By William Fisher
As the world yesterday marked the beginning of the ninth year of detention at the U.S. Navy base at Guantánamo Bay, Cuba, a leading legal advocacy group filed suit against the Library of Congress for firing Guantanamo’s former chief prosecutor for writing articles criticizing the use of military commissions to try suspected terrorists.
Col. Morris Davis, who was employed at Library's Congressional Research Service (CRS), resigned as the military commissions' chief prosecutor in October 2007, and became an outspoken critic of the commissions, including writing articles, giving speeches, and testifying before Congress that the system is fundamentally flawed.
In the lawsuit, the brought by the American Civil Liberties Union (ACLU), alleges that Davis was fired because he wrote articles critical of the commissions. The ACLU contends that the discharge violates Davis's rights of free speech and due process.
The ACLU lawsuit came as advocacy groups in several parts of the world conducted events to mark the eighth anniversary of the first detainees arriving for imprisonment without charge or trial at Guantánamo. The first batch of 20 prisoners arrived in Cuba in January 2002, after a 20-hour flight from Afghanistan, to be housed in what would grow into the controversial Guántanamo Bay detention center.
In Washington, human rights advocates and lawyers of the detained men held a rally, a march, and a public briefing to outline current issues related to Guántanamo. They demanded that the president make good on his pledge to close the prison, and declared their opposition to any plan for holding prisoners without charge or trial in the U.S.
Formerly detained men and detainee families addressed President Obama via a combination of video, audio, and written letters.
Lakhdar Boumediene called in to the briefing at the National Press Club from his home in France, and Omar Deghayes joined the briefing from his home in the United Kingdom. Boumediene was the lead plaintiff in the landmark Supreme Court case of 2008, Boumediene v. Bush, in which the Court affirmed that Guantànamo detainees have the right to file writs of habeas corpus in U.S. federal courts. He was released on May 15, 2009. As a child, Omar Deghayes settled with his family in the U.K. as a refugee from Libia. Picked up in Pakistan and sent to Bagram and Guantánamo, he was blinded in one eye at the base in 2004. Deghayes was released from Guantanamo to the U.K. on December 19, 2007.
Detainee lawyers and human rights activists from the Center for Constitutional Rights (CCR) and Human Rights Watch (HRW) spoke of “Obama’s Guantánamo,” addressing issues including “the continued and worsening lack of transparency, resettlement for men who cannot return to their home countries, the threat of indefinite detention schemes in the U.S., and the halt of transfers to Yemen and related responses to the recent terrorism attempt.”
CCR attorney Shayana Kadidal told IPS, “Right now, more than half of the detainees at Guantanamo – over 130 of the 198 left – are cleared for release, having spent eight years in detention. The most helpful thing President Obama can say now about the prison is simply that it is full of men who never should have been there in the first place.”
He said failure to admit error was “a hallmark of the Bush administration,” adding, “Obama’s failure to announce what everyone elsewhere in the world already understands -- that men are wrongfully detained at Gitmo – has allowed his opponents to claim that the men left are “suspected terrorists” representing the ‘hard core’ of the original population. Those claims are absurd but they serve to create resistance to resettling (at home and abroad) detainees who need asylum from home countries that torture, to sending innocent men back to Yemen because of the wrongful acts of others in that country, and to bringing the cases of the few who will be prosecuted into the federal courts for that purpose.”
“Obama’s failure to assert leadership by countering the other side’s misinformation and clearly saying that we have made mistakes in detaining men at Guantanamo has allowed the other side to spread misinformation and set the agenda, and has done incalculable damage to his efforts to close Guantanamo,” he declared.
Frida Berrigan, a Brooklyn, NY organizer with a group known as Witness Against Torture (WAT), said, “I do not relish the idea of fasting. But, President Obama’s promises of change have atrophied into empty rhetoric. Our Fast and Vigil for Justice is a small attempt to answer the ultimate question Guantánamo poses: how do we conquer fear and remain human?”
Earlier, WAT members held a rally in front of the White House to protest the lack of progress toward justice for detainees since Obama took office and demanded “true change” from the administration.
The ACLU lawsuit against on behalf Col. Morris Davis accuses the Library of Congress of violating Davis's rights of free speech and due process. The complaint says, “Col. Davis now brings this Complaint for violation of his First and Fifth Amendment rights, seeking declaratory and injunctive relief, including reinstatement to his Assistant Director position, and damages.”
Aden Fine, staff attorney with the ACLU First Amendment Working Group, told IPS, "Col. Davis has a right to inform the public about his personal views on these issues of immense public concern, and the public has a First Amendment right to hear those opinions. The Library's actions in firing him for expressing those views in public violate the First Amendment and should not be permitted."
The ACLU wrote to the Library of Congress in December seeking Davis’s reinstatement. The Library denied the request.
Col. Davis, a United States Air Force officer and lawyer, served as the third Chief Prosecutor in the Guántanamo military commissions. He resigned from the position and retired from active duty in October 2008.
In resigning, Morris that the trials were “rigged from the start.” He charged that the process had been manipulated by Bush Administration appointees to foreclose the possibility of acquittal.
Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."
On GITMO’s’eighth anniversary, 198 prisoners are still being held there. President Obama has released 42 men since taking office on January 20, 2009, but has already admitted that he will miss his self-imposed deadline for the prison's closure on January 22.
Tuesday, January 12, 2010
Sunday, January 10, 2010
What to do with The UnderBomber
By William Fisher
Well, the underpants bomber has now pleaded “not guilty” to a bunch of charges stemming from his unsuccessful efforts to blow up a Detroit-bound airliner on Christmas day.
The not guilty stuff is a legal formality he will use to try to negotiate some kind of plea deal. If he’s not successful, he’ll be tried, found guilty and, in light of the charges against him, sentenced to life in prison without the possibility of parole.
Just like the ‘shoe bomber’ – Richard Reid.
But let me be permitted to wonder aloud whether this is our wisest course. And to ask readers to tell me what they think.
This notion isn’t likely to win me any popularity contests, but there might just be a better way to for us to handle Mr. Abdulmutallab. A win-win way.
I know there are lots of folks who would just like to put Abdulmutallab away forever. Lock him up and throw away the key. Then we’d never have to think about him again. That’s certainly the conventional way we handle his kinds of crimes.
But, just for a minute, let’s take a step back and consider: We don’t yet know much about this guy. We know he’s 23 years old. And we know that, based on the sound of some of his Internet writings, he has been lonely, isolated, depressed. We know he is a deeply religious Muslim, but we don’t yet know why he set out to kill us. We don’t yet know what motivated him to become a jihadi.
But we probably can assume that once he gets a prison sentence that contains the words ‘without possibility of parole,’ he’ll be an even scarier jihadi with each passing year. And attempt to turn his fellow inmates into jihadis as well.
