By William Fisher
Thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing — are being labeled “terrorists” and their applications for protection are being denied or delayed because of overly broad “terrorism” provisions in the Immigration and Nationality Act (INA).
These are the conclusions of a report by Human Rights First (HRF), a legal advocacy organization. They come as Homeland Security Secretary Janet Napolitano, the White House point person on immigration, is calling on Congress to provide temporary worker programs and a path to citizenship for 12 million unauthorized workers when it takes up a reform bill next year.
Napolitano is optimistic that immigration reform could pass in an election year, because she says border security goals have been met and the economic downturn has decreased unauthorized immigration significantly since a bipartisan bill died in the Senate two years ago.
But Congressional Republicans dispute the administration's claims that the border has been secured, and have repeated their opposition to citizenship for unauthorized immigrants.
Earlier, Napolitano outlined the efforts her department plans to make to improve and reform conditions for thousands of refugees currently being held in detention centers, county jails, and privately run prisons, most of them awaiting decisions on their applications for asylum in the U.S. Many of these centers, which are run by DHS’s Immigration and Customs Enforcement agency (ICE), have been severely criticized for denying detainees legal due process and basic medical care.
The HRF report -- Denial and Delay: The Impact of the Immigration Law’s ‘Terrorism Bars’ on Asylum-Seekers and Refugees in the United States -- describes the adverse and unintended consequences the overly broad “terrorism” provisions in the Immigration and Nationality Act (INA) are producing for asylum-seekers and refugees.
The report says that more than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.
Anwen Hughes, Senior Counsel in HRF’s Refugee Protection Program, told Truthout that there are currently over 7,500 cases pending before the Department of Homeland Security. She said these cases are “on indefinite hold based on some actual or perceived issue relating to the immigration law’s ‘terrorism’-related provisions.” The overwhelming majority of the cases are applications for permanent residence or family reunification filed by people who were granted asylum or refugee status several years ago and have been living and working in the United States since then,” she said.
She added that there is a need for a comprehensive review of the program.
HRF’s report cites a number of examples of refugees who have been characterized as “terrorists” under the legal definitions currently in use:
- A refugee from Burundi, who was detained for 20 months in a succession of county jails because the U.S. Department of Homeland Security, and the immigration judge who would otherwise have granted him asylum, took the position that he had provided “material support” to a rebel group because armed rebels robbed him of four dollars and his lunch.
- A young girl kidnapped at age 12 by a rebel group in the Democratic Republic of the Congo, used as a child soldier, and later threatened for advocating against the use of children in armed conflict, who has been unable to receive a grant of asylum, as her application has been on hold for over a year because she was forced to take part in armed conflict as a child.
- A man who fled political and religious persecution in Bangladesh, who has had his application for permanent residence placed on indefinite hold because he took part in his country’s successful struggle for independence—in 1971.
--The minor children of members of the democratic opposition from Sudan who were granted asylum in the United States years ago, who have been prevented from becoming permanent residents because the peaceful political activities of their parents have been deemed to constitute “material support to a terrorist organization.”
HRF says the provisions of the INA “are being applied to refugees who were associated with groups that the U.S. government does not consider to be ‘terrorist organizations’ in any other context. The INA’s sloppy definition of a ‘Tier III terrorist organization’ is causing groups that the United States does not treat as ‘terrorist’ in any other context to be defined in this way.”
The INA defines “terrorist activity” as any unlawful use of a weapon for any purpose other than personal enrichment and a “Tier III terrorist organization” as any group of two or more people who engage in—or has a subgroup that engages in—“terrorist activity.” These laws are overly broad, and for the past several years the immigration agencies have been interpreting them in an increasingly expansive way.
As a result, the report asserts, thousands of legitimate refugees and asylum seekers—who pose no danger to the United States and who have committed no acts of wrongdoing—have been labeled “terrorists” and had their applications for protection denied or delayed.
While the INA also provides broad authority to the Secretary of Homeland Security and the Secretary of State, in consultation with the Attorney General, to grant “waivers” of most of the terrorism-related inadmissibility grounds, HRF says “the federal agencies involved have implemented this authority in a piecemeal and centralized fashion that has proved to be unworkable as a long-term, meaningful solution.”
Examples of groups labeled “Tier III terrorist organizations” include:
- - Iraqi groups who rose up against Saddam Hussein in the 1990’s, including those who took part in the failed uprising at the end of the Gulf War of 1991 that was encouraged by the first President Bush;
-- Iraqi groups that later fought against Saddam Hussein’s government at any other time, including in conjunction with the Coalition forces that ultimately overthrew his regime in 2003;
- - Afghan mujahidin groups that fought the Soviet invasion in the 1980’s, with U.S. support;
- - The Democratic Unionist Party and the Ummah Party, two of the largest democratic opposition parties in Sudan, many of whose members were forced to flee the country in the years after the 1989 military coup that brought current President Omar Al-Bashir to power;
- - Groups that fought the ruling military junta in Burma and were not included in the 2007 legislation that removed the Chin National Front and other Burmese insurgent groups from the scope of the Tier III definition;
Many of the refugees affected by the “Tier III” definition’s overbreadth were involved only in peaceful political activity in connection with groups that are now deemed to be “terrorist organizations” for immigration-law purposes, the report says..
It adds, “The federal immigration agencies charged with applying these laws—the Department of Homeland Security, the Department of Justice, and the Department of State — have also been interpreting all these provisions in a very expansive way. The immigration law’s ‘material support’ bar, for example, is being applied to minimal contributions, to people who were forced to pay ransom to armed groups, to doctors who provided medical care to the wounded in accordance with their medical obligations, and to persons who engaged in other forms of lawful activity. These interpretations have exacerbated the impact of the law’s overbroad definitions.”
The report’s policy recommendations focus on the scope and application of the INA’s “terrorism”-related provisions on those individuals whom Congress intended those provisions to target: people who threaten U.S. national security and those who have engaged in or supported acts of violence that are inherently wrongful and condemned under U.S. and international law. HRF is calling on Congress to:
-- Eliminate the statutory definition of a “Tier III” terrorist organization, which has led to numerous unintended consequences but is not needed as an enforcement tool against its intended targets;
-- Amend the immigration law’s definition of “terrorist activity” so that it (a) targets only the use of violence for purposes of intimidation or coercion (of a civilian population or of a government or an international organization), and (b) no longer applies to uses of armed force that would not be unlawful under international humanitarian law;
-- Amend the immigration law’s definition of “material support” to make clear that it does not apply to acts done under coercion;
-- Eliminate the provision that makes a person inadmissible simply for being the spouse or child of a person inadmissible under the immigration law’s “terrorism”-related grounds;
-- Give waiver authority to the Attorney General for cases pending before the Department of Justice, with the provision that the Attorney General delegate this authority to the immigration courts;
In addition, the report says, the Departments of Homeland Security, Justice, and State should support its recommendations to Congress; interpret existing law consistently with its text and purpose, to target those who advance actual terrorist activity; and implement a more effective and fair approach to waivers.
Thursday, December 03, 2009
Saturday, November 28, 2009
The Irony of Unintended Consequences
By William Fisher
The Supreme Court has agreed to hear a case challenging a law that treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes.
The case is known as Holder v. Humanitarian Law Project, and is the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”
The plaintiffs, led by the Center for Constitutional Rights (CCR), charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime. The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.
The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department.
Said CCR Cooperating Attorney David Cole, a law professor at the Georgetown University Law Center, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law. The Obama administration sought Supreme Court review of that decision.
The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
Meanwhile, committees of the U.S. Senate and House of Representatives continue to debate three provisions of the USA Patriot Act that are due to expire on December 31
The expiring provisions are the roving wiretap authority, the so-called "section 215" business records orders, and the nicknamed "lone wolf" provision.
The roving wiretap authority expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order "roving" or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act (FISA) required a separate FISC authorization to tap each device a target used.
Section 215’s reference to Business Records substantially revised the authority under FISA for seizure of business records, including third party records of individuals' transactions and activities. Previously, the FBI could apply to the FISC for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadened that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. The recipient of the order may not disclose the fact that the FBI has sought or obtained records.
The nicknamed "Lone Wolf" authorization allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.
The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.
The Obama Administration has quietly endorsed the reauthorization of the provisions due to expire. The Senate Judiciary Committee has voted to make only minor changes to these measures, while the House of Representatives Judiciary Committee is seeking far more sweeping reforms.
The new legislation proposed by the House committee would permit the so-called “lone wolf” provision to sunset. It would also restrict the use of National Security Letters (NSLs). According to a Congressional Research Service report, NSLs “are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”
Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.
A jittery Congress passed The Patriot Act by a landslide 45 days after the 9/11 terrorist attacks with virtually no debate. It provides law enforcement and intelligence agencies with sweeping additional powers to thwart terrorist activities. The law was reauthorized in 2005.
The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.
Among its most outspoken critics is Chip Pitts, president of the Bill of Rights Defense Committee. He told IPS, “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.”
He added, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”
The Supreme Court has agreed to hear a case challenging a law that treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes.
The case is known as Holder v. Humanitarian Law Project, and is the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”
The plaintiffs, led by the Center for Constitutional Rights (CCR), charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime. The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.
