By William Fisher
Amid the near-constant speculation over President Barack Obama’s strategy for Afghanistan, there appears to be virtually universal consensus that rooting out corruption has to be a top priority if the U.S. and its NATO allies are to have a “credible partner” in the Afghan government.
But corruption takes many forms and is found at many levels. To the lawyers of Human Rights First (HRF) understanding the relationship between corruption, how prisoners are treated, and the rule of law, is “critical to the success of any strategy” the Obama Administration may decide to pursue.
Sahr MuhammedAlly, an HRF attorney and author of a new report, “Fixing Afghanistan,” explained. She told Truthout:
“Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated -- a complete disaster. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.”
And that, she adds, “is no more or no less corrupt than a person who gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again – because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man’s land.”
MuhammedAlly says “rule of law” training designed to prevent both kinds of situations has been going on for eight years, but has been “uncoordinated.” She says the U.S., NATO, and the Afghan Government are going have to recognize that “further detention policy reforms at Bagram are critical to achieving U.S. counterinsurgency goals in Afghanistan.” And these reforms, she adds, are going to require substantial resources.
That is the central message of the new HRF policy paper. It outlines steps the United States should take now “to establish legitimacy in the eyes of the Afghan people and to more fully align U.S. detentions with strategic priorities.”
"Successful counterinsurgency depends on U.S. actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan," said MuhammedAlly, who wrote the paper.
The paper says, "To achieve this goal, the U.S. government should take further steps now to support U.S. goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of U.S. detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention."
The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S.military not to be a threat to U.S.,Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.
According to those we interviewed in April, “prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers.”
Detainees, it continues, “were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.”
The report continues: “In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from U.S. to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS),years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses,no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges.”
Specifically, HRF recommends that the U.S. and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for U.S. detentions consistent with international law. In order to avoid mistaken captures, the organization says, the U.S. must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.
The U.S. must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint-U.S.-Afghan review body. The U.S. should establish more transparency for detention operations by facilitating access to detainees and to U.S. detention facilities by Afghan and international human rights organizations. And
the U.S. should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.
Back in September, the Pentagon announced new detainee review board (DRB) procedures for the 600 detainees being held by the U.S. military at Bagram.
The new guidelines would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.
Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as "enemy combatants" is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced, and ineffective.
Also announced were reforms outlined in General Stanley McChrystal's August 30th assessment on Afghanistan for both U.S. and Afghan prisons, focusing on rehabilitation and skills training of prisoners in order to prevent their radicalization, as well as on evidentiary concerns that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts.
General McChrystal noted that "detention operations while critical to counterinsurgency operations, also have the potential to become a strategic liability for the U.S. and ISAF" and concluded that the "desired endstate" is to transfer all detention operations, including U.S., to the Afghan government provided it has the capacity to run these systems in accordance with international and national law.
"We are mindful of the significant challenges that lie ahead to accomplish the detention goals outlined by the Pentagon and we are gratified to see improved detainee review procedures replace ones that were unfair and detrimental to U.S. counterinsurgency goals. To win back support for its mission and cooperation of the Afghan people, the United States however, must enact further reforms to U.S. detention practices," said MuhammedAlly.
She said, "Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide."
"It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address, " she added.
MuhammedAlly called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.
HRF’s recommendations come as the newly created Joint Task Force 435 in Afghanistan undertakes its mission to oversee new detainee review procedures in Bagram and assess how to effectuate the "endstate" of transferring detention operations to the Afghan government. It also comes as the Obama Administration nears the end of its own policy review and prepares to announce its strategy for Afghanistan operations.
In September, human rights activists and legal experts reacted swiftly to disclosures that the U.S. government is planning to introduce new measures it claimed would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.
Their views ranged from cautious optimism to total condemnation.
Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes "a step in the wrong direction."
She told us, "No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice."
She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, "only invites rule-breaking and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors."
"The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees," she said.
David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration’s new rules would work.