But what would happen if we tried to give him an incentive to not be a jihadi? What if we sentenced him to, say, 20 years to life with the possibility of parole? And what if we were able to marshal the resources to really work with this guy in the slammer? Teaching him about our people, our country, our values. Could we get him to give up on jihad? Could we turn him? Could he end up like us?
Well, the prospects are probably razor-thin. The re-education of Mr. Abdulmutallab would take a considerable time. And our Bureau of Prisons would have to do a lot of outside-the-box thinking to come up with and execute a plan. But do we have a lot to lose? Wouldn’t seem so.
After all, we as a people are supposed to believe in redemption, resurrection, rehabilitation. Our prison system is always saying they too believe in these values, but they do next to nothing to make them a reality. American prisons and Corrections don’t belong in the same sentence.
I wouldn’t even venture a guess about the odds, but there’s always a chance that Mr. Abdulmutallab might just end up as a poster child for civilized behavior.
And that tantalizing possibility might just present us with a rare opportunity. Hey, you never know!
What are your thoughts, readers?
Well, the underpants bomber has now pleaded “not guilty” to a bunch of charges stemming from his unsuccessful efforts to blow up a Detroit-bound airliner on Christmas day.
The not guilty stuff is a legal formality he will use to try to negotiate some kind of plea deal. If he’s not successful, he’ll be tried, found guilty and, in light of the charges against him, sentenced to life in prison without the possibility of parole.
Just like the ‘shoe bomber’ – Richard Reid.
But let me be permitted to wonder aloud whether this is our wisest course. And to ask readers to tell me what they think.
This notion isn’t likely to win me any popularity contests, but there might just be a better way to for us to handle Mr. Abdulmutallab. A win-win way.
I know there are lots of folks who would just like to put Abdulmutallab away forever. Lock him up and throw away the key. Then we’d never have to think about him again. That’s certainly the conventional way we handle his kinds of crimes.
But, just for a minute, let’s take a step back and consider: We don’t yet know much about this guy. We know he’s 23 years old. And we know that, based on the sound of some of his Internet writings, he has been lonely, isolated, depressed. We know he is a deeply religious Muslim, but we don’t yet know why he set out to kill us. We don’t yet know what motivated him to become a jihadi.
But we probably can assume that once he gets a prison sentence that contains the words ‘without possibility of parole,’ he’ll be an even scarier jihadi with each passing year. And attempt to turn his fellow inmates into jihadis as well.
But what would happen if we tried to give him an incentive to not be a jihadi? What if we sentenced him to, say, 20 years to life with the possibility of parole? And what if we were able to marshal the resources to really work with this guy in the slammer? Teaching him about our people, our country, our values. Could we get him to give up on jihad? Could we turn him? Could he end up like us?
Well, the prospects are probably razor-thin. The re-education of Mr. Abdulmutallab would take a considerable time. And our Bureau of Prisons would have to do a lot of outside-the-box thinking to come up with and execute a plan. But do we have a lot to lose? Wouldn’t seem so.
After all, we as a people are supposed to believe in redemption, resurrection, rehabilitation. Our prison system is always saying they too believe in these values, but they do next to nothing to make them a reality. American prisons and Corrections don’t belong in the same sentence.
I wouldn’t even venture a guess about the odds, but there’s always a chance that Mr. Abdulmutallab might just end up as a poster child for civilized behavior.
And that tantalizing possibility might just present us with a rare opportunity. Hey, you never know!
What are your thoughts, readers?
Friday, January 08, 2010
W's Influence Continues...
By William Fisher
While the unsuccessful attempt to bring down a Detroit-bound airliner on Christmas day captured the headlines and put major political roadblocks in the path of prisoner release from Guantanamo Bay, the courts – far more quietly -- continued to play a major role in influencing the detention issue.
That influence was demonstrated by two cases this week.
In Washington, D.C., a three-judge panel of the U.S. Court of Appeals minced its way toward fashioning new rules to govern habeas corpus decisions brought by three prisoners at the Bagram airbase in Afghanistan.
And a decision by three different judges of the same court affirmed the government's authority to hold people taken prisoner in the fight against al-Qaida and the Taliban – thus making it more difficult for detainees to challenge the basis of their detention.
On Thursday, the DC Circuit court heard oral arguments in a case known as Maqaleh v. Gates -- the first legal challenge in U.S. courts on behalf of prisoners detained at Bagram Airbase in Afghanistan. The case was brought by the International Justice Network (IJNetwork) on behalf of two Yemenis and one Tunisian citizen, each seized outside of Afghanistan from third countries and held without charge or trial in U.S. custody for more than six years.
Evidence suggests that each man was shuttled through U.S.-run secret prisons (“black sites”) for torture and interrogation, prior to ultimately being transferred to Bagram—itself the site of well-documented human rights violations—where they continue to be subjected to indefinite detention under sole U.S. military custody.
During the entire six-year period while he has been in U.S. custody, Maqaleh has not been permitted to see his family, and has been denied any access to lawyers or a court of law. Because he is being held virtually incommunicado, his father authorized IJNetwork to file a petition for a writ of habeas corpus in U.S. court seeking his release. Though his case has now been pending for over three years, the government continues to refuse to allow Maqaleh to communicate with his attorneys.
In April 2009, Judge John D. Bates ruled that Maqaleh, and two other petitioners in the case, Amin al Bakri and Redha al Najar, have a Constitutional right to petition U.S. courts for a writ of habeas corpus.
Judge Bates’s decision was based on the Supreme Court’s decision in Boumediene v. Bush, which established that detainees held in U.S. custody at Guantanamo had a Constitutional right to file habeas corpus petitions in U.S. courts. But before any of the Bagram detainees could have his day in court, the Obama Administration appealed Judge Bates’ decision—arguing that none of the 600 detainees at Bagram have any rights under U.S. law.
As the organization representing the Bagram detainees, the IJNetwork, has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody — including Bagram.
Though President Obama has vowed to close Guantanamo, the Department of Justice continues to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights. As the organization representing the Bagram detainees, IJNetwork has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody— including Bagram.
Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.
But Tina Foster, executive director of the International Justice Network (IJN), who argued for the Bagram detainees, told IPS, “Our clients are three innocent men who have been imprisoned without charge for seven years and haven't even been told why. The fundamental question at issue in these cases is whether the United States government can seize individuals from peaceful countries anywhere in the world and imprison them without charge indefinitely, based solely on the location of the prison facility where the government decides to detain them.”
She added, “The position of the Obama administration is that it can do so, as long as it uses Bagram, instead of Guantanamo, as its legal black hole. This is an extreme position -- and one that allows the President to do exactly what the Supreme Court said was unconstitutional in the Guantanamo cases. We are very disappointed that this administration has failed to live up to its promise of living up to this country's great legal tradition and fidelity to the rule of law, but we are hopeful that the Court of Appeals will remedy this injustice.”