The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department.
Said CCR Cooperating Attorney David Cole, a law professor at the Georgetown University Law Center, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law. The Obama administration sought Supreme Court review of that decision.
The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
Meanwhile, committees of the U.S. Senate and House of Representatives continue to debate three provisions of the USA Patriot Act that are due to expire on December 31
The expiring provisions are the roving wiretap authority, the so-called "section 215" business records orders, and the nicknamed "lone wolf" provision.
The roving wiretap authority expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order "roving" or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act (FISA) required a separate FISC authorization to tap each device a target used.
Section 215’s reference to Business Records substantially revised the authority under FISA for seizure of business records, including third party records of individuals' transactions and activities. Previously, the FBI could apply to the FISC for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadened that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. The recipient of the order may not disclose the fact that the FBI has sought or obtained records.
The nicknamed "Lone Wolf" authorization allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.
The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.
The Obama Administration has quietly endorsed the reauthorization of the provisions due to expire. The Senate Judiciary Committee has voted to make only minor changes to these measures, while the House of Representatives Judiciary Committee is seeking far more sweeping reforms.
The new legislation proposed by the House committee would permit the so-called “lone wolf” provision to sunset. It would also restrict the use of National Security Letters (NSLs). According to a Congressional Research Service report, NSLs “are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”
Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.
A jittery Congress passed The Patriot Act by a landslide 45 days after the 9/11 terrorist attacks with virtually no debate. It provides law enforcement and intelligence agencies with sweeping additional powers to thwart terrorist activities. The law was reauthorized in 2005.
The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.
Among its most outspoken critics is Chip Pitts, president of the Bill of Rights Defense Committee. He told IPS, “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.”
He added, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”
Wednesday, November 25, 2009
Obama's Fifth Category: The "Untriable"
By William Fisher
In his talk at the National Archives in May, President Obama referred to five categories of prisoners currently held at Guantanamo Bay.
First, there are those who have violated American criminal laws and will be tried in federal courts. There may be as many as a dozen men in this category, five of whose trials were announced last week, including that of Khalid Sheikh Mohammed.
Second, there are detainees who violated the laws of war and who will be tried by the "new and improved" military commissions. Five prisoners were also designated for such trials last week and there is speculation that there are perhaps 25 more who fall into this category.
The third group consists of 21 detainees who have already been released by the courts.
Fourth, there are believed to be some 90 prisoners who are cleared for release and who can be transferred safely to other countries if such countries can be found.
So what is this "fifth category" of detainees? It consists of prisoners who are thought too dangerous to release, but who cannot be brought to trial.
According to The Washington Post, quoting an unnamed official, there are some 75 prisoners in this "fifth category." And the administration's position is that these people are untriable because the evidence against them was obtained through torture or because public trials would involve and potentially expose an unacceptable volume of classified material.
Which leaves the administration with the question of what to do with these people.
The Obama administration gave the human rights community apoplexy when it referred to "preventive detention." Now, it is simply saying that it's not going to seek any additional authority from Congress for such preventive detention. Which perhaps gives us a clue to the approach the administration has in mind. In a study by the Obama-friendly Center for American Progress, analyst Ken Gude suggests that the Obama administration "incarcerate detainees convicted in US criminal courts in maximum-security US prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan." (Emphasis mine.)
That latter group would presumably include the untriable. Which appears to create a neo-GITMO at Bagram in Afghanistan.
In an effort to make sense out of this maze of legal confusions, I contacted a group of people I consider to be some of the best minds in constitutional law. In my simplistic layman's way, I questioned the assertion that certain people can't be tried and opined that it seemed to me that anyone who is accused of a crime can - should, must - be tried for that crime, and can not be held indefinitely without a trial.
Here are some of their responses:
Marjorie Cohn, president of the National Lawyers Guild: The 75 aren't even being accused of crimes. If there isn't enough evidence against them besides statements that have been tortured out of them, they should be released. Judges and prosecutors who have tried terrorism cases in the United States say that the Classified Information Procedures Act effectively protects classified material. If there is probable cause to believe that someone has committed a crime, he should be charged and tried. If not, he should be released. Indefinite detention violates the International Covenant on Civil and Political Rights, a treaty the United States has ratified which makes it part of US law.
Jameel Jaffer, director of the National Security Program for the American Civil Liberties Union: We should be very skeptical of the proposition that there are prisoners who can't be prosecuted but are too dangerous to release. The United States has sweeping detention authority under both domestic law and international humanitarian law - authority that is broad enough to reach both terrorists and battlefield combatants. The criminal laws have been used to successfully prosecute not only people who have planned terrorist attacks but also people who have attended training camps or raised money for terrorist groups.
In criminal trials, the government can protect intelligence sources and methods by relying on the Classified Information Procedures Act. It's true that federal courts are unlikely to allow the government to rely on evidence derived from torture, but that's a problem with the government's evidence, not a problem with the courts. The courts reject that kind of "evidence" not only because torture is illegal but because evidence derived from torture is unreliable. And if such evidence is too unreliable to justify detention after trial, it's surely too unreliable to justify detention without trial.
Michael Ratner, president of the Center for Constitutional Rights: I do not think there is any place for preventive detention in a country that claims it is a democracy under the rule of the law. We opposed it under Bush and it looks no more legal when rewrapped by Obama. The constitution and international law mandates that people be charged and tried or released. The claim that some GITMO detainees can't be tried is a pretext that will usher in a scheme that is contrary to 225 years of US law. There is no middle ground when it comes to human freedom. The claim that some GITMO detainees can be held without charges and trial is an assertion I hoped never to hear in a country claiming it acts under the rule of law. Preventive detention is the road to perdition. It sets a precedent that will haunt our justice system for all time.
Gabor Rona, international legal director of Human Rights First: The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the US does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.
David Cole, professor at the Georgetown University Law Center: I don't think there is an obligation to try an enemy combatant for a war crime while the conflict is ongoing. For example, we did not try many Germans responsible for war crimes until the war was concluded, and issues of secrecy were less complicated. And I'm sure there were many we did not try at all. So I don't think there is an obligation to try. There is an obligation to ensure that anyone detained be provided a full and fair hearing on his status, that the definition of "enemy combatant" be defined narrowly, and that all detainees be treated humanely. But not that they be tried.
Brian J. Foley, visiting associate professor of law, Boston University: Ultimately this shows that the problem is that terrorism is something between crime and war. Though we know that the most effective way of combating terrorism groups is through police method, it seems akin to fighting "organized crime." Given that, then it seems that the court system we use should be geared more toward the criminal paradigm, which ultimately tests the government's claims that a person not wearing an enemy uniform has harmed, or is planning to harm, citizens.
The Obama Administration wants to be able to make those claims about people but not have them ever subjected to testing. We know that police often identify the wrong person; indeed, our court system itself is not perfect at correcting such government errors, as our history of wrongful convictions shows. So there needs to be testing of EVERY government claim that someone is planning an attack and/or is dangerous and therefore must be imprisoned. It is very often disputable whether someone is planning terrorist acts, ESPECIALLY when the only evidence is evidence gained by torture or is so-called "classified" evidence.
Under the Obama plan, a US government acting in error or in bad faith can detain forever anybody it claims is planning a terrorist attack. We have to be clear that the Administration is claiming a sweeping power with no check, a power - lifelong detention - that is rare in criminal law and rare in war (given that, unlike most wars, the GWOT will never end). The GWOT is Big Government's BFF ("best friend forever") and is the mortal enemy of democracy and human rights. This plan is the ultimate version of the government saying, "Just trust us" - a trust that is anathema to the spirit of the Founding Fathers.
The government appears afraid to take any risk at all that someone released might cause harm. But the assumption that someone might cause harm is assumption based on mere faith and belief, not on evidence. The bottom line is this makes no sense: the evidence gained by coercion is likely unreliable, and the secret evidence might be erroneous or even manufactured for political ends. Ultimately it's an epistemological question: How can you know someone is dangerous if it is based on evidence you obtained through coercion and is therefore unreliable, or if it is based on evidence you are afraid to have tested - again, we know our intelligence agencies are not perfect and make mistakes. The fact of the matter is that we have a system and a widely-held norm (among many nations and internationally) that says "prove it" to a government when the government wants to take away somebody's life or liberty. The real question at the heart of this whole dispute - a question that no one seems to want to ask openly, is, "Are we brave enough to adhere to such norm to prevent the many ills that can flow from giving the government the power to detain people indefinitely on its own say-so?" I don't think that the people arguing for this power are brave enough; I think they are cowards. Their cowardice will turn our country into something less than a democracy. "Land of the free, home of the brave" - freedom and bravery go together. You can't have freedom if you are not brave.
David Frakt, professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee: The assertion that there are 75 detainees who are too dangerous to release, but can't be prosecuted, and therefore must be held indefinitely, defies common sense.
It is true that as a matter of the law of war that during an armed conflict, a person who is detained for taking part in the armed conflict may be held until the resolution of the conflict. Each of the detainees being held has been determined in a Combatant Status Review Tribunal to have been an "enemy combatant."