He told us, "The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court."
He said, "The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated."
He added," It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention."
In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines "encouraging," she remains concerned about the level of secrecy that surrounds Bagram.
"The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention," she noted.
"The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram," she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.
He told us, "Whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields."
While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel – they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us, "Judge Bates’ decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution."
"These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones," Pitts said.
There are some 600-plus prisoners being held at Bagram. Critics charge that President Barack Obama has been turning Bagram into “a new Guantanamo,” since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.
Wednesday, November 11, 2009
Military Commissions Create “Second-Class” Justice System, Lawyers Charge
By William Fisher
Critics of President Obama’s changes to the regulations governing military commissions are characterizing these changes as “cosmetic improvements,” amid a growing consensus among human rights organizations that these tribunals are designed to produce convictions while trials in civilian courts are far more likely to produce justice.
This is the emerging view, not only from outside advocates opposed to the Bush-era tribunals, but also of many of the military judges, prosecutors and defense attorneys who have seen from the inside how the Commissions have worked – or failed to work – over the past eight years.
One of these is Air Force Reserve Lt. Col. David Frakt, who resigned his post as a defense lawyer for a Guantanamo prisoner, and enjoys a high degree of credibility because of the unique experience he has had.
We spoke extensively with Frakt via email. He told us. “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 war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt concludes that “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.”
Col. Frakt continues: “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 referenced an amendment South Carolina Republican Senator Lyndsey Graham sought to insert into the bill. Graham commented that people who are terrorists who don't deserve full Constitutional rights. Col. Frakt responds by charging that 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?”
Frakt concludes that “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 is 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.”
Frakt speaks from first-hand experience. He served as an Air Force officer and military defense counsel with the Office of Military Commissions. During that time, he called the original military commissions “a catastrophic failure.” He was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement when a military judge ruled his confession was coerced. Frakt has returned to his work as a professor at Western State University College of Law in Fullerton, California.
And he is not alone in condemning the military commissions. Frakt’s former adversary in the Military Commissions, the prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008. He told a congressional committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”
Vandeveld declared the Commission system unable to deliver justice, and explained how he had gone from being a “true believer to someone who felt truly deceived,
In October and November 2008, his military judge, Army Col. Stephen Henley, refused to accept the confessions made by Jawad shortly after his capture (both in Afghan and US custody), because they had been extracted through threats of torture.
This dramatic assertion was made in a statement by Lt. Col. Vandeveld in January of this year in connection with Jawad’s habeas claim. His lawyers had discovery that Jawad may have been as young as 12 when he was first seized.
This disclosure produced yet another crisis for the Commission system, when an exasperated federal judge condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and statements to a Senate and House Committee in July by Vandeveld and Frakt.
The positions taken by both men dropped like an A-bomb on the uniformed military, the civilian leadership at the Pentagon, the Congress and the White House.
But these positions should have come as no surprise. Perhaps the element that was unique was agreement involving both the prosecutor and the defense counsel in the same single case.
Lt. Col. Frakt testified before a Congressional Committee as an expert witness, being an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul.
The view he expressed was that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.
Lt. Col. Frakt told Congress, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”
“One point on which all sides should be able to agree is that the military
commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted.
Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.
“There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.
“Why, with the entire resources of the Department of Defense, the Justice
Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality.”
“The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail,” Frakt said.
Frakt and Vandeveld were not the first the first – nor are they likely to be the last – to speak out in opposition to the use of Military Commissions. Earlier in the GITMO kabuki theater spectacle, a young Naval officer named Charles D. Swift gained national notoriety by pushing back against the Pentagon powers that be.
Swift was a Lieutenant Commander in the Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. He served as defense counsel for Salim Ahmed Hamdan, a former driver for Osama bin Laden captured during the invasion of Afghanistan. Hamdan was charged in July 2004 with conspiracy to commit terrorism.