She said the Justice Department’s position is one where “Bumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.
In the second case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court's decision in 2008 affirming the continued detention of a former cook for Taliban forces. He is Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan. Held at the U.S. naval base in Cuba since 2002, al Bihani carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan, but claims he never fired a shot in battle.
The court unanimously rejected Al Bihani's appeal. But two judges appointed by President George W. Bush went even further. Bush appointees Janice Rogers Brown and Brett Kavanaugh said detainees are not entitled to the same rights given criminal defendants who challenge their convictions.
In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.
As a result, federal judges have reached often contradictory conclusions about the detainees' legal rights and whether the government has the power to continue holding them.
This decision can be appealed either to the full appeals court or to the
Supreme Court. If it is not challenged successfully, it could apply to every other detainee case filed in Washington and provide the government with a compelling basis to challenge any court order to release a detainee.
Legal authorities said the decision will make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so robustly supports the government's authority, legal experts said.
The two Bush appointees rejected attempts by human rights groups and detainees' lawyers to have the courts apply principles from "the laws of war" to detention decisions.
This group of international laws, treaties and long-standing legal practices would probably curtail the government’s ability to detain people such as Bihani indefinitely, his defenders believe.
A large majority of the prisoners still held at Guantanamo Bay is from Yemen. In the aftermath of the political backlash triggered by the disclosure that the would-be bomber of the Detroit-bound airliner was given his explosive device by Al Qaeda in Yemen, the Obama administration decided to suspend release of any Yemeni detainees, many of whom have been cleared for release.
While the unsuccessful attempt to bring down a Detroit-bound airliner on Christmas day captured the headlines and put major political roadblocks in the path of prisoner release from Guantanamo Bay, the courts – far more quietly -- continued to play a major role in influencing the detention issue.
That influence was demonstrated by two cases this week.
In Washington, D.C., a three-judge panel of the U.S. Court of Appeals minced its way toward fashioning new rules to govern habeas corpus decisions brought by three prisoners at the Bagram airbase in Afghanistan.
And a decision by three different judges of the same court affirmed the government's authority to hold people taken prisoner in the fight against al-Qaida and the Taliban – thus making it more difficult for detainees to challenge the basis of their detention.
On Thursday, the DC Circuit court heard oral arguments in a case known as Maqaleh v. Gates -- the first legal challenge in U.S. courts on behalf of prisoners detained at Bagram Airbase in Afghanistan. The case was brought by the International Justice Network (IJNetwork) on behalf of two Yemenis and one Tunisian citizen, each seized outside of Afghanistan from third countries and held without charge or trial in U.S. custody for more than six years.
Evidence suggests that each man was shuttled through U.S.-run secret prisons (“black sites”) for torture and interrogation, prior to ultimately being transferred to Bagram—itself the site of well-documented human rights violations—where they continue to be subjected to indefinite detention under sole U.S. military custody.
During the entire six-year period while he has been in U.S. custody, Maqaleh has not been permitted to see his family, and has been denied any access to lawyers or a court of law. Because he is being held virtually incommunicado, his father authorized IJNetwork to file a petition for a writ of habeas corpus in U.S. court seeking his release. Though his case has now been pending for over three years, the government continues to refuse to allow Maqaleh to communicate with his attorneys.
In April 2009, Judge John D. Bates ruled that Maqaleh, and two other petitioners in the case, Amin al Bakri and Redha al Najar, have a Constitutional right to petition U.S. courts for a writ of habeas corpus.
Judge Bates’s decision was based on the Supreme Court’s decision in Boumediene v. Bush, which established that detainees held in U.S. custody at Guantanamo had a Constitutional right to file habeas corpus petitions in U.S. courts. But before any of the Bagram detainees could have his day in court, the Obama Administration appealed Judge Bates’ decision—arguing that none of the 600 detainees at Bagram have any rights under U.S. law.
As the organization representing the Bagram detainees, the IJNetwork, has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody — including Bagram.
Though President Obama has vowed to close Guantanamo, the Department of Justice continues to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights. As the organization representing the Bagram detainees, IJNetwork has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody— including Bagram.
Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.
But Tina Foster, executive director of the International Justice Network (IJN), who argued for the Bagram detainees, told IPS, “Our clients are three innocent men who have been imprisoned without charge for seven years and haven't even been told why. The fundamental question at issue in these cases is whether the United States government can seize individuals from peaceful countries anywhere in the world and imprison them without charge indefinitely, based solely on the location of the prison facility where the government decides to detain them.”
She added, “The position of the Obama administration is that it can do so, as long as it uses Bagram, instead of Guantanamo, as its legal black hole. This is an extreme position -- and one that allows the President to do exactly what the Supreme Court said was unconstitutional in the Guantanamo cases. We are very disappointed that this administration has failed to live up to its promise of living up to this country's great legal tradition and fidelity to the rule of law, but we are hopeful that the Court of Appeals will remedy this injustice.”
She said the Justice Department’s position is one where “Bumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.
In the second case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court's decision in 2008 affirming the continued detention of a former cook for Taliban forces. He is Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan. Held at the U.S. naval base in Cuba since 2002, al Bihani carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan, but claims he never fired a shot in battle.
The court unanimously rejected Al Bihani's appeal. But two judges appointed by President George W. Bush went even further. Bush appointees Janice Rogers Brown and Brett Kavanaugh said detainees are not entitled to the same rights given criminal defendants who challenge their convictions.
In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.
As a result, federal judges have reached often contradictory conclusions about the detainees' legal rights and whether the government has the power to continue holding them.
This decision can be appealed either to the full appeals court or to the
Supreme Court. If it is not challenged successfully, it could apply to every other detainee case filed in Washington and provide the government with a compelling basis to challenge any court order to release a detainee.
Legal authorities said the decision will make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so robustly supports the government's authority, legal experts said.
The two Bush appointees rejected attempts by human rights groups and detainees' lawyers to have the courts apply principles from "the laws of war" to detention decisions.
This group of international laws, treaties and long-standing legal practices would probably curtail the government’s ability to detain people such as Bihani indefinitely, his defenders believe.
A large majority of the prisoners still held at Guantanamo Bay is from Yemen. In the aftermath of the political backlash triggered by the disclosure that the would-be bomber of the Detroit-bound airliner was given his explosive device by Al Qaeda in Yemen, the Obama administration decided to suspend release of any Yemeni detainees, many of whom have been cleared for release.
How September 10th!
By William Fisher
Civil liberties advocates and organizations representing Muslims believe the Obama administration’s decision to require extra scrutiny for travelers to the U.S. from 14 predominantly Islamic countries will lead to practices that are discriminatory and ineffective.
The Obama administration announced Sunday it will subject the
citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.
Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.
In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers -- not just from the 14 countries -- will also face random and threat-based enhanced screening.
But the agency denied that the new regulations amount to profiling. "TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background," spokesman Kristin Lee said.