This does not mean that the detainee committed a crime. It could simply mean that the detainee fought against US or allied forces when they invaded Afghanistan or was prepared to do so if they had the opportunity. The government might feel that such detainees should not be released because they would return to the battlefield in an ongoing conflict. What is more troubling is the notion that some of the detainees are believed to have committed crimes but that such crimes can't be proven in a court of law. I find this hard to believe. Virtually any association with Al Qaeda is enough to support a federal charge of material support to terrorism, which would likely lead to a lengthy prison sentence. So why can't these people be tried - because they didn't commit a crime, or because the crimes they are believed to have committed can't be proved in court? If it is that the crimes can't be proven in court, why is that? Is it because of the government's belief that all of the evidence they have against an individual would be suppressed as the product of torture? In my opinion, if the only evidence we have is derived from torture, then we can't have any degree of confidence in the reliability of such evidence.
The government has shown a willingness to try several individuals who have admittedly been tortured based on the alleged existence of independent "clean" evidence, so the mere fact that someone was tortured is clearly not a bar to prosecution in the view of the Obama Administration. If there is independent corroborating evidence, then let the individuals be tried. If there is no non-torture derived evidence, then the government should not be able to even prove by a preponderance of the evidence that an individual should be held. We have seen repeatedly in the habeas corpus litigation that the government's evidence did not hold up to judicial scrutiny.
The Administration needs to come clean on who they believe fits into this category and why. Otherwise, we are just left to speculate.
Chip Pitts, president of the Bill of Rights Defense Committee: You're right about the detention (but not necessarily right about the laws of war enabling us to hold them until "hostilities" come to an end - if by that you mean hostilities in the so-called Global War on Terror or GWOT).
The laws of war apply to the detainees variously (if at all! - don't forget that the GWOT framework is novel and legally and factually problematic in the extreme, and in my view and that of many other international lawyers and scholars it's utterly incorrect and inapplicable both in terms of the traditional law of war and in terms of human rights and constitutional law which apply even at all times even when there is no war).
Real wartime, i.e. battlefield detainees from Iraq or Afghanistan, are POWs and should rightly be seen as in a completely different legal category from civilians suspected of crime or simply rounded up and sent to GITMO, Bagram, or any of the secret prisons or interrogation sites used by the CIA, the government, and its allies. The former may be held until the end of those particular hostilities and the latter must be tried (supposedly under speedy trials as well as the other legal guarantees of fair trials) or promptly released.
You're right that indefinite detention without trial or legal due process of either category - of anyone, in fact - is outlawed both by the law of war and by international human rights law (as well as US constitutional law).
Moreover, there's no question that not all of the people now at GITMO are even accused of being criminals (war criminals or civilian criminals), all of which means that your question goes back again to the conceptual and legal framework with which we're viewing the situation; the legitimacy and legality of detention in general and indefinite detention in particular; and the individual facts of each person's case (to determine whether there are any legitimate legal grounds at all for detention and/or trial) - the interpretation of which becomes so much harder in light of the use of torture to coerce unreliable testimony.
So not even all the Constitutional experts agree precisely on the legal basis for putting a prisoner into that "fifth category" - the ones we're told can't be tried but are too dangerous to release. Largely because the Bush Administration tried to create its own law, the legal landscape is confused and confusing. But that doesn't help the Obama Administration. It still faces the question of what to do with these people.
In doing so, it faces a group - a very small group - of bad options. It can charge a person with a crime and risk being embarrassed by having tainted evidence thrown out of court. A court might also find that its evidence is insufficient or unreliable. A defendant might actually be exonerated or win on appeal - what then?
When, for one reason or another, you reject all but one of these options, you need then to accept that we are on our way to warehousing people.
For Americans, this is contrary to everything we've ever been taught about our system of justice.
In his talk at the National Archives in May, President Obama referred to five categories of prisoners currently held at Guantanamo Bay.
First, there are those who have violated American criminal laws and will be tried in federal courts. There may be as many as a dozen men in this category, five of whose trials were announced last week, including that of Khalid Sheikh Mohammed.
Second, there are detainees who violated the laws of war and who will be tried by the "new and improved" military commissions. Five prisoners were also designated for such trials last week and there is speculation that there are perhaps 25 more who fall into this category.
The third group consists of 21 detainees who have already been released by the courts.
Fourth, there are believed to be some 90 prisoners who are cleared for release and who can be transferred safely to other countries if such countries can be found.
So what is this "fifth category" of detainees? It consists of prisoners who are thought too dangerous to release, but who cannot be brought to trial.
According to The Washington Post, quoting an unnamed official, there are some 75 prisoners in this "fifth category." And the administration's position is that these people are untriable because the evidence against them was obtained through torture or because public trials would involve and potentially expose an unacceptable volume of classified material.
Which leaves the administration with the question of what to do with these people.
The Obama administration gave the human rights community apoplexy when it referred to "preventive detention." Now, it is simply saying that it's not going to seek any additional authority from Congress for such preventive detention. Which perhaps gives us a clue to the approach the administration has in mind. In a study by the Obama-friendly Center for American Progress, analyst Ken Gude suggests that the Obama administration "incarcerate detainees convicted in US criminal courts in maximum-security US prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan." (Emphasis mine.)
That latter group would presumably include the untriable. Which appears to create a neo-GITMO at Bagram in Afghanistan.
In an effort to make sense out of this maze of legal confusions, I contacted a group of people I consider to be some of the best minds in constitutional law. In my simplistic layman's way, I questioned the assertion that certain people can't be tried and opined that it seemed to me that anyone who is accused of a crime can - should, must - be tried for that crime, and can not be held indefinitely without a trial.
Here are some of their responses:
Marjorie Cohn, president of the National Lawyers Guild: The 75 aren't even being accused of crimes. If there isn't enough evidence against them besides statements that have been tortured out of them, they should be released. Judges and prosecutors who have tried terrorism cases in the United States say that the Classified Information Procedures Act effectively protects classified material. If there is probable cause to believe that someone has committed a crime, he should be charged and tried. If not, he should be released. Indefinite detention violates the International Covenant on Civil and Political Rights, a treaty the United States has ratified which makes it part of US law.
Jameel Jaffer, director of the National Security Program for the American Civil Liberties Union: We should be very skeptical of the proposition that there are prisoners who can't be prosecuted but are too dangerous to release. The United States has sweeping detention authority under both domestic law and international humanitarian law - authority that is broad enough to reach both terrorists and battlefield combatants. The criminal laws have been used to successfully prosecute not only people who have planned terrorist attacks but also people who have attended training camps or raised money for terrorist groups.
In criminal trials, the government can protect intelligence sources and methods by relying on the Classified Information Procedures Act. It's true that federal courts are unlikely to allow the government to rely on evidence derived from torture, but that's a problem with the government's evidence, not a problem with the courts. The courts reject that kind of "evidence" not only because torture is illegal but because evidence derived from torture is unreliable. And if such evidence is too unreliable to justify detention after trial, it's surely too unreliable to justify detention without trial.
Michael Ratner, president of the Center for Constitutional Rights: I do not think there is any place for preventive detention in a country that claims it is a democracy under the rule of the law. We opposed it under Bush and it looks no more legal when rewrapped by Obama. The constitution and international law mandates that people be charged and tried or released. The claim that some GITMO detainees can't be tried is a pretext that will usher in a scheme that is contrary to 225 years of US law. There is no middle ground when it comes to human freedom. The claim that some GITMO detainees can be held without charges and trial is an assertion I hoped never to hear in a country claiming it acts under the rule of law. Preventive detention is the road to perdition. It sets a precedent that will haunt our justice system for all time.
Gabor Rona, international legal director of Human Rights First: The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the US does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.
David Cole, professor at the Georgetown University Law Center: I don't think there is an obligation to try an enemy combatant for a war crime while the conflict is ongoing. For example, we did not try many Germans responsible for war crimes until the war was concluded, and issues of secrecy were less complicated. And I'm sure there were many we did not try at all. So I don't think there is an obligation to try. There is an obligation to ensure that anyone detained be provided a full and fair hearing on his status, that the definition of "enemy combatant" be defined narrowly, and that all detainees be treated humanely. But not that they be tried.
Brian J. Foley, visiting associate professor of law, Boston University: Ultimately this shows that the problem is that terrorism is something between crime and war. Though we know that the most effective way of combating terrorism groups is through police method, it seems akin to fighting "organized crime." Given that, then it seems that the court system we use should be geared more toward the criminal paradigm, which ultimately tests the government's claims that a person not wearing an enemy uniform has harmed, or is planning to harm, citizens.
The Obama Administration wants to be able to make those claims about people but not have them ever subjected to testing. We know that police often identify the wrong person; indeed, our court system itself is not perfect at correcting such government errors, as our history of wrongful convictions shows. So there needs to be testing of EVERY government claim that someone is planning an attack and/or is dangerous and therefore must be imprisoned. It is very often disputable whether someone is planning terrorist acts, ESPECIALLY when the only evidence is evidence gained by torture or is so-called "classified" evidence.
Under the Obama plan, a US government acting in error or in bad faith can detain forever anybody it claims is planning a terrorist attack. We have to be clear that the Administration is claiming a sweeping power with no check, a power - lifelong detention - that is rare in criminal law and rare in war (given that, unlike most wars, the GWOT will never end). The GWOT is Big Government's BFF ("best friend forever") and is the mortal enemy of democracy and human rights. This plan is the ultimate version of the government saying, "Just trust us" - a trust that is anathema to the spirit of the Founding Fathers.