As Hamdan's legal counsel, Swift, together with the Seattle law firm of Perkins Coie and Georgetown Law Professor Neal Katyal, appealed Hamdan's writ of habeas corpus petition to the U. S. Supreme Court.
In Hamdan v. Rumsfeld, the justices ultimately held that the military commission to try Salim Hamdan was illegal and violated the Geneva Conventions as well as the United States Uniform Code of Military Justice (UCMJ).
Ultimately, Swift was passed over (the second time) for promotion because the Navy said he failed to have the diversity of experience required of Navy judge advocates and had to retire under the military's "up or out" promotion system which mandates retirement for officers passed over twice. But other informed sources contend Swift was released because of his Hamdan defense. Swift has said he learned of being passed over two weeks after the Supreme Court decided in Hamdan's favor.
Hamdan was but one of many judicial rebukes to President George W. Bush’s detention plans. In Hamdan, the High Court held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."
Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
In another case, Hamdi v. Rumsfeld, the Supreme Court reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
Earlier, in 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantanamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.
Subsequent to this decision, the habeas petitions were remanded to the district court for further proceedings. Immediately after the Supreme Court's decision in Rasul, 11 new habeas petitions were filed in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United States and Boumediene v. Bush, the leading cases determining the significance of the Supreme Court's decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.
Moreover, the list continues to grow under Presdident Barack Obama. The high court has accepted a request to hear a case from 13 ethnic Uighur (Chinese Muslim) GITMO inmates who are petitioning for release to the United States, contrary to a measure voted last week by the House of Representatives permitting the transfer of prisoners to the US for trial, but explicitly forbidding their release to the US.
The legislation requires an assessment of potential security risks, including what dangers are involved, how the threat can be diminished, legal arguments and assurances about the detainee's level of risk to the relevant state governor, to be provided 45 days prior to prosecution in the US. Under these measures, the President must provide Congress with the detainee's name, destination, a risk assessment, and transfer terms in order to release them to another country.
Some of the Uighurs are still being detained while the government has found countries prepared to relocate others. A federal judge ruled in February that they be released to the US. However an appeals court overturned the decision in February saying that only the executive branch, not federal judges, had jurisdiction on immigration matters.
In addition to the cases on their way to the Supreme Court, dozens of habeas corpus petitions have been filed, but not yet heard, in Federal Court in Washington, D.C.
Observers of the military tribunals process are predicting that the new amendments may do little to insulate the Commissions from multiple legal challenges. In the past, these challenges have virtually stopped the proceedings at GITMO and have, in large part, been responsible for only three trials being held there in eight years.
One of the more persistent GITMO-watchers since the first prisoners arrived there is Chip Pitts, President of the Bill of Rights Defense Committee, and a lecturer at the Stanford University law school.
Here’s his take-away from this week’s developments.
He told us: “Without gainsaying the undoubted improvements contained in Obama’s military commissions created by the National Defense Authorization Act (NDAA), including an overdue prohibition on use of most (but not all) evidence obtained by coercion, the problem with continuing the unnecessary and suspect Bush-era military commissions in any form is that they perpetuate an overbroad, second-tier system of justice.
“Especially when taken together with continued recourse to novel definitions of ‘war crimes’, indefinite detention, and refusal to prosecute higher-ups who authorized torture, such derogations from the rule of law blatantly violate international human rights and constitutional due process and equal protection: they’ll be used only in a discriminatory fashion, for non-citizens (even some who were children at the time) against whom the evidence is insufficient to try them in the regular U.S. courts that, unlike the military commissions, have a good record of successfully trying terrorists.
“Such a discriminatory, second-tier system of justice not only calls into question the outcomes reached, but will inevitably spill over to taint the U.S. justice system as a whole and continue to tarnish the country’s reputation and soft power – and the nation’s ability to achieve both its human rights goals and its other vital interests in the world.
