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.
Saturday, November 07, 2009
Changes in Military Commissions Fail to Impress Rights Groups
By William Fisher
Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”
One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”
Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”
The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”
President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).
Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.
Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”
He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.
The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.
Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”
He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”
And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.
Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.
Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”
One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”
Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”
The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”
President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).
Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.
Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”
He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.
The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.
Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”
He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”
And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.
Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.
Friday, November 06, 2009
Most Happy Fella!
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.
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.
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.”
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