The government appears afraid to take any risk at all that someone released might cause harm. But the assumption that someone might cause harm is assumption based on mere faith and belief, not on evidence. The bottom line is this makes no sense: the evidence gained by coercion is likely unreliable, and the secret evidence might be erroneous or even manufactured for political ends. Ultimately it's an epistemological question: How can you know someone is dangerous if it is based on evidence you obtained through coercion and is therefore unreliable, or if it is based on evidence you are afraid to have tested - again, we know our intelligence agencies are not perfect and make mistakes. The fact of the matter is that we have a system and a widely-held norm (among many nations and internationally) that says "prove it" to a government when the government wants to take away somebody's life or liberty. The real question at the heart of this whole dispute - a question that no one seems to want to ask openly, is, "Are we brave enough to adhere to such norm to prevent the many ills that can flow from giving the government the power to detain people indefinitely on its own say-so?" I don't think that the people arguing for this power are brave enough; I think they are cowards. Their cowardice will turn our country into something less than a democracy. "Land of the free, home of the brave" - freedom and bravery go together. You can't have freedom if you are not brave.
David Frakt, professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee: The assertion that there are 75 detainees who are too dangerous to release, but can't be prosecuted, and therefore must be held indefinitely, defies common sense.
It is true that as a matter of the law of war that during an armed conflict, a person who is detained for taking part in the armed conflict may be held until the resolution of the conflict. Each of the detainees being held has been determined in a Combatant Status Review Tribunal to have been an "enemy combatant."
This does not mean that the detainee committed a crime. It could simply mean that the detainee fought against US or allied forces when they invaded Afghanistan or was prepared to do so if they had the opportunity. The government might feel that such detainees should not be released because they would return to the battlefield in an ongoing conflict. What is more troubling is the notion that some of the detainees are believed to have committed crimes but that such crimes can't be proven in a court of law. I find this hard to believe. Virtually any association with Al Qaeda is enough to support a federal charge of material support to terrorism, which would likely lead to a lengthy prison sentence. So why can't these people be tried - because they didn't commit a crime, or because the crimes they are believed to have committed can't be proved in court? If it is that the crimes can't be proven in court, why is that? Is it because of the government's belief that all of the evidence they have against an individual would be suppressed as the product of torture? In my opinion, if the only evidence we have is derived from torture, then we can't have any degree of confidence in the reliability of such evidence.
The government has shown a willingness to try several individuals who have admittedly been tortured based on the alleged existence of independent "clean" evidence, so the mere fact that someone was tortured is clearly not a bar to prosecution in the view of the Obama Administration. If there is independent corroborating evidence, then let the individuals be tried. If there is no non-torture derived evidence, then the government should not be able to even prove by a preponderance of the evidence that an individual should be held. We have seen repeatedly in the habeas corpus litigation that the government's evidence did not hold up to judicial scrutiny.
The Administration needs to come clean on who they believe fits into this category and why. Otherwise, we are just left to speculate.
Chip Pitts, president of the Bill of Rights Defense Committee: You're right about the detention (but not necessarily right about the laws of war enabling us to hold them until "hostilities" come to an end - if by that you mean hostilities in the so-called Global War on Terror or GWOT).
The laws of war apply to the detainees variously (if at all! - don't forget that the GWOT framework is novel and legally and factually problematic in the extreme, and in my view and that of many other international lawyers and scholars it's utterly incorrect and inapplicable both in terms of the traditional law of war and in terms of human rights and constitutional law which apply even at all times even when there is no war).
Real wartime, i.e. battlefield detainees from Iraq or Afghanistan, are POWs and should rightly be seen as in a completely different legal category from civilians suspected of crime or simply rounded up and sent to GITMO, Bagram, or any of the secret prisons or interrogation sites used by the CIA, the government, and its allies. The former may be held until the end of those particular hostilities and the latter must be tried (supposedly under speedy trials as well as the other legal guarantees of fair trials) or promptly released.
You're right that indefinite detention without trial or legal due process of either category - of anyone, in fact - is outlawed both by the law of war and by international human rights law (as well as US constitutional law).
Moreover, there's no question that not all of the people now at GITMO are even accused of being criminals (war criminals or civilian criminals), all of which means that your question goes back again to the conceptual and legal framework with which we're viewing the situation; the legitimacy and legality of detention in general and indefinite detention in particular; and the individual facts of each person's case (to determine whether there are any legitimate legal grounds at all for detention and/or trial) - the interpretation of which becomes so much harder in light of the use of torture to coerce unreliable testimony.
So not even all the Constitutional experts agree precisely on the legal basis for putting a prisoner into that "fifth category" - the ones we're told can't be tried but are too dangerous to release. Largely because the Bush Administration tried to create its own law, the legal landscape is confused and confusing. But that doesn't help the Obama Administration. It still faces the question of what to do with these people.
In doing so, it faces a group - a very small group - of bad options. It can charge a person with a crime and risk being embarrassed by having tainted evidence thrown out of court. A court might also find that its evidence is insufficient or unreliable. A defendant might actually be exonerated or win on appeal - what then?
When, for one reason or another, you reject all but one of these options, you need then to accept that we are on our way to warehousing people.
For Americans, this is contrary to everything we've ever been taught about our system of justice.
Obama Channeling Bush Again?
By William Fisher
With the health care debate preoccupying the mainstream media, it has gone virtually unreported that the Obama Administration is quietly supporting renewal of provisions of the Bush-era USA Patriot Act that civil libertarians say infringe on basic freedoms.
And they are reportedly doing so over the objections of some prominent Democrats.
When a panicky Congress passed the act 45 days after the terrorist attacks of September 11, 2001, three contentious parts of the law were scheduled to expire at the end of next month, and opponents of these sections have been pushing Congress to substitute new provisions with substantially strengthened civil liberties protections.
But with the apparent approval of the Obama White House and a number of Republicans –and over the objections of liberal Senate Democrats including Russ Feingold of Wisconsin and Dick Durbin of Illinois – the Senate Judiciary Committee has voted to extend the three provisions with only minor changes.
Those provisions would leave unaltered the power of the Federal Bureau of Investigation (FBI) to seize records and to eavesdrop on phone calls and e-mail in the course of counterterrorism investigations.
The parts of the act due to expire on December 31 deal with:
National Security Letters (NSLs). The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people.
The ‘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.
FISA Amendments Act of 2008. This past summer, Congress passed a law that permits the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and
e-mails.
Asked by IPS why committee chairman Senator Patrick Leahy of Vermont and other Democrats chose to make only minor changes, Chip Pitts, president of the Bill of Rights Defense Committee, referred to “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them.” White House pressure, he speculated, “was undoubtedly a huge if lamentable factor.”
He added that some committee members were cautious because of the recent arrests of Najibullah Zazi and others.
Zazi , a citizen of Afghanistan and a legal U.S. resident, was arrested in September as part of a group accused of planning to carry out acts of terrorism against the U.S. Zazi is said by the FBI to have attended courses and received instruction on weapons and explosives at an Al Qaeda training camp in Pakistan.
Leahy acknowledged that, in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”
Pitts told IPS, “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.”
“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,” he added.
In contrast to the Senate, the House of Representatives Judiciary Committee approved a version of the legislation containing several significant reforms. In a 16-10 party-line vote, the committee’s version curbs some of the government’s controversial surveillance powers.
The Patriot Act, passed by a landslide after the 9/11 terrorist attacks to provide law enforcement and intelligence agencies additional powers to thwart terrorist activities, was reauthorized in 2005.
The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.
Judiciary Chair John Conyers, a Michigan Democrat, said the goal of the new legislation was to “craft a law that preserves both our national security and our national values.”
The proposed new legislation would permit the so-called “lone wolf” provision to sunset. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.
The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.
The proposed new House legislation would also restrict the use of national security letters. According to a Congressional Research Service report, “National security letters (NSL) are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”
Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.
The bill approved in the Senate contains much more modest reforms. It would retain the lone wolf provision, and is, in general, much more in line with the wishes of the administration. Should both bills pass and go into conference to be reconciled, it is unclear which approach would prevail.
House and Senate versions still need to be voted on by each body separately and then reconciled into a single bill to send to the president for signature.
Pitts told IPS, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”
In a report on the Patriot Act, the American Civil Liberties Union (ACLU) said, “More than seven years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious security resources.”
With the health care debate preoccupying the mainstream media, it has gone virtually unreported that the Obama Administration is quietly supporting renewal of provisions of the Bush-era USA Patriot Act that civil libertarians say infringe on basic freedoms.
And they are reportedly doing so over the objections of some prominent Democrats.
When a panicky Congress passed the act 45 days after the terrorist attacks of September 11, 2001, three contentious parts of the law were scheduled to expire at the end of next month, and opponents of these sections have been pushing Congress to substitute new provisions with substantially strengthened civil liberties protections.
But with the apparent approval of the Obama White House and a number of Republicans –and over the objections of liberal Senate Democrats including Russ Feingold of Wisconsin and Dick Durbin of Illinois – the Senate Judiciary Committee has voted to extend the three provisions with only minor changes.