“It is way past time to reject the discriminatory, disproven, xenophobic, demagogic, and counterproductive notions driving such policy mistakes, including above all the now indisputably wrong idea that the hopelessly overbroad ‘endless global war on terror’ framework can somehow yield better decisions and results than the proven legal approaches that carefully and pragmatically evolved over the last 1000 years as the best ways to produce truth with justice,” he told us.
Critics of President Obama’s changes to the regulations governing military commissions are characterizing these changes as “cosmetic improvements,” amid a growing consensus among human rights organizations that these tribunals are designed to produce convictions while trials in civilian courts are far more likely to produce justice.
This is the emerging view, not only from outside advocates opposed to the Bush-era tribunals, but also of many of the military judges, prosecutors and defense attorneys who have seen from the inside how the Commissions have worked – or failed to work – over the past eight years.
One of these is Air Force Reserve Lt. Col. David Frakt, who resigned his post as a defense lawyer for a Guantanamo prisoner, and enjoys a high degree of credibility because of the unique experience he has had.
We spoke extensively with Frakt via email. He told us. “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 war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt concludes that “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.”
Col. Frakt continues: “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 referenced an amendment South Carolina Republican Senator Lyndsey Graham sought to insert into the bill. Graham commented that people who are terrorists who don't deserve full Constitutional rights. Col. Frakt responds by charging that 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?”
Frakt concludes that “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 is 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.”
Frakt speaks from first-hand experience. He served as an Air Force officer and military defense counsel with the Office of Military Commissions. During that time, he called the original military commissions “a catastrophic failure.” He was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement when a military judge ruled his confession was coerced. Frakt has returned to his work as a professor at Western State University College of Law in Fullerton, California.
And he is not alone in condemning the military commissions. Frakt’s former adversary in the Military Commissions, the prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008. He told a congressional committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”
Vandeveld declared the Commission system unable to deliver justice, and explained how he had gone from being a “true believer to someone who felt truly deceived,
In October and November 2008, his military judge, Army Col. Stephen Henley, refused to accept the confessions made by Jawad shortly after his capture (both in Afghan and US custody), because they had been extracted through threats of torture.
This dramatic assertion was made in a statement by Lt. Col. Vandeveld in January of this year in connection with Jawad’s habeas claim. His lawyers had discovery that Jawad may have been as young as 12 when he was first seized.
This disclosure produced yet another crisis for the Commission system, when an exasperated federal judge condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and statements to a Senate and House Committee in July by Vandeveld and Frakt.
The positions taken by both men dropped like an A-bomb on the uniformed military, the civilian leadership at the Pentagon, the Congress and the White House.
But these positions should have come as no surprise. Perhaps the element that was unique was agreement involving both the prosecutor and the defense counsel in the same single case.
Lt. Col. Frakt testified before a Congressional Committee as an expert witness, being an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul.
The view he expressed was that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.
Lt. Col. Frakt told Congress, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”
“One point on which all sides should be able to agree is that the military
commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted.
Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.
“There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.
“Why, with the entire resources of the Department of Defense, the Justice
Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality.”
“The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail,” Frakt said.
Frakt and Vandeveld were not the first the first – nor are they likely to be the last – to speak out in opposition to the use of Military Commissions. Earlier in the GITMO kabuki theater spectacle, a young Naval officer named Charles D. Swift gained national notoriety by pushing back against the Pentagon powers that be.
Swift was a Lieutenant Commander in the Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. He served as defense counsel for Salim Ahmed Hamdan, a former driver for Osama bin Laden captured during the invasion of Afghanistan. Hamdan was charged in July 2004 with conspiracy to commit terrorism.
As Hamdan's legal counsel, Swift, together with the Seattle law firm of Perkins Coie and Georgetown Law Professor Neal Katyal, appealed Hamdan's writ of habeas corpus petition to the U. S. Supreme Court.
In Hamdan v. Rumsfeld, the justices ultimately held that the military commission to try Salim Hamdan was illegal and violated the Geneva Conventions as well as the United States Uniform Code of Military Justice (UCMJ).