“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”
But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”
“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration's stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.
Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.
According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”
"We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion," said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.
"Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats."
The organization said the government's plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the "shoe bomber," Richard Reid, who was a British citizen, as were four of the London subway bombers.
"Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn't reflect this reality will only divert resources by having government agents target innocent people," said German. "Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism."
Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, "Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -- that's profiling."
He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”
“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”
CAIR’s government liaison, Alejandro Beutel, said, "The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin," said "Call it whatever you want, but this is religious and ethnic profiling at its worst."
A number of legal experts were also critical of the new measures.
Georgetown University law professor David Cole said, "The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don't fit the profile."
Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.
In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I'm going to argue that this case illustrates the danger and the foolishness of profiling…I think it's not only problematic from a civil rights' standpoint, but frankly, I think it winds up not being terribly effective.”
He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”
A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.
Civil liberties advocates and organizations representing Muslims believe the Obama administration’s decision to require extra scrutiny for travelers to the U.S. from 14 predominantly Islamic countries will lead to practices that are discriminatory and ineffective.
The Obama administration announced Sunday it will subject the
citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.
Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.
In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers -- not just from the 14 countries -- will also face random and threat-based enhanced screening.
But the agency denied that the new regulations amount to profiling. "TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background," spokesman Kristin Lee said.
“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”
But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”
“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration's stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.
Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.
According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”
"We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion," said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.
"Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats."
The organization said the government's plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the "shoe bomber," Richard Reid, who was a British citizen, as were four of the London subway bombers.
"Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn't reflect this reality will only divert resources by having government agents target innocent people," said German. "Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism."
Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, "Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -- that's profiling."
He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”
“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”
CAIR’s government liaison, Alejandro Beutel, said, "The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin," said "Call it whatever you want, but this is religious and ethnic profiling at its worst."
A number of legal experts were also critical of the new measures.
Georgetown University law professor David Cole said, "The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don't fit the profile."
Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.
In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I'm going to argue that this case illustrates the danger and the foolishness of profiling…I think it's not only problematic from a civil rights' standpoint, but frankly, I think it winds up not being terribly effective.”
He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”
A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.
Tuesday, January 05, 2010
Emma Lazarus Redux
By William Fisher
The United States is a country that has been built on immigration and by immigrants. For more than two centuries, people have come from all over the world to be Americans. And for all that time we have taken pride in our ability to integrate people from many backgrounds into one – E Pluribus Unum! Why, we even have a statue in the harbor of our largest city to welcome those from foreign lands: Give me your tired, your poor, Your huddled masses, et cetera.
So it should be no surprise that we wonder how our immigration authorities ever managed to get their work so totally screwed up.
Undoubtedly, illegal immigration has a lot to do with this situation. We can’t seem to control our borders, a thing that every nation needs to be able to do. And, especially in times of economic distress, we tend to get maddest at those who have taken advantage of this deficiency of ours.
But a lot of us were mad long before our economy got into distress. Some people just don’t like the idea of foreigners flouting our laws. Others believe that these illegals are taking jobs away from Americans. Still others complain that they are driving down the wages of American workers. Then there are those who simply don’t like folks who are “not like us” –who they claim are raising the violent crime rate in our country.
Still, wouldn’t you think that after a couple of hundred years of immigration, we’d have figured out how to run this system?
Well, there’s lots of evidence that we haven’t. There are some 12-14 million undocumented workers and their families in the U.S. today. We keep telling one another we can’t possibly deport all of them. Yet our immigration authorities keep running raids on the places where these undocumented folks are working, and rounding up hundreds to be deported. Now, we’ve even got a program that gives local law enforcement officers the authority to arrest and detain suspected illegals.
These people are often whisked away from their families to detention centers, which can be federal facilities built for illegal immigrants, state prisons, or county, town or private jails. These facilities are frequently far from the places where their apprehension took place, so the detainees often have no access to the records they’ll need to plead their cases for staying in the U.S. They also have no access to lawyers, to telephones, or to their families. Due process is in pretty short supply in the immigration maze.
Immigration authorities detain more than 300,000 men, women and children every year in a network of some 400 private facilities and state and local jails. Unlike other federal incarceration systems, there are no binding regulations that govern the conditions in those facilities.
And, those conditions can only be described as subhuman – dangerously filthy, and without the most rudimentary sanitary facilities or basic medical care.
Those occupying these hell-holes include thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing. They 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). More than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.
The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.
Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.
While immigration officials are promising to clean up this disgraceful act – and Congress is slowly getting involved to make that happen – we learn of yet another Kafkasque regulation.
Each year, the US government sends officials overseas to interview thousands of people displaced by persecution and conflict, classifies a select number as refugees in need of resettlement, and brings them to the United States. After a year in the United States, every resettled refugee is required to apply for lawful permanent resident (LPR) status, more familiarly known as a "green card," in a procedure known as "adjustment."
The government does not formally notify them of the upcoming deadline and the refugees' limited English, ignorance about the requirement, confusion over the legal process, and lack of resources often keeps them from filing on time.
It will be hard to believe, but some of these refugees are actually jailed and held indefinitely for missing the paperwork deadline. And their detentions continue to be selective and arbitrary, and in violation of international human rights law.
We know about this newest Emma Lazarus nightmare because Human Rights Watch just published a report about it -- "Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status.”
The 40-page report examines the detention of refugees for failure to file for lawful permanent resident status, even though US immigration officials already put them through a thorough vetting process at the time they were recognized as refugees.
The report recommends changing US law to close the legal loophole that allows for detaining these refugees and to give them lawful permanent residence when the US grants them asylum or admits them to the country under its overseas refugee resettlement program.
"For the US government to bring persecuted refugees to this country and then turn around a year later and jail them because they didn't file immigration forms is ironic to the point of absurdity," says Bill Frelick, refugee policy director at Human Rights Watch. "This mindlessly bureaucratic policy unnecessarily traumatizes refugees and their families, not to mention wasting the government's resources."
The report is based on interviews with 17 refugees in immigration detention in Arizona and Pennsylvania and with legal aid providers in Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of who worked with refugees detained for failure to adjust their status.
Sebastian Nyembo (a pseudonym) was only eight when he was resettled from the Democratic Republic of Congo. He did not know about the requirement. "I was eight years old," Sebastian told Human Rights Watch. "My father passed away. When I got older I realized I needed it, but I didn't know it was mandatory."
When Human Rights Watch visited him in August 2009 at the remote Eloy Detention Center in the Arizona desert, he had not spoken to his two children, ages 7 and 4, since his arrival four months earlier. His son has sickle cell anemia, which requires expensive medical care, but Sebastian had been unable to provide for the children since his detention. "My wife, she been going through a lot," he said. "My house went for foreclosure."
