contend that the Board summarily refused to investigate her complaint, claiming that the statute of limitations had run, despite what they say is conclusive information to the contrary. Dr. Bond then filed suit against the Board in Louisiana’s 19th Judicial District Court, which in July 2009 dismissed her case without looking at the merits. Now, in a brief before the First Circuit Court in Baton Rouge, Dr. Bond argues that the District Court should have reviewed the Board’s “clearly wrong legal decision.”
Said Dr. Bond, “The five psychologists on the Louisiana Board were given plenty of credible evidence, but they chose not to investigate the head intelligence psychologist of prison camps notorious for their use of psychological torture. I don’t think Louisiana lawmakers intended to give five fellow professionals total, unchecked power to make arbitrary decisions that deeply affect the public welfare.”
Dr. Bond told us, “I began reading of the role of psychologists at detention sites such as Guantanamo and was horrified when the American Psychological Association, by way of the infamous PENS report in 2005, determined that the actions of the BSCT psychologists were ethical.”
She added, “In his biographical statement for the PENS report, Larry James stated that he was the ‘Chief Psychologist for the Joint Intelligence Group at GTMO, Cuba’ starting in January 2003. When the Camp Delta Standard Operating Procedure Manual (dated February, 2003 and implemented March 27, 2003) was released in November of 2007 and included behavioral management of prisoners that violated our psychological ethics codes, that same ethics code required that I report such violations to the licensing board to be investigated. My complaint to the Louisiana Board of Psychologists was dated 2/29/08.”
Allegations of abuse during Dr. James’s January to May 2003 deployment include beatings, religious and sexual humiliation, rape threats and painful body positions.
Canadian citizen Omar Khadr, who is still imprisoned in Guantanamo, is one of the prisoners who has alleged brutal treatment in the spring of 2003, when he was only 16 years old.
Khadr was captured by American forces at the age of 15 following a four-hour firefight with militants in the village of Ayub Kheyl, Afghanistan. He has spent seven years in the Guantanamo Bay detention camps charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.
A Canadian citizen born in Toronto, he is the youngest prisoner held in the Guantanamo Bay detention camp by the United States and has been frequently referred to as a child soldier. In April 2009, the Federal Court of Canada ruled that the Canadian Charter of Human Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court is expected to hear the case next month.
Dr. James was also stationed in Iraq’s Abu Ghraib prison in 2004 and returned to Guantanamo in 2007. In 2008, he was named Dean of the School of Professional Psychology at Wright State University in Dayton, Ohio.
The CCR says that, as Chief Psychologist of the Joint Intelligence Group and a senior member of the Behavioral Science Consultation Team (BSCT) at Guantanamo, Dr. James had access to the confidential medical records of people he was charged with exploiting for intelligence.
It adds that, according to former Guantanamo interrogators, BSCTs used information from patients’ records to help interrogators increase the patients’
psychological duress, including by exploiting their fears. The very purpose of these mental health professional teams, the interrogators said, was to help
“break” the prisoners. Dr. James denies that claim, but an extensive government paper trail supports the interrogators’ accounts, the organization contends.
The so-called “Biscuit Teams” have sparked controversy ever since their existence became public. The actions taken by team members have called into question the appropriate behavior for physicians, psychologists and other health care professionals who are team members.
The taken by the CCR is, “Despite their universally recognized duty to do no harm, doctors and psychologists have played a key role in the United States government’s policy of torture in its overseas prisons. Some have crafted and justified torture tactics, inflicted pain, overseen abuse and enabled and covered up cruel treatment.”
The group adds, “Freedom of Information Act litigation and a U.S. Senate Armed Services Committee (SASC) inquiry into the treatment of detainees have yielded shed light on the specific role of military intelligence psychologists and psychiatrists at the Guantánamo Bay detention center in Cuba. The names and licensing information of several individuals who may have been involved in prisoner abuse are publicly known. Yet, when presented with credible information that licensees within their jurisdiction may have committed gross breaches of ethics, state licensing boards have refused to take action. To date, not one health professional has been held accountable for their role in torture.”
The state board responsible for licensing – and disciplining -- psychologists in Louisiana is “fighting awfully hard to turn a blind eye to serious allegations of abuse” brought against one of its members, who is being accused of complicity in beatings, religious and sexual humiliation, rape threats and painful body positions during his service as a senior advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
That is the view expressed by Deborah Popowski, cooperating attorney with the Center for Constitutional Rights (CCR), part of the legal team representing Dr. Trudy Bond. Dr. Bond, an Ohio-based psychologist, is suing the Louisiana State Board of Examiners of Psychologists to compel it to investigate the behavior of Louisiana psychologist and retired U.S. Army colonel Dr. Larry C. James, a former high-ranking advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
“We wish the Board would devote its resources to investigating unethical conduct instead. Everyone, including the people of Louisiana, would be better served,” she told us.