Ultimately, Swift was passed over (the second time) for promotion because the Navy said he failed to have the diversity of experience required of Navy judge advocates and had to retire under the military's "up or out" promotion system which mandates retirement for officers passed over twice. But other informed sources contend Swift was released because of his Hamdan defense. Swift has said he learned of being passed over two weeks after the Supreme Court decided in Hamdan's favor.
Hamdan was but one of many judicial rebukes to President George W. Bush’s detention plans. In Hamdan, the High Court held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."
Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
In another case, Hamdi v. Rumsfeld, the Supreme Court reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
Earlier, in 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantanamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.
Subsequent to this decision, the habeas petitions were remanded to the district court for further proceedings. Immediately after the Supreme Court's decision in Rasul, 11 new habeas petitions were filed in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United States and Boumediene v. Bush, the leading cases determining the significance of the Supreme Court's decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.
Moreover, the list continues to grow under Presdident Barack Obama. The high court has accepted a request to hear a case from 13 ethnic Uighur (Chinese Muslim) GITMO inmates who are petitioning for release to the United States, contrary to a measure voted last week by the House of Representatives permitting the transfer of prisoners to the US for trial, but explicitly forbidding their release to the US.
The legislation requires an assessment of potential security risks, including what dangers are involved, how the threat can be diminished, legal arguments and assurances about the detainee's level of risk to the relevant state governor, to be provided 45 days prior to prosecution in the US. Under these measures, the President must provide Congress with the detainee's name, destination, a risk assessment, and transfer terms in order to release them to another country.
Some of the Uighurs are still being detained while the government has found countries prepared to relocate others. A federal judge ruled in February that they be released to the US. However an appeals court overturned the decision in February saying that only the executive branch, not federal judges, had jurisdiction on immigration matters.
In addition to the cases on their way to the Supreme Court, dozens of habeas corpus petitions have been filed, but not yet heard, in Federal Court in Washington, D.C.
Observers of the military tribunals process are predicting that the new amendments may do little to insulate the Commissions from multiple legal challenges. In the past, these challenges have virtually stopped the proceedings at GITMO and have, in large part, been responsible for only three trials being held there in eight years.
One of the more persistent GITMO-watchers since the first prisoners arrived there is Chip Pitts, President of the Bill of Rights Defense Committee, and a lecturer at the Stanford University law school.
Here’s his take-away from this week’s developments.
He told us: “Without gainsaying the undoubted improvements contained in Obama’s military commissions created by the National Defense Authorization Act (NDAA), including an overdue prohibition on use of most (but not all) evidence obtained by coercion, the problem with continuing the unnecessary and suspect Bush-era military commissions in any form is that they perpetuate an overbroad, second-tier system of justice.
“Especially when taken together with continued recourse to novel definitions of ‘war crimes’, indefinite detention, and refusal to prosecute higher-ups who authorized torture, such derogations from the rule of law blatantly violate international human rights and constitutional due process and equal protection: they’ll be used only in a discriminatory fashion, for non-citizens (even some who were children at the time) against whom the evidence is insufficient to try them in the regular U.S. courts that, unlike the military commissions, have a good record of successfully trying terrorists.
“Such a discriminatory, second-tier system of justice not only calls into question the outcomes reached, but will inevitably spill over to taint the U.S. justice system as a whole and continue to tarnish the country’s reputation and soft power – and the nation’s ability to achieve both its human rights goals and its other vital interests in the world.
“It is way past time to reject the discriminatory, disproven, xenophobic, demagogic, and counterproductive notions driving such policy mistakes, including above all the now indisputably wrong idea that the hopelessly overbroad ‘endless global war on terror’ framework can somehow yield better decisions and results than the proven legal approaches that carefully and pragmatically evolved over the last 1000 years as the best ways to produce truth with justice,” he told us.
Tuesday, November 10, 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.
Saturday, November 07, 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.
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.
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