Although the law is not applied uniformly, ICE interprets section 209(a) of the Immigration and Nationality Act as mandating detention of all refugees who have been in the US for 12 months who have not filed to adjust their status, until they have filed for adjustment and their applications have been adjudicated. In Arizona, where Human Rights Watch conducted most of its interviews, refugees were sometimes detained for several months in remote, desert locations, and in some cases for longer than a year, without being formally charged with any legal offense.
The majority of resettled refugees interviewed by Human Rights Watch said that before their detention, they were unaware that they were required to file for adjustment of status. Most believed that filing for adjustment of status was optional, and were unaware of any potential legal repercussions for failure to file after one year.
"These people are no danger to their communities, nor are they a flight risk," Frelick said. "But detaining them separates them from spouses and children, interrupts their education and costs them their jobs - not to mention the new trauma for those with post-traumatic stress disorder."
The US is a state party to the International Covenant on Civil and Political Rights, which states that no one shall be subject to arbitrary arrest or detention (Article 9). This prohibition means that a person may be deprived of liberty, even if provided for under domestic law, only to meet a legitimate aim, and only in cases where it is necessary and proportionate, such as when alternatives to detention are not possible. An arrest or detention is arbitrary if not carried out in accordance with domestic law, or if the law is itself arbitrary or extremely broadly worded.
Failure to adjust immigration status is not a chargeable criminal or civil offense. So unlike sentences of a specific length imposed for criminal convictions, the length of detention for resettled refugees is indefinite. When people are detained for this reason, they are held until they complete their application and the application has been fully adjudicated. This may take 4 to 6 months, and in some cases longer than a year.
"Jailing Refugees" urges the US Congress to change the law that currently permits ICE to detain these refugees and calls on Congress to grant legal permanent residence to all recognized refugees in the US, given that their cases have already been considered in depth as part of the asylum or refugee resettlement process. In the meantime, it also calls on ICE to stop detaining these refugees and to permit them to file for adjustment from their own homes and communities.
The experience of being detained often without understanding why or how to get out of detention can cause great anxiety and depression. Sebastian Nyembo told Human Rights Watch "I'm a good person, a good hearted person, but I'm gonna give up. I don't have no fight in me."
Some might argue that the current law should remain unchanged because it gives US immigration authorities an opportunity to examine refugees after one year to see if they should be removed because of criminal behavior. "Jailing Refugees’" central recommendation that refugees be admitted with lawful permanent resident status would still allow US immigration authorities to put criminals into removal proceedings. "Under existing law, US immigration authorities have ample grounds for initiating removal proceedings against lawful permanent residents convicted of crimes and for detaining them during those proceedings," said Frelick.
Now, none of this will come as news to the Department of Homeland Security, the super-bureaucracy that runs our immigration machinery, and its Immigration and Customs Enforcement (ICE) unit. The Secretary of DHS, Janet Napolitano, has already taken a lot of heat for the incredibly poor performance of ICE. She has outlined her plans to improve and reform conditions for thousands of refugees currently being held in detention.
And there have been a few other changes as well. For example, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.
This may be a notch or two better than the silence we heard under President Bush, who tended who have a “heck of a job” attitude toward Michael Chertoff, DHS secretary during the second Bush term.
But one could be forgiven for being just a tad cynical about real reform any time soon. Because even the Obama Administration knows that undocumented immigrants don’t vote.
This article originally appeared in Truthout.com.
http://www.truthout.org/105091
The United States is a country that has been built on immigration and by immigrants. For more than two centuries, people have come from all over the world to be Americans. And for all that time we have taken pride in our ability to integrate people from many backgrounds into one – E Pluribus Unum! Why, we even have a statue in the harbor of our largest city to welcome those from foreign lands: Give me your tired, your poor, Your huddled masses, et cetera.
So it should be no surprise that we wonder how our immigration authorities ever managed to get their work so totally screwed up.
Undoubtedly, illegal immigration has a lot to do with this situation. We can’t seem to control our borders, a thing that every nation needs to be able to do. And, especially in times of economic distress, we tend to get maddest at those who have taken advantage of this deficiency of ours.
But a lot of us were mad long before our economy got into distress. Some people just don’t like the idea of foreigners flouting our laws. Others believe that these illegals are taking jobs away from Americans. Still others complain that they are driving down the wages of American workers. Then there are those who simply don’t like folks who are “not like us” –who they claim are raising the violent crime rate in our country.
Still, wouldn’t you think that after a couple of hundred years of immigration, we’d have figured out how to run this system?
Well, there’s lots of evidence that we haven’t. There are some 12-14 million undocumented workers and their families in the U.S. today. We keep telling one another we can’t possibly deport all of them. Yet our immigration authorities keep running raids on the places where these undocumented folks are working, and rounding up hundreds to be deported. Now, we’ve even got a program that gives local law enforcement officers the authority to arrest and detain suspected illegals.
These people are often whisked away from their families to detention centers, which can be federal facilities built for illegal immigrants, state prisons, or county, town or private jails. These facilities are frequently far from the places where their apprehension took place, so the detainees often have no access to the records they’ll need to plead their cases for staying in the U.S. They also have no access to lawyers, to telephones, or to their families. Due process is in pretty short supply in the immigration maze.
Immigration authorities detain more than 300,000 men, women and children every year in a network of some 400 private facilities and state and local jails. Unlike other federal incarceration systems, there are no binding regulations that govern the conditions in those facilities.
And, those conditions can only be described as subhuman – dangerously filthy, and without the most rudimentary sanitary facilities or basic medical care.
Those occupying these hell-holes include thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing. They 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). More than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.
The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.
Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.
While immigration officials are promising to clean up this disgraceful act – and Congress is slowly getting involved to make that happen – we learn of yet another Kafkasque regulation.
Each year, the US government sends officials overseas to interview thousands of people displaced by persecution and conflict, classifies a select number as refugees in need of resettlement, and brings them to the United States. After a year in the United States, every resettled refugee is required to apply for lawful permanent resident (LPR) status, more familiarly known as a "green card," in a procedure known as "adjustment."
The government does not formally notify them of the upcoming deadline and the refugees' limited English, ignorance about the requirement, confusion over the legal process, and lack of resources often keeps them from filing on time.
It will be hard to believe, but some of these refugees are actually jailed and held indefinitely for missing the paperwork deadline. And their detentions continue to be selective and arbitrary, and in violation of international human rights law.
We know about this newest Emma Lazarus nightmare because Human Rights Watch just published a report about it -- "Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status.”
The 40-page report examines the detention of refugees for failure to file for lawful permanent resident status, even though US immigration officials already put them through a thorough vetting process at the time they were recognized as refugees.
The report recommends changing US law to close the legal loophole that allows for detaining these refugees and to give them lawful permanent residence when the US grants them asylum or admits them to the country under its overseas refugee resettlement program.