Those provisions would leave unaltered the power of the Federal Bureau of Investigation (FBI) to seize records and to eavesdrop on phone calls and e-mail in the course of counterterrorism investigations.
The parts of the act due to expire on December 31 deal with:
National Security Letters (NSLs). The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people.
The ‘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.
FISA Amendments Act of 2008. This past summer, Congress passed a law that permits the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and
e-mails.
Asked by IPS why committee chairman Senator Patrick Leahy of Vermont and other Democrats chose to make only minor changes, Chip Pitts, president of the Bill of Rights Defense Committee, referred to “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them.” White House pressure, he speculated, “was undoubtedly a huge if lamentable factor.”
He added that some committee members were cautious because of the recent arrests of Najibullah Zazi and others.
Zazi , a citizen of Afghanistan and a legal U.S. resident, was arrested in September as part of a group accused of planning to carry out acts of terrorism against the U.S. Zazi is said by the FBI to have attended courses and received instruction on weapons and explosives at an Al Qaeda training camp in Pakistan.
Leahy acknowledged that, in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”
Pitts told IPS, “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.”
“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,” he added.
In contrast to the Senate, the House of Representatives Judiciary Committee approved a version of the legislation containing several significant reforms. In a 16-10 party-line vote, the committee’s version curbs some of the government’s controversial surveillance powers.
The Patriot Act, passed by a landslide after the 9/11 terrorist attacks to provide law enforcement and intelligence agencies additional powers to thwart terrorist activities, was reauthorized in 2005.
The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.
Judiciary Chair John Conyers, a Michigan Democrat, said the goal of the new legislation was to “craft a law that preserves both our national security and our national values.”
The proposed new legislation would permit the so-called “lone wolf” provision to sunset. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.
The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.
The proposed new House legislation would also restrict the use of national security letters. According to a Congressional Research Service report, “National security letters (NSL) are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”
Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.
The bill approved in the Senate contains much more modest reforms. It would retain the lone wolf provision, and is, in general, much more in line with the wishes of the administration. Should both bills pass and go into conference to be reconciled, it is unclear which approach would prevail.
House and Senate versions still need to be voted on by each body separately and then reconciled into a single bill to send to the president for signature.
Pitts told IPS, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”
In a report on the Patriot Act, the American Civil Liberties Union (ACLU) said, “More than seven years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious security resources.”
Wednesday, November 18, 2009
When Does Obama’s Transparency Begin?
By William Fisher
A court case accusing the government of indiscriminately wiretapping ordinary American citizens – coupled with legislation now making its way through Congress – could produce another major headache for President Obama.
The central issue in the latest court case is the government’s use of the so-called “State Secrets Privilege” – the claim that presenting certain evidence in open court would endanger U.S. national security – to suppress evidence of government wrongdoing.
Both the Bush and Obama administrations have invoked the privilege numerous times not simply to suppress particular pieces of evidence – its original intent -- but to have entire lawsuits thrown out altogether.
President Obama’s headache may stem from his pledges -- both during the campaign and currently -- that he would make open government and transparency the hallmarks of his administration. But, in court cases, his lawyers have followed paths identical to those used by George W. Bush’s Justice Department. This approach to secrecy, manifested in his use of the state secrets doctrine, has triggered widespread disappointment among the progressive wing of his supporters.
These supporters are pushing hard for passage of legislation now wending its way through congress that would impose stricter limits on use of the privilege. Obama has not yet endorsed either the Senate or the House legislation.
But, according to Kevin Bankston, an attorney with the Electronic Frontier Foundation (EFF), advocates for both bills are working closely with the White House and it is likely that a bill will emerge that Obama would be comfortable signing.
However, given the legislative calendar for the rest of this session of Congress, whether the legislation will come up for a vote in this sessions remains unclear. And gaining bipartisan support, especially in the Senate, will likely be an uphill hike.
In the latest case, Shubert v. Obama, a class action brought by three Brooklyn residents, the claim is that the National Security Agency (NSA) has an ongoing dragnet surveillance program spying on the telephone and
e-mail communications of ordinary Americans. The case was originally filed in 2007 and recently amended.
The government moved to dismiss the case based on state secrecy – the first use of the state secrets privilege under the Obama Administration's "new" state secrets policy. Attorney General Eric Holder, whose Department of Justice (DOJ) has been conducting a review of the state secrets policy, explained the use of the privilege in the Shubert case.
He said, “The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.”
But critics were quick to challenge him.
Attorney Bankston said that in the Obama’s court filing, it “attempted to dress up in new clothes its embrace of one of the worst Bush Administration positions — that courts cannot be allowed to review the National Security Agency's massive, well-documented program of warrantless surveillance. In doing so it demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege.”
He added, “The motion amounted to a rehashing of the exact same state secrecy arguments originated by the Bush Administration and pressed by the Obama Administration…that any attempt to have the courts rule on the legality of the NSA program would harm national security and that the courts should be blocked from considering whether the surveillance is legal or constitutional.”
The San Francisco-based Electronic Frontier Foundation focuses on issues of free speech, privacy, innovation, and consumer rights, and has brought many of the lawsuits challenging govenrment secrecy.
Meanwhile, Congressional efforts to curb the use of the state secrets privilege were moving through the House and Senate. In the Senate, the State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if "public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States."
The bill has been approved by the Senate Judiciary Committee, whose chairman, Democratic Senator Pat Leahy of Vermont, has been a long-time advocate of the measure. The bill was introduced by Leahy, along with felloe Democrats Arlen Specter of Pennsylvania, Russ Feingold of Wisconsin, and, shortly before his death, Edward M. Kennedy of Massachusetts.
In the House, the Judiciary Committee is taking the first steps considering a similar reform measure the form of the State Secret Protection Act of
2009. Its sponsors include Democratic Congressmembers Jerrold Nadler of New York, Thomas Petri of Wisconsin, Judiciary Chairman John Conyers, Jr. of Michigan, Bill Delahunt of Massachusetts, and Zoe Lofgren of California.
Nadler, the powerful Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, was sharply critical of the DOJ action in the Shubert case.
"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a
reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler.
Some of Obama’s most steadfast supporters have publicly disagreed with the president on this issue. For example, Senator Russ Feingold produced a “report card” on Obama’s first hundred days in office and cited the fact that Obama had invoked the state secrets privilege in three cases. He gave Obama a "D" on state secrets, and characterized his record as "troubling."
Obama’s pledge to make the government more open and accountable, coupled with his use of the state secrets privilege and other actions resulting in limiting transparency, have left many of his progressive supporters disappointed.
During his campaign for the presidency, the Obama-Biden website included state secrets as part of "The Problem" that President Obama would address, complaining that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Yet in his first 100 days, the Obama administration invoked the state secrets privilege in three cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA. In each of these cases, the Obama’s lawyers DOJ followed exactly the same reasoning as Bush’s.
The Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA). Following Obama’s election, DOJ lawyers took the same position as their predecessors.
The same is true in another case, Jewel v. NSA, in which the Electronic Frontier Foundation (EFF) is suing the NSA and other government agencies on behalf of AT&T customers to stop what it calls the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
In April, the Obama administration moved to dismiss Jewel, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets,” and that they were immune from suit. These are essentially the same arguments made by the Bush administration.
In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – are suing a Boeing subsidiary called Jeppesen DataPlan for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process. In this case, a federal appeals court has rejected the Obama Administration’s assertion of state secrets and ruled that the case can go forward.
And, in one of the rare occasions where judges reject the government assertion of state secrets, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.
The first known use of the state secrets privilege came in a 1953 case called United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have said that the government abused secrecy in this landmark case, which was not about national security but about protecting the incompetence of government officials.
Since then, the privilege was rarely used until the administration of George W. Bush, which is generally regarded as one of the most secretive presidencies in U.S. history. The Bush Administration invoked the state secrets doctrine numerous times in a variety of cases. Some of the best known include:
Sibel Edmonds: The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower. Edmonds took her case all the way to the Supreme Court, and lost.
Khalid El-Masri: In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.
Maher Arar: The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim, sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the United States District Court for the Eastern District of New York. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.
In the Shubert wiretapping case, the appellants claim the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and Internet communications without a warrant and without any suspicion that the targets have done anything wrong.
Allegations that this was actually occurring was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds.
Another whistleblower, former NSA Intelligence Analyst Russell Tice, told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”
The Jewel case is still pending in the same federal district court in California where the Shubert case has been filed. Oral arguments in the government’s motion to dismiss the Shubert case are scheduled for December 15 before Judge Vaughn R. Walker.
The Obama Administration’s approach to open government has disappointed its supporters in other way as well as in court. For example, just last week,
the government filed a brief in which Secretary of Defense Robert Gates invoked his authority to block the release of photos depicting the abuse of detainees in U.S. custody overseas.
The development came as part of a five-year-old Freedom of Information lawsuit brought by the American Civil Liberties Union (ACLU) demanding the release of records, including photographs, related to the abuse of prisoners. Secretary Gates was granted the authority to exempt certain images from disclosure under the Freedom of Information Act (FOIA) as part of the Homeland Security appropriations bill signed by President Obama last month.