The chairperson of the Board, Dr. Jillandra Rovaris, who also chairs the complaints committee, did not respond to telephone calls or emails seeking comment and clarification.
Popowski says that, according to Dr. James’ own statements, he played an influential role in both the policy and day-to-day operations of interrogations and detention at the prison camps. She claims that publicly-available information shows that “while Dr. James was at Guantanamo, abuse in interrogations was widespread, and cruel and inhuman treatment was official policy.”
In February 2008, Dr. Bond filed a complaint against Dr. James before the Board, the agency that issued and now regulates his psychology license. Dr. Bond alleged that Dr. James breached professional ethics by violating psychologists’ duties to do no harm, to protect confidential information and to obtain informed consent, and she called on the Board to investigate whether action should be taken against Dr. James.
Dr. Bond’s lawyers contend that the Board summarily refused to investigate her complaint, claiming that the statute of limitations had run, despite what they say is conclusive information to the contrary. Dr. Bond then filed suit against the Board in Louisiana’s 19th Judicial District Court, which in July 2009 dismissed her case without looking at the merits. Now, in a brief before the First Circuit Court in Baton Rouge, Dr. Bond argues that the District Court should have reviewed the Board’s “clearly wrong legal decision.”
Said Dr. Bond, “The five psychologists on the Louisiana Board were given plenty of credible evidence, but they chose not to investigate the head intelligence psychologist of prison camps notorious for their use of psychological torture. I don’t think Louisiana lawmakers intended to give five fellow professionals total, unchecked power to make arbitrary decisions that deeply affect the public welfare.”
Dr. Bond told us, “I began reading of the role of psychologists at detention sites such as Guantanamo and was horrified when the American Psychological Association, by way of the infamous PENS report in 2005, determined that the actions of the BSCT psychologists were ethical.”
She added, “In his biographical statement for the PENS report, Larry James stated that he was the ‘Chief Psychologist for the Joint Intelligence Group at GTMO, Cuba’ starting in January 2003. When the Camp Delta Standard Operating Procedure Manual (dated February, 2003 and implemented March 27, 2003) was released in November of 2007 and included behavioral management of prisoners that violated our psychological ethics codes, that same ethics code required that I report such violations to the licensing board to be investigated. My complaint to the Louisiana Board of Psychologists was dated 2/29/08.”
Allegations of abuse during Dr. James’s January to May 2003 deployment include beatings, religious and sexual humiliation, rape threats and painful body positions.
Canadian citizen Omar Khadr, who is still imprisoned in Guantanamo, is one of the prisoners who has alleged brutal treatment in the spring of 2003, when he was only 16 years old.
Khadr was captured by American forces at the age of 15 following a four-hour firefight with militants in the village of Ayub Kheyl, Afghanistan. He has spent seven years in the Guantanamo Bay detention camps charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.
A Canadian citizen born in Toronto, he is the youngest prisoner held in the Guantanamo Bay detention camp by the United States and has been frequently referred to as a child soldier. In April 2009, the Federal Court of Canada ruled that the Canadian Charter of Human Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court is expected to hear the case next month.
Dr. James was also stationed in Iraq’s Abu Ghraib prison in 2004 and returned to Guantanamo in 2007. In 2008, he was named Dean of the School of Professional Psychology at Wright State University in Dayton, Ohio.
The CCR says that, as Chief Psychologist of the Joint Intelligence Group and a senior member of the Behavioral Science Consultation Team (BSCT) at Guantanamo, Dr. James had access to the confidential medical records of people he was charged with exploiting for intelligence.
It adds that, according to former Guantanamo interrogators, BSCTs used information from patients’ records to help interrogators increase the patients’
psychological duress, including by exploiting their fears. The very purpose of these mental health professional teams, the interrogators said, was to help
“break” the prisoners. Dr. James denies that claim, but an extensive government paper trail supports the interrogators’ accounts, the organization contends.
The so-called “Biscuit Teams” have sparked controversy ever since their existence became public. The actions taken by team members have called into question the appropriate behavior for physicians, psychologists and other health care professionals who are team members.
The taken by the CCR is, “Despite their universally recognized duty to do no harm, doctors and psychologists have played a key role in the United States government’s policy of torture in its overseas prisons. Some have crafted and justified torture tactics, inflicted pain, overseen abuse and enabled and covered up cruel treatment.”
The group adds, “Freedom of Information Act litigation and a U.S. Senate Armed Services Committee (SASC) inquiry into the treatment of detainees have yielded shed light on the specific role of military intelligence psychologists and psychiatrists at the Guantánamo Bay detention center in Cuba. The names and licensing information of several individuals who may have been involved in prisoner abuse are publicly known. Yet, when presented with credible information that licensees within their jurisdiction may have committed gross breaches of ethics, state licensing boards have refused to take action. To date, not one health professional has been held accountable for their role in torture.”
Justice Delayed…
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.
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, 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.
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