"For the US government to bring persecuted refugees to this country and then turn around a year later and jail them because they didn't file immigration forms is ironic to the point of absurdity," says Bill Frelick, refugee policy director at Human Rights Watch. "This mindlessly bureaucratic policy unnecessarily traumatizes refugees and their families, not to mention wasting the government's resources."
The report is based on interviews with 17 refugees in immigration detention in Arizona and Pennsylvania and with legal aid providers in Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of who worked with refugees detained for failure to adjust their status.
Sebastian Nyembo (a pseudonym) was only eight when he was resettled from the Democratic Republic of Congo. He did not know about the requirement. "I was eight years old," Sebastian told Human Rights Watch. "My father passed away. When I got older I realized I needed it, but I didn't know it was mandatory."
When Human Rights Watch visited him in August 2009 at the remote Eloy Detention Center in the Arizona desert, he had not spoken to his two children, ages 7 and 4, since his arrival four months earlier. His son has sickle cell anemia, which requires expensive medical care, but Sebastian had been unable to provide for the children since his detention. "My wife, she been going through a lot," he said. "My house went for foreclosure."
Although the law is not applied uniformly, ICE interprets section 209(a) of the Immigration and Nationality Act as mandating detention of all refugees who have been in the US for 12 months who have not filed to adjust their status, until they have filed for adjustment and their applications have been adjudicated. In Arizona, where Human Rights Watch conducted most of its interviews, refugees were sometimes detained for several months in remote, desert locations, and in some cases for longer than a year, without being formally charged with any legal offense.
The majority of resettled refugees interviewed by Human Rights Watch said that before their detention, they were unaware that they were required to file for adjustment of status. Most believed that filing for adjustment of status was optional, and were unaware of any potential legal repercussions for failure to file after one year.
"These people are no danger to their communities, nor are they a flight risk," Frelick said. "But detaining them separates them from spouses and children, interrupts their education and costs them their jobs - not to mention the new trauma for those with post-traumatic stress disorder."
The US is a state party to the International Covenant on Civil and Political Rights, which states that no one shall be subject to arbitrary arrest or detention (Article 9). This prohibition means that a person may be deprived of liberty, even if provided for under domestic law, only to meet a legitimate aim, and only in cases where it is necessary and proportionate, such as when alternatives to detention are not possible. An arrest or detention is arbitrary if not carried out in accordance with domestic law, or if the law is itself arbitrary or extremely broadly worded.
Failure to adjust immigration status is not a chargeable criminal or civil offense. So unlike sentences of a specific length imposed for criminal convictions, the length of detention for resettled refugees is indefinite. When people are detained for this reason, they are held until they complete their application and the application has been fully adjudicated. This may take 4 to 6 months, and in some cases longer than a year.
"Jailing Refugees" urges the US Congress to change the law that currently permits ICE to detain these refugees and calls on Congress to grant legal permanent residence to all recognized refugees in the US, given that their cases have already been considered in depth as part of the asylum or refugee resettlement process. In the meantime, it also calls on ICE to stop detaining these refugees and to permit them to file for adjustment from their own homes and communities.
The experience of being detained often without understanding why or how to get out of detention can cause great anxiety and depression. Sebastian Nyembo told Human Rights Watch "I'm a good person, a good hearted person, but I'm gonna give up. I don't have no fight in me."
Some might argue that the current law should remain unchanged because it gives US immigration authorities an opportunity to examine refugees after one year to see if they should be removed because of criminal behavior. "Jailing Refugees’" central recommendation that refugees be admitted with lawful permanent resident status would still allow US immigration authorities to put criminals into removal proceedings. "Under existing law, US immigration authorities have ample grounds for initiating removal proceedings against lawful permanent residents convicted of crimes and for detaining them during those proceedings," said Frelick.
Now, none of this will come as news to the Department of Homeland Security, the super-bureaucracy that runs our immigration machinery, and its Immigration and Customs Enforcement (ICE) unit. The Secretary of DHS, Janet Napolitano, has already taken a lot of heat for the incredibly poor performance of ICE. She has outlined her plans to improve and reform conditions for thousands of refugees currently being held in detention.
And there have been a few other changes as well. For example, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.
This may be a notch or two better than the silence we heard under President Bush, who tended who have a “heck of a job” attitude toward Michael Chertoff, DHS secretary during the second Bush term.
But one could be forgiven for being just a tad cynical about real reform any time soon. Because even the Obama Administration knows that undocumented immigrants don’t vote.
This article originally appeared in Truthout.com.
http://www.truthout.org/105091
Monday, January 04, 2010
The Passengers Were “The System”
By William Fisher
In the wake of the failed attempt to blow up a Detroit-bound airliner on Christmas day, legal experts and human rights advocates are pushing back against calls from politicians to halt the planned release of prisoners from Guantanamo Bay to their home country, Yemen.
The would-be bomber, a 23-year-old Nigerian, was disarmed and taken down by passengers and crew of Northwest Airlines flight 253. Now in government custody, he was carrying an explosive device in his underwear. Law enforcement officials believe the bomb was made in Yemen, where an al Qaeda wing has claimed responsibility for the attempted bombing.
The incident triggered calls from several elected officials to abandon the closing of the prison at Guantánamo, which they claimed would be dangerous and premature. Some also suggested specifically that the release of Yemeni prisoners be halted.
But human rights advocates are urging President Obama to reject the use of the incident to further delay the closure of the prison and release of the detainees who are scheduled for release after review of their cases by a high-level Administration task force.
The reaction of the American Civil Liberties Union (ACLU) is representative. Jonathan Hafetz, an ACLU staff attorney, told us, "The principal problem with Guantanamo has been the US government's prolonged detention of individuals without charge. If the government has evidence, it should present it in a court of law, where justice can be done. The prior administration detained people more or less arbitrarily and released them in the same manner, all without judicial review (including the two former Gitmo who were initially linked to the recent bombing attempt). This misguided and illegal practice of detention outside the criminal process -- a process that best preserves our liberty and security -- should end."
A similar view was expressed by the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized dozens of lawyers to defend Guantanamo detainees. In a statement, CCR said, “We know from the military’s own records that most of the detainees at Guantánamo have no link to terrorism. CIA and military sources have repeatedly told reporters that most detainees ‘don’t have anything to do with’ terrorism, ‘didn't belong there’, and ‘weren't fighting.”
The group added, “It is worth recalling that the two former detainees allegedly linked to Al Qaeda in Yemen were released from Guantánamo by the Bush administration, not set free by court order or after the sort of cautious, formal assessment process that the Task Force is undertaking now, but based on purely political calculations.”
“Halting the repatriation of Yemeni men cleared by the Task Force after months of careful review is unconscionable,” it said.
Legal experts we contacted were also critical of proposals to halt Guantanamo releases.