An amendment to the bill grants the Defense Secretary authority to suppress certain photographs deemed harmful to national security. After the bill was signed into law, the ACLU urged Gates not to invoke the authority to block the release of the photos.
“Unfortunately, not only did Secretary Gates invoke the authority, but his blanket certification states that it applies to all of the photos, failing to provide the individualized assessment that the amendment's language requires. The government also failed to provide any basis for the claim that disclosure of the photos would harm national security,” the ACLU said in a statement.” The organization said it plans to file a responsive brief.
On the issue of government transparency in general, it appears that policy-makers on both sides of the aisle, as well as the public at large, are still trying to figure out how their new president thinks about such issues.
His supporters were cheered by his release of the so-called “torture memos” prepared by the Bush Administration’s Office of Legal Counsel. But they were dismayed by his cool reception to a “truth commission” to investigate possible crimes committed by the previous administration, his declaration that there would be no prosecutions of CIA officers who used what they believed to be legal interrogation techniques, and his oft-expressed wish to look forward, not backward.
And they continue to be baffled by his continuing use of the state secrets defense, wondering whether his objective is protecting national security, shielding Bush Administration officials from accountability, or preserving this executive prerogative for himself and future presidents.
A court case accusing the government of indiscriminately wiretapping ordinary American citizens – coupled with legislation now making its way through Congress – could produce another major headache for President Obama.
The central issue in the latest court case is the government’s use of the so-called “State Secrets Privilege” – the claim that presenting certain evidence in open court would endanger U.S. national security – to suppress evidence of government wrongdoing.
Both the Bush and Obama administrations have invoked the privilege numerous times not simply to suppress particular pieces of evidence – its original intent -- but to have entire lawsuits thrown out altogether.
President Obama’s headache may stem from his pledges -- both during the campaign and currently -- that he would make open government and transparency the hallmarks of his administration. But, in court cases, his lawyers have followed paths identical to those used by George W. Bush’s Justice Department. This approach to secrecy, manifested in his use of the state secrets doctrine, has triggered widespread disappointment among the progressive wing of his supporters.
These supporters are pushing hard for passage of legislation now wending its way through congress that would impose stricter limits on use of the privilege. Obama has not yet endorsed either the Senate or the House legislation.
But, according to Kevin Bankston, an attorney with the Electronic Frontier Foundation (EFF), advocates for both bills are working closely with the White House and it is likely that a bill will emerge that Obama would be comfortable signing.
However, given the legislative calendar for the rest of this session of Congress, whether the legislation will come up for a vote in this sessions remains unclear. And gaining bipartisan support, especially in the Senate, will likely be an uphill hike.
In the latest case, Shubert v. Obama, a class action brought by three Brooklyn residents, the claim is that the National Security Agency (NSA) has an ongoing dragnet surveillance program spying on the telephone and
e-mail communications of ordinary Americans. The case was originally filed in 2007 and recently amended.
The government moved to dismiss the case based on state secrecy – the first use of the state secrets privilege under the Obama Administration's "new" state secrets policy. Attorney General Eric Holder, whose Department of Justice (DOJ) has been conducting a review of the state secrets policy, explained the use of the privilege in the Shubert case.
He said, “The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.”
But critics were quick to challenge him.
Attorney Bankston said that in the Obama’s court filing, it “attempted to dress up in new clothes its embrace of one of the worst Bush Administration positions — that courts cannot be allowed to review the National Security Agency's massive, well-documented program of warrantless surveillance. In doing so it demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege.”
He added, “The motion amounted to a rehashing of the exact same state secrecy arguments originated by the Bush Administration and pressed by the Obama Administration…that any attempt to have the courts rule on the legality of the NSA program would harm national security and that the courts should be blocked from considering whether the surveillance is legal or constitutional.”
The San Francisco-based Electronic Frontier Foundation focuses on issues of free speech, privacy, innovation, and consumer rights, and has brought many of the lawsuits challenging govenrment secrecy.
Meanwhile, Congressional efforts to curb the use of the state secrets privilege were moving through the House and Senate. In the Senate, the State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if "public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States."
The bill has been approved by the Senate Judiciary Committee, whose chairman, Democratic Senator Pat Leahy of Vermont, has been a long-time advocate of the measure. The bill was introduced by Leahy, along with felloe Democrats Arlen Specter of Pennsylvania, Russ Feingold of Wisconsin, and, shortly before his death, Edward M. Kennedy of Massachusetts.
In the House, the Judiciary Committee is taking the first steps considering a similar reform measure the form of the State Secret Protection Act of
2009. Its sponsors include Democratic Congressmembers Jerrold Nadler of New York, Thomas Petri of Wisconsin, Judiciary Chairman John Conyers, Jr. of Michigan, Bill Delahunt of Massachusetts, and Zoe Lofgren of California.
Nadler, the powerful Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, was sharply critical of the DOJ action in the Shubert case.
"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a
reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler.
Some of Obama’s most steadfast supporters have publicly disagreed with the president on this issue. For example, Senator Russ Feingold produced a “report card” on Obama’s first hundred days in office and cited the fact that Obama had invoked the state secrets privilege in three cases. He gave Obama a "D" on state secrets, and characterized his record as "troubling."
Obama’s pledge to make the government more open and accountable, coupled with his use of the state secrets privilege and other actions resulting in limiting transparency, have left many of his progressive supporters disappointed.
During his campaign for the presidency, the Obama-Biden website included state secrets as part of "The Problem" that President Obama would address, complaining that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Yet in his first 100 days, the Obama administration invoked the state secrets privilege in three cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA. In each of these cases, the Obama’s lawyers DOJ followed exactly the same reasoning as Bush’s.
The Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA). Following Obama’s election, DOJ lawyers took the same position as their predecessors.
The same is true in another case, Jewel v. NSA, in which the Electronic Frontier Foundation (EFF) is suing the NSA and other government agencies on behalf of AT&T customers to stop what it calls the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
In April, the Obama administration moved to dismiss Jewel, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets,” and that they were immune from suit. These are essentially the same arguments made by the Bush administration.
In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – are suing a Boeing subsidiary called Jeppesen DataPlan for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process. In this case, a federal appeals court has rejected the Obama Administration’s assertion of state secrets and ruled that the case can go forward.
And, in one of the rare occasions where judges reject the government assertion of state secrets, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.
The first known use of the state secrets privilege came in a 1953 case called United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have said that the government abused secrecy in this landmark case, which was not about national security but about protecting the incompetence of government officials.
Since then, the privilege was rarely used until the administration of George W. Bush, which is generally regarded as one of the most secretive presidencies in U.S. history. The Bush Administration invoked the state secrets doctrine numerous times in a variety of cases. Some of the best known include:
Sibel Edmonds: The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower. Edmonds took her case all the way to the Supreme Court, and lost.
Khalid El-Masri: In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.
Maher Arar: The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim, sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the United States District Court for the Eastern District of New York. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.
In the Shubert wiretapping case, the appellants claim the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and Internet communications without a warrant and without any suspicion that the targets have done anything wrong.
Allegations that this was actually occurring was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds.
Another whistleblower, former NSA Intelligence Analyst Russell Tice, told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”
The Jewel case is still pending in the same federal district court in California where the Shubert case has been filed. Oral arguments in the government’s motion to dismiss the Shubert case are scheduled for December 15 before Judge Vaughn R. Walker.
The Obama Administration’s approach to open government has disappointed its supporters in other way as well as in court. For example, just last week,
the government filed a brief in which Secretary of Defense Robert Gates invoked his authority to block the release of photos depicting the abuse of detainees in U.S. custody overseas.
The development came as part of a five-year-old Freedom of Information lawsuit brought by the American Civil Liberties Union (ACLU) demanding the release of records, including photographs, related to the abuse of prisoners. Secretary Gates was granted the authority to exempt certain images from disclosure under the Freedom of Information Act (FOIA) as part of the Homeland Security appropriations bill signed by President Obama last month.
An amendment to the bill grants the Defense Secretary authority to suppress certain photographs deemed harmful to national security. After the bill was signed into law, the ACLU urged Gates not to invoke the authority to block the release of the photos.
“Unfortunately, not only did Secretary Gates invoke the authority, but his blanket certification states that it applies to all of the photos, failing to provide the individualized assessment that the amendment's language requires. The government also failed to provide any basis for the claim that disclosure of the photos would harm national security,” the ACLU said in a statement.” The organization said it plans to file a responsive brief.
On the issue of government transparency in general, it appears that policy-makers on both sides of the aisle, as well as the public at large, are still trying to figure out how their new president thinks about such issues.
His supporters were cheered by his release of the so-called “torture memos” prepared by the Bush Administration’s Office of Legal Counsel. But they were dismayed by his cool reception to a “truth commission” to investigate possible crimes committed by the previous administration, his declaration that there would be no prosecutions of CIA officers who used what they believed to be legal interrogation techniques, and his oft-expressed wish to look forward, not backward.
And they continue to be baffled by his continuing use of the state secrets defense, wondering whether his objective is protecting national security, shielding Bush Administration officials from accountability, or preserving this executive prerogative for himself and future presidents.
Tuesday, November 17, 2009
MILITARY TRIBUNALS – JUSTICE ‘LITE’?