David Frakt, Professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee, told us, “We can never know with absolute certainty that a person released from Guantanamo will not join a jihadist movement and seek to harm Americans. What we have to focus on is whether we have a lawful basis to detain someone. If they have committed a crime, they should be put on trial. If they have engaged in hostilities against the U.S. not amounting to a crime, they may be held under the laws of war. If there is insufficient evidence to lawfully detain someone, they must be released. It is possible that by holding innocent people for several years in very harsh conditions that we may have turned some detainees against us, but the overwhelming majority of released detainees have shown no interest in violent conflict and have returned home to try to reconstruct their lives in peaceful ways.“
He added, “Those opposed to the closure of Guantanamo will seize upon any reason to delay the release of detainees and will put as many obstacles in President Obama's way as they can come up with. The longer Guantanamo stays open, the more that they can say ‘we told you it wasn't going to be easy’ and the more they can claim that President Obama's policies are basically no different that President Bush's.”
And Brian J. Foley, Visiting Associate Professor at Boston University School of Law, told us, "This seems to be either a false concern used tendentiously by U.S. officials to keep alive their unjustifiable and inhumane policy, or an illogical overreaction based on officials' fear and cowardice. If the government cannot prove that these individuals at Guantanamo are dangerous or complicit in terrorism, then how officials can believe that an attempted attack near Detroit has somehow turned all these people into terrorists makes no sense. Call it National Security State alchemy!”
He added, “Perhaps we should just go ahead and imprison any and all non-criminal citizens, because somewhere someone has tried to commit a crime?"
Republicans lawmakers were quick to use the airliner bomb incident to portray the Obama Administration as “soft on terrorism.”
Rep. Pete Hoekstra of Michigan, who is running for governor of his state, sent out a fundraising letter, criticizing the response of those he called "weak-kneed liberals." He is the ranking member of the House Intelligence Committee.
Speaking on Fox News, Hoekstra argued that the slowness of Obama’s reaction showed terrorism wasn’t high on his agenda. “On many other instances and occasions the president is out front. He’s out front leading very early on a lot of different issues. When it comes to terrorism to the threat to the homeland, the president has decided to stay silent for 72 hours. He needs to explain that, he said. Why this is not a priority? It should be his No. 1 priority.”
A similar line was taken by Rep. Peter King of New York. In a TV appearance, King said, “I'm disappointed it's taken the president 72 hours to even address this issue. Basically nobody, the president, the vice president, the attorney general, nobody except [Homeland Security] Secretary [Janet] Napolitano has come out. And she said yesterday everything worked well. What I hope the president would do is treat this in a bipartisan way, acknowledge that mistakes were made and Promise we'll do all we can to make sure it doesn't happen again."
But criticism of the administration was not by Republicans exclusively. The senior Democrat on the Senate intelligence committee said she wants no more Guantanamo Bay detainees released to Yemen.
“Guantanamo detainees should not be released to Yemen at this time,” said Sen. Dianne Feinstein of California. “It is too unstable.”
Feinstein’s warning came just nine days after the Department of Justice announced the most recent transfer of 12 detainees from Guantanamo Bay to Afghanistan, Yemen and Somaliland. Six of the 12 were transferred to the government of Yemen.
The Obama Administration has said it will continue to release Guantanamo detainees, including those from Yemen. A substantial majority of the detainees remaining at Guantanamo is from Yemen.
In the wake of the failed attempt to blow up a Detroit-bound airliner on Christmas day, legal experts and human rights advocates are pushing back against calls from politicians to halt the planned release of prisoners from Guantanamo Bay to their home country, Yemen.
The would-be bomber, a 23-year-old Nigerian, was disarmed and taken down by passengers and crew of Northwest Airlines flight 253. Now in government custody, he was carrying an explosive device in his underwear. Law enforcement officials believe the bomb was made in Yemen, where an al Qaeda wing has claimed responsibility for the attempted bombing.
The incident triggered calls from several elected officials to abandon the closing of the prison at Guantánamo, which they claimed would be dangerous and premature. Some also suggested specifically that the release of Yemeni prisoners be halted.
But human rights advocates are urging President Obama to reject the use of the incident to further delay the closure of the prison and release of the detainees who are scheduled for release after review of their cases by a high-level Administration task force.
The reaction of the American Civil Liberties Union (ACLU) is representative. Jonathan Hafetz, an ACLU staff attorney, told us, "The principal problem with Guantanamo has been the US government's prolonged detention of individuals without charge. If the government has evidence, it should present it in a court of law, where justice can be done. The prior administration detained people more or less arbitrarily and released them in the same manner, all without judicial review (including the two former Gitmo who were initially linked to the recent bombing attempt). This misguided and illegal practice of detention outside the criminal process -- a process that best preserves our liberty and security -- should end."
A similar view was expressed by the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized dozens of lawyers to defend Guantanamo detainees. In a statement, CCR said, “We know from the military’s own records that most of the detainees at Guantánamo have no link to terrorism. CIA and military sources have repeatedly told reporters that most detainees ‘don’t have anything to do with’ terrorism, ‘didn't belong there’, and ‘weren't fighting.”
The group added, “It is worth recalling that the two former detainees allegedly linked to Al Qaeda in Yemen were released from Guantánamo by the Bush administration, not set free by court order or after the sort of cautious, formal assessment process that the Task Force is undertaking now, but based on purely political calculations.”
“Halting the repatriation of Yemeni men cleared by the Task Force after months of careful review is unconscionable,” it said.
Legal experts we contacted were also critical of proposals to halt Guantanamo releases.
David Frakt, Professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee, told us, “We can never know with absolute certainty that a person released from Guantanamo will not join a jihadist movement and seek to harm Americans. What we have to focus on is whether we have a lawful basis to detain someone. If they have committed a crime, they should be put on trial. If they have engaged in hostilities against the U.S. not amounting to a crime, they may be held under the laws of war. If there is insufficient evidence to lawfully detain someone, they must be released. It is possible that by holding innocent people for several years in very harsh conditions that we may have turned some detainees against us, but the overwhelming majority of released detainees have shown no interest in violent conflict and have returned home to try to reconstruct their lives in peaceful ways.“
He added, “Those opposed to the closure of Guantanamo will seize upon any reason to delay the release of detainees and will put as many obstacles in President Obama's way as they can come up with. The longer Guantanamo stays open, the more that they can say ‘we told you it wasn't going to be easy’ and the more they can claim that President Obama's policies are basically no different that President Bush's.”
And Brian J. Foley, Visiting Associate Professor at Boston University School of Law, told us, "This seems to be either a false concern used tendentiously by U.S. officials to keep alive their unjustifiable and inhumane policy, or an illogical overreaction based on officials' fear and cowardice. If the government cannot prove that these individuals at Guantanamo are dangerous or complicit in terrorism, then how officials can believe that an attempted attack near Detroit has somehow turned all these people into terrorists makes no sense. Call it National Security State alchemy!”
He added, “Perhaps we should just go ahead and imprison any and all non-criminal citizens, because somewhere someone has tried to commit a crime?"
Republicans lawmakers were quick to use the airliner bomb incident to portray the Obama Administration as “soft on terrorism.”
Rep. Pete Hoekstra of Michigan, who is running for governor of his state, sent out a fundraising letter, criticizing the response of those he called "weak-kneed liberals." He is the ranking member of the House Intelligence Committee.
Speaking on Fox News, Hoekstra argued that the slowness of Obama’s reaction showed terrorism wasn’t high on his agenda. “On many other instances and occasions the president is out front. He’s out front leading very early on a lot of different issues. When it comes to terrorism to the threat to the homeland, the president has decided to stay silent for 72 hours. He needs to explain that, he said. Why this is not a priority? It should be his No. 1 priority.”
A similar line was taken by Rep. Peter King of New York. In a TV appearance, King said, “I'm disappointed it's taken the president 72 hours to even address this issue. Basically nobody, the president, the vice president, the attorney general, nobody except [Homeland Security] Secretary [Janet] Napolitano has come out. And she said yesterday everything worked well. What I hope the president would do is treat this in a bipartisan way, acknowledge that mistakes were made and Promise we'll do all we can to make sure it doesn't happen again."
But criticism of the administration was not by Republicans exclusively. The senior Democrat on the Senate intelligence committee said she wants no more Guantanamo Bay detainees released to Yemen.
“Guantanamo detainees should not be released to Yemen at this time,” said Sen. Dianne Feinstein of California. “It is too unstable.”
Feinstein’s warning came just nine days after the Department of Justice announced the most recent transfer of 12 detainees from Guantanamo Bay to Afghanistan, Yemen and Somaliland. Six of the 12 were transferred to the government of Yemen.
The Obama Administration has said it will continue to release Guantanamo detainees, including those from Yemen. A substantial majority of the detainees remaining at Guantanamo is from Yemen.
Thursday, December 24, 2009
ONE COURT’S CATCH-22
By William Fisher
Last August, a federal judge threw out a lawsuit challenging the government’s right to spy on Americans' international e-mails and telephone calls without warrants or suspicion of any kind, because the folks who brought the suit couldn’t prove what may be unprovable.
The original lawsuit was filed by the American Civil Liberties Union last July on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations. The suit sought to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.
The plaintiffs' argued that their work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. They said they should be allowed to challenge the law because there was a high likelihood that their communications would be monitored under the law in the future, and because it had forced them to take “costly and burdensome” measures to protect the confidentiality of their communications.
But the judge, John G. Koeltl of the Southern District of New York, dismissed the case, ruling that the plaintiffs did not have “standing” to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.
Last week, the ACLU asked an appeals court to overturn Judge Koeltl’s decision. Jameel Jaffer, Director of the ACLU National Security Project, said, "To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact, it's possible that no one will ever be able to prove what the court says is required.”
The ACLU position is that judicial review is necessary because the plaintiffs have been, and continue to be, injured by what it calls “the unconstitutional spying statute.”
“Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised,” the ACLU says.
As a result, it adds, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are ‘ethically required by codes of professional conduct’ to protect the confidentiality of their communications.” The ACLU also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.
"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," says Jaffer. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws,” he asserts.
"If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."
In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.
In July 2008, the FISA Amendments Act of 2008 (FAA) was signed by then-President George W. Bush, who admitted that, in the wake of the terrorist attacks of September 11, 2001, he had authorized intelligence agencies to disregard the FISA law and conduct warrantless wiretaps. Bush then asked Congress to, in effect, make the practice lawful.
The FAA was presented as a way of “updating” the Foreign Intelligence Surveillance Act (FISA). But according to the ACLU, “the law meant to ‘update’ FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant.”
The ACLU lawsuit was filed on the same day the FAA was signed into law.
Critics have asserted that the Administration's warrantless spying program is a violation of the Fourth Amendment to the United States Constitution against warrantless search and a criminal violation of FISA. The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a court order and probable cause.
Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gave the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.
The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."
This is not the first time Congressional action has impacted FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.
Several provisions of the Patriot Act are due to expire at the end of this year, and Congress is currently considering changes to these provisions.
The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 by Senator Edward M. Kennedy of Massachusetts and signed into law by President Jimmy Carter in 1978.
The act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s use of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.
The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
The Act returned to public prominence in December 2005 following publication by The New York Times of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency (NSA) since at least 2002.
Last August, a federal judge threw out a lawsuit challenging the government’s right to spy on Americans' international e-mails and telephone calls without warrants or suspicion of any kind, because the folks who brought the suit couldn’t prove what may be unprovable.
The original lawsuit was filed by the American Civil Liberties Union last July on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations. The suit sought to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.
The plaintiffs' argued that their work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. They said they should be allowed to challenge the law because there was a high likelihood that their communications would be monitored under the law in the future, and because it had forced them to take “costly and burdensome” measures to protect the confidentiality of their communications.
But the judge, John G. Koeltl of the Southern District of New York, dismissed the case, ruling that the plaintiffs did not have “standing” to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.
Last week, the ACLU asked an appeals court to overturn Judge Koeltl’s decision. Jameel Jaffer, Director of the ACLU National Security Project, said, "To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact, it's possible that no one will ever be able to prove what the court says is required.”
The ACLU position is that judicial review is necessary because the plaintiffs have been, and continue to be, injured by what it calls “the unconstitutional spying statute.”
“Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised,” the ACLU says.
As a result, it adds, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are ‘ethically required by codes of professional conduct’ to protect the confidentiality of their communications.” The ACLU also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.
"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," says Jaffer. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws,” he asserts.
"If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."
In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.
In July 2008, the FISA Amendments Act of 2008 (FAA) was signed by then-President George W. Bush, who admitted that, in the wake of the terrorist attacks of September 11, 2001, he had authorized intelligence agencies to disregard the FISA law and conduct warrantless wiretaps. Bush then asked Congress to, in effect, make the practice lawful.
The FAA was presented as a way of “updating” the Foreign Intelligence Surveillance Act (FISA). But according to the ACLU, “the law meant to ‘update’ FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant.”
The ACLU lawsuit was filed on the same day the FAA was signed into law.
Critics have asserted that the Administration's warrantless spying program is a violation of the Fourth Amendment to the United States Constitution against warrantless search and a criminal violation of FISA. The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a court order and probable cause.
Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gave the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.
The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."
This is not the first time Congressional action has impacted FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.
Several provisions of the Patriot Act are due to expire at the end of this year, and Congress is currently considering changes to these provisions.
The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 by Senator Edward M. Kennedy of Massachusetts and signed into law by President Jimmy Carter in 1978.
The act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s use of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.
The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
The Act returned to public prominence in December 2005 following publication by The New York Times of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency (NSA) since at least 2002.
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