By William Fisher
While Sarah Palin and other right-wing opportunists create a cottage industry in drumming up public hysteria about Khalid Sheik Mohammed and four other terror suspects from Guantanamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the “new and improved” Military Commissions designated to try five other detainees.
And some are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at GITMO ever since – is slated to be one of the “five others” to be tried before Military Commissions.
The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.
Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.
Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.
The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”
The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations. In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.
In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court heard the case on November 13, 2009 and their decision is pending.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.
Last week, on the same day Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return.
Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.
The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He said, “I know that the Department of Defense is absolutely committed to ensuring that military commission trials will be consistent with our highest standards as a nation, and our civilian prosecutors will continue to work closely with military prosecutors to support them in that effort.”
But many disagree -- fiercely. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.
Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”
He is also unclear about the rationale for a system of parallel justice. He says, “The Administration's justifications for which cases are being send to federal court and which cases to military commissions don't stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war. In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before.”
Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.
“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”
He continued: “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 us, “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.”
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.”
Frakt believes that the criteria being used by the Justice Department to decide between civilian courts or military commissions is entirely opportunistic.
He told us, “It is clear that a significant criteria in determining who gets tried in federal court is the Justice Department's confidence that they can secure a conviction and a death sentence. How many times did Attorney General Holder express in his press conference his confidence of a "successful outcome?"
But those kinds of statements, Frakt contends, constitute “a blatant violation of the ABA Criminal Justice Standards.”
Frakt says, “From the AG's perspective, the only possible successful outcome for the alleged 9/11 plotters is a death sentence, so he was all but guaranteeing that result.” The ABA rules “expressly prohibit prosecutors from making public statements predicting convictions, or expressing an opinion of the merits of the case or the guilt of the defendant. AG Holder repeatedly violated these rules during his press conference by expressing confidence that there would be no acquittal and that there would be a successful outcome.”
Frakt goes on to criticize the government’s approach to detention writ large. He told us, “In the extremely unlikely event of an acquittal, the AG has made it clear that the government will not release anyone they believe to pose a continuing security threat to the U.S. In that sense, these trials are a fraud because the government plans indefinite detention regardless of the outcome of the trial. Because they know that the idea of indefinite detention is unpalatable to many liberals, they are hoping to avoid the issue (and legitimize the prior illegal long-term detention) with criminal convictions.”
Frakt says he still does not accept that there is a category of people who are too dangerous to be release, but yet can't be tried. He says, “Neither the Bush Administration nor the Obama Administration has ever identified any such individual despite alleging the existence of such individuals for years.”
He suggests that, “Perhaps the only possible example of an individual who might fit in this group is Mr. al Qatani, the alleged 20th hijacker, who was charged as the 6th 9/11 co-conspirator in January 2008. However, Susan Crawford, the military commissions convening authority refused to refer the charges to trial, claiming that she was unwilling to try someone who had been demonstrably been tortured.”
But Frakt charges that even this standard is inconsistent. He reminded us that Ms, Crawford also “referred charges to trial against several other individuals who had also been tortured, including Mr. al Nashiri and KSM, suggesting that neither she nor the Justice Department see prior torture as a bar to prosecution. My belief is that if the government has sufficient reliable evidence that an individual is a dangerous terrorist to justify holding them forever, then they should be able to prove the individual's involvement in a court of law.”
Frakt is far from the only critic of Military Commissions. As Dafna Linzer points out in ProPublica, the evidence against those scheduled to be tried by Military Commission “is flimsy.” She writes that most of the remaining Guantánamo detainees “are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.”
She adds, “One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.”
Prof. Francis Boyle of the University of Illinois law school told us, “The Canadian child soldier Omar Khadr gets processed by an Obama Kangaroo Court in violation of the Optional Protocol to the Children’s Convention on that subject, to which both the United States and Canada are contracting parties. Obama/Holder’s hypocrisy and double standards speak for themselves.”
Deborah Perlstein, formerly with Human Rights First and now at the Woodrow Wilson School for Public and International Affairs at Princeton University, points out that, “The Supreme Court has consistently recognized that our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited.”
She writes, “As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)?
“And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998.”
She concludes, “Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.”
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told us, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Gabor Rona, international legal director of Human Rights First, told us, “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.”
The ACLU’s Jameel Jaffer said: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”
And David Danzig of Human Rights First said, “Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem evermore remote.”
Vincent Warren, the head of the Center for Constitutional Rights – which has mobilized dozens of pro bono lawyers to defend GITMO detainees – probably summed up where the Obama Administration is now on the issue of detention.
He said, “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.”
Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality. In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush Administration to try terror suspects at Guantanamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war.” But the MCA was also declared unconstitutional two years later.
While litigation was ongoing – and that was virtually constant – trials at Guantanamo came to a complete standstill. That is a major reason that there were only three trials in eight years.
Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.
While Sarah Palin and other right-wing opportunists create a cottage industry in drumming up public hysteria about Khalid Sheik Mohammed and four other terror suspects from Guantanamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the “new and improved” Military Commissions designated to try five other detainees.
And some are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at GITMO ever since – is slated to be one of the “five others” to be tried before Military Commissions.
The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.
Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.
Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.
The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”
The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations. In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.
In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court heard the case on November 13, 2009 and their decision is pending.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.
Last week, on the same day Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return.
Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.
The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He said, “I know that the Department of Defense is absolutely committed to ensuring that military commission trials will be consistent with our highest standards as a nation, and our civilian prosecutors will continue to work closely with military prosecutors to support them in that effort.”
But many disagree -- fiercely. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.
Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”
He is also unclear about the rationale for a system of parallel justice. He says, “The Administration's justifications for which cases are being send to federal court and which cases to military commissions don't stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war. In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before.”
Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.
“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”
He continued: “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 us, “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.”
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.”
Frakt believes that the criteria being used by the Justice Department to decide between civilian courts or military commissions is entirely opportunistic.
He told us, “It is clear that a significant criteria in determining who gets tried in federal court is the Justice Department's confidence that they can secure a conviction and a death sentence. How many times did Attorney General Holder express in his press conference his confidence of a "successful outcome?"
But those kinds of statements, Frakt contends, constitute “a blatant violation of the ABA Criminal Justice Standards.”
Frakt says, “From the AG's perspective, the only possible successful outcome for the alleged 9/11 plotters is a death sentence, so he was all but guaranteeing that result.” The ABA rules “expressly prohibit prosecutors from making public statements predicting convictions, or expressing an opinion of the merits of the case or the guilt of the defendant. AG Holder repeatedly violated these rules during his press conference by expressing confidence that there would be no acquittal and that there would be a successful outcome.”
Frakt goes on to criticize the government’s approach to detention writ large. He told us, “In the extremely unlikely event of an acquittal, the AG has made it clear that the government will not release anyone they believe to pose a continuing security threat to the U.S. In that sense, these trials are a fraud because the government plans indefinite detention regardless of the outcome of the trial. Because they know that the idea of indefinite detention is unpalatable to many liberals, they are hoping to avoid the issue (and legitimize the prior illegal long-term detention) with criminal convictions.”
Frakt says he still does not accept that there is a category of people who are too dangerous to be release, but yet can't be tried. He says, “Neither the Bush Administration nor the Obama Administration has ever identified any such individual despite alleging the existence of such individuals for years.”
He suggests that, “Perhaps the only possible example of an individual who might fit in this group is Mr. al Qatani, the alleged 20th hijacker, who was charged as the 6th 9/11 co-conspirator in January 2008. However, Susan Crawford, the military commissions convening authority refused to refer the charges to trial, claiming that she was unwilling to try someone who had been demonstrably been tortured.”
But Frakt charges that even this standard is inconsistent. He reminded us that Ms, Crawford also “referred charges to trial against several other individuals who had also been tortured, including Mr. al Nashiri and KSM, suggesting that neither she nor the Justice Department see prior torture as a bar to prosecution. My belief is that if the government has sufficient reliable evidence that an individual is a dangerous terrorist to justify holding them forever, then they should be able to prove the individual's involvement in a court of law.”
Frakt is far from the only critic of Military Commissions. As Dafna Linzer points out in ProPublica, the evidence against those scheduled to be tried by Military Commission “is flimsy.” She writes that most of the remaining Guantánamo detainees “are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.”
She adds, “One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.”
Prof. Francis Boyle of the University of Illinois law school told us, “The Canadian child soldier Omar Khadr gets processed by an Obama Kangaroo Court in violation of the Optional Protocol to the Children’s Convention on that subject, to which both the United States and Canada are contracting parties. Obama/Holder’s hypocrisy and double standards speak for themselves.”
Deborah Perlstein, formerly with Human Rights First and now at the Woodrow Wilson School for Public and International Affairs at Princeton University, points out that, “The Supreme Court has consistently recognized that our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited.”
She writes, “As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)?
“And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998.”
She concludes, “Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.”
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told us, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Gabor Rona, international legal director of Human Rights First, told us, “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.”
The ACLU’s Jameel Jaffer said: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”
And David Danzig of Human Rights First said, “Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem evermore remote.”
Vincent Warren, the head of the Center for Constitutional Rights – which has mobilized dozens of pro bono lawyers to defend GITMO detainees – probably summed up where the Obama Administration is now on the issue of detention.
He said, “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.”
Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality. In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush Administration to try terror suspects at Guantanamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war.” But the MCA was also declared unconstitutional two years later.
While litigation was ongoing – and that was virtually constant – trials at Guantanamo came to a complete standstill. That is a major reason that there were only three trials in eight years.
Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.
Sunday, November 15, 2009
Holder Terror Trials Decision Triggers Praise, Condemnation, Confusion
By William Fisher
The U.S. Government’s decision to bring five high-profile terror suspects to the United States to face trials in a civilian court is triggering reactions that continue to bounce from praise to condemnation to confusion.
While human rights advocates are generally applauding the decision to conduct trials in federal court in New York they are at the same time strongly criticizing the Justice Department for keeping the Military Commissions in place to try some suspects.
There appears to be confusion about how the government is making its decisions about which courts to choose for which defendants. This process remains unclear despite prolonged media questioning of Attorney General Eric Holder at his press conference at the Justice Department on Friday.
Holder announced at that press conference that five suspects allegedly involved in the terrorist attacks of September 11, 2001, would be tried in New York, while five others would be tried before Military Commissions.
The New York trials would include that of the self-proclaimed 9/11 mastermind, Khalid Sheik Mohammed.
And at a partisan political level, members of congress and other Washington heavyweights are either praising Attorney General Holder’s decision or labeling it as handing a victory to Al Qaeda while raising dire security risks for U.S. neighborhoods.
Said House Republican Leader John Boehner of Ohio, “This decision is further evidence that the White House is reverting to a dangerous pre-9/11 mentality -- treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America's terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.'
U.S. Senate Republican Leader Mitch McConnell echoed the same theme. He said, “This misguided decision is based on the false belief that the terrorists who killed 3,000 Americans in one day on U.S. soil are common criminals -- not war criminals. But there are needless risks from this decision: classified information can be inadvertently leaked, as it was in the first World Trade Center trial; our cities will face enormous security problems; and our communities will be potential targets for attack.''
Connecticut Sen. Joe Lieberman, former Democrat elected in 2006 as an independent, said, “The terrorists who planned, participated in, and aided the Sept. 11, 2001 attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts. [They] should therefore be tried by military commission rather than in civilian courts in the United States.''
Other politicians appeared to waste no time locating a camera to respond to Holder’s decisions. On her Facebook page, former Alaska Gov. Sarah Palin President Obama and Attorney General Eric Holder.
In a Friday post titled, "Obama Administration's Atrocious Decision," Palin wrote: "Horrible decision, absolutely horrible. It is devastating for so many of us to hear that the Obama Administration decided that the 9/11 terrorist mastermind, Khalid Sheikh Mohammed, will be given a criminal trial in New York. This is an atrocious decision."
She expressed concern that the alleged mastermind "may walk away from this trial without receiving just punishment because of a 'hung jury' or from any variety of court room technicalities. If we are stuck with this terrible Obama Administration decision, I, like most Americans, hope that Mohammed and his co-conspirators are convicted. Hang ‘em high."
President Barack Obama, on an Asian trip, said in Tokyo, “This is a prosecutorial decision as well as a national security decision. Here's the thing that I will say: I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it.''
Families of those who lost loved ones in the 9/11 attacks also expressed mixed emotions about the New York trials.
Military Families United, a Washington D.C. based advocacy group, said, “This decision is a victory for those who perpetrated the attacks of Sept. 11, 2001, not the American people. . . The Sept. 11 accomplices will now receive many of the same constitutional rights and privileges as ordinary Americans.''
But families represented by Kristin Breitweiser, who lost her husband in the World Trade Center attack and who helped push for the establishment of the 9/11 Commission, says New York is ready. She says she plans to attend the trial as often as she can.
“I think New Yorkers are certainly more than capable of handling it. And I think, again, it speaks to the very heart of who we are, not only as New Yorkers, but as American citizens. You know, if a crime is committed on our soil, you are going to be given a trial. You will be given access to an attorney. You'll be innocent until proven guilty,” she said.
Mayor Michael R. Bloomberg of New York said, "It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered."
Numerous human rights leaders and legal scholars have weighed in with opinions on the Holder decision, and have focused largely on the continuing role of military commissions.
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Another critic of the military commission system is Air Force Reserve Lt. Col. David Frakt, who served as a military defense counsel to a Guantanamo detainee.
He told IPS, “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.” Frakt now teaches law at Western State University in California.
During the administration of President George W. Bush, Guantanamo became for many a worldwide symbol of U.S. lawlessness and brutality in the treatment of prisoners. The system of justice set up there was rejected by the U.S. Supreme Court multiple times. Many of the unlawful acts committed at Guantanamo were later found at Abu Ghraib prison in Iraq, at Bagram Air Base in Afghanistan, and in other U.S. detention facilities. Despite multiple military investigations, no senior American was ever charged or convicted of wrongdoing.
The U.S. Government’s decision to bring five high-profile terror suspects to the United States to face trials in a civilian court is triggering reactions that continue to bounce from praise to condemnation to confusion.
While human rights advocates are generally applauding the decision to conduct trials in federal court in New York they are at the same time strongly criticizing the Justice Department for keeping the Military Commissions in place to try some suspects.
There appears to be confusion about how the government is making its decisions about which courts to choose for which defendants. This process remains unclear despite prolonged media questioning of Attorney General Eric Holder at his press conference at the Justice Department on Friday.
Holder announced at that press conference that five suspects allegedly involved in the terrorist attacks of September 11, 2001, would be tried in New York, while five others would be tried before Military Commissions.
The New York trials would include that of the self-proclaimed 9/11 mastermind, Khalid Sheik Mohammed.
And at a partisan political level, members of congress and other Washington heavyweights are either praising Attorney General Holder’s decision or labeling it as handing a victory to Al Qaeda while raising dire security risks for U.S. neighborhoods.
Said House Republican Leader John Boehner of Ohio, “This decision is further evidence that the White House is reverting to a dangerous pre-9/11 mentality -- treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America's terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.'
U.S. Senate Republican Leader Mitch McConnell echoed the same theme. He said, “This misguided decision is based on the false belief that the terrorists who killed 3,000 Americans in one day on U.S. soil are common criminals -- not war criminals. But there are needless risks from this decision: classified information can be inadvertently leaked, as it was in the first World Trade Center trial; our cities will face enormous security problems; and our communities will be potential targets for attack.''
Connecticut Sen. Joe Lieberman, former Democrat elected in 2006 as an independent, said, “The terrorists who planned, participated in, and aided the Sept. 11, 2001 attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts. [They] should therefore be tried by military commission rather than in civilian courts in the United States.''
Other politicians appeared to waste no time locating a camera to respond to Holder’s decisions. On her Facebook page, former Alaska Gov. Sarah Palin President Obama and Attorney General Eric Holder.
In a Friday post titled, "Obama Administration's Atrocious Decision," Palin wrote: "Horrible decision, absolutely horrible. It is devastating for so many of us to hear that the Obama Administration decided that the 9/11 terrorist mastermind, Khalid Sheikh Mohammed, will be given a criminal trial in New York. This is an atrocious decision."
She expressed concern that the alleged mastermind "may walk away from this trial without receiving just punishment because of a 'hung jury' or from any variety of court room technicalities. If we are stuck with this terrible Obama Administration decision, I, like most Americans, hope that Mohammed and his co-conspirators are convicted. Hang ‘em high."
President Barack Obama, on an Asian trip, said in Tokyo, “This is a prosecutorial decision as well as a national security decision. Here's the thing that I will say: I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it.''
Families of those who lost loved ones in the 9/11 attacks also expressed mixed emotions about the New York trials.
Military Families United, a Washington D.C. based advocacy group, said, “This decision is a victory for those who perpetrated the attacks of Sept. 11, 2001, not the American people. . . The Sept. 11 accomplices will now receive many of the same constitutional rights and privileges as ordinary Americans.''
But families represented by Kristin Breitweiser, who lost her husband in the World Trade Center attack and who helped push for the establishment of the 9/11 Commission, says New York is ready. She says she plans to attend the trial as often as she can.
“I think New Yorkers are certainly more than capable of handling it. And I think, again, it speaks to the very heart of who we are, not only as New Yorkers, but as American citizens. You know, if a crime is committed on our soil, you are going to be given a trial. You will be given access to an attorney. You'll be innocent until proven guilty,” she said.
Mayor Michael R. Bloomberg of New York said, "It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered."
Numerous human rights leaders and legal scholars have weighed in with opinions on the Holder decision, and have focused largely on the continuing role of military commissions.
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Another critic of the military commission system is Air Force Reserve Lt. Col. David Frakt, who served as a military defense counsel to a Guantanamo detainee.
He told IPS, “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.” Frakt now teaches law at Western State University in California.
During the administration of President George W. Bush, Guantanamo became for many a worldwide symbol of U.S. lawlessness and brutality in the treatment of prisoners. The system of justice set up there was rejected by the U.S. Supreme Court multiple times. Many of the unlawful acts committed at Guantanamo were later found at Abu Ghraib prison in Iraq, at Bagram Air Base in Afghanistan, and in other U.S. detention facilities. Despite multiple military investigations, no senior American was ever charged or convicted of wrongdoing.
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