By William Fisher
Immigrants-rights activists are virtually unanimous in their endorsement of proposed legislation that would change decades of U.S. asylum practices. But proponents of the legislation fear it may never find its way out of the U.S. Senate to the President’s desk.
Senator Patrick Leahy introduced the Refugee Protection Act of 2010 (S.3113) back in March. The objective of the bill is to “affirm the U.S. commitment to provide refuge to individuals fleeing persecution in their homelands.”
It helps restore protection to deserving individuals fleeing persecution and torture, who have been denied refuge under increasingly restrictive immigration laws and court decisions. The bill protects women and girls fleeing gender-based harms -- such as forced marriage, female genital cutting, honor killings, and domestic violence -- children seeking asylum on their own, traumatized or isolated refugees who are unable to file an application for asylum within one year of arrival to the U.S., and other vulnerable victims of persecution.
But Congress-watchers point out that “historically, major refugee and immigration reform bills have not moved through Congress the same year that they were introduced. In addition, the Senate calendar has been so choked with health care legislation and other “must pass” bill that the House of Representatives is now referring to the upper body as “the place where bills go to die.”
Finally, the status of the Leahy bill could change if The White House decides to introduce comprehensive immigration legislation during the current session of Congress.
Meanwhile, pro-immigration groups are lobbying senators to obtain more co-sponsors. Thus far, all are Democrats; getting two or three Republicans is one of the objectives of the White House, but immigration is one of the most predictable third rails of American politics, especially in a mid-term election year.
But if grassroots support were ever enough to get a bill through the Senate, Leahy’s legislation would have smooth sailing. It has been lavishly endorsed by more than 25 of the country’s leading immigration organizations.
One of the most respected, The Center for Gender and Refugee Studies at the University of California Hastings, said the legislation “makes critical reforms to our asylum laws and procedures, and helps bring the U.S. in line with its treaty obligations.”
Bill Frelick, director of Human Rights Watch's refugee policy program, told IPS, “The bill identifies the serious gaps and overly restrictive provisions in the US refugee and asylum system—the overly broad definition of terrorist activities for inadmissibility; the one-year filing deadline for asylum claims; disparate treatment of different nationality groups interdicted at sea; the lack of legal assistance for particularly vulnerable asylum seekers; the one-year delay in allowing refugees and asylees to adjust to lawful permanent resident status.”
In addition, he added, the legislation “confirms reforms that the Obama Administration appears to be trying to implement administratively, such as paroling from detention asylum seekers who establish a credible fear of persecution and promulgating regulations governing conditions of detention.”
The American Civil Liberties Union (ACLU) called on the Senate to swiftly pass the bill. “The Refugee Protection Act is a crucial step towards removing some of the obstacles that have prevented victims of persecution from obtaining refugee protection in the U.S.,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “The Senate should take Senator Leahy’s lead and pass this bill as soon as possible.”
Amnesty International USA applauded Senator Leahy’s efforts, which it said would “reposition the US as a champion of refugee rights in the 21st century.”
"Thirty years ago this week, Congress passed landmark legislation that created important standards for America's response to refugees seeking our protection," said Human Rights First's Eleanor Acer. "In the decades since then, America has faltered in its commitment to the persecuted. Today, Senators Leahy and Levin have introduced legislation that will put our nation back on track and strengthen U.S. refugee protection laws so that they can once again reflect our values and commitments."
Leahy’s legislation includes provisions that would eliminate the one year asylum filing deadline that bars refugees with well-founded fears of persecution from asylum; remove barriers that prevent some asylum seekers from receiving prompt review by the immigration courts of detention decisions so that these asylum seekers are not subject to prolonged and arbitrary detention; clarify the "particular social group" basis and "nexus" requirements for asylum so that the asylum requests of vulnerable individuals, including women fleeing gender-based persecution and refugees persecuted for their sexual orientation, are adjudicated fairly and consistently; and protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that our immigration laws target actual terrorists, as opposed to hurting thousands of legitimate refugees who are not guilty of any wrongdoing and pose no threat to American security.
The legislation has won the endorsement of the nation’s leading immigration advocates, including the U.S. Conference of Catholic Bishops, the International Rescue Committee, the National Immigration Forum, the American Immigration Association, the American Bar Association, and the U.S. Commission on International Religious Freedom.
The legislation would make several critical reforms to U.S. asylum laws. Notably, the bill clarifies definitions of what actions constitute “material support” to ensure that the innocent acts of asylum-seekers are not mislabeled as terrorist activities. The bill promotes efficient immigration proceedings by allowing the Attorney General to appoint immigration counsel where fair resolution or effective adjudication of proceedings would be served by appointment of counsel.
The bill also establishes a nationwide, secure “alternatives to detention” program, and institutes detention reforms to ensure access to counsel, medical care, religious practice and family contact visits. Finally, the bill restores judicial review to a fair and reasonable standard consistent with administrative law principles.
One of the cruelest ironies for people seeking protection in the US – many of whom have been detained and tortured at home – is that they are subject to mandatory detention as soon as they request “safety” here. Despite the fact that this law is in direct violation of obligations under the Refugee Convention, the US continues to use detention as a means to deter refugees from seeking asylum or to encourage them to abandon their asylum applications.
Thursday, April 08, 2010
Tuesday, April 06, 2010
Feel Safer Now?
By William Fisher
I write a lot of stories, news mostly. They’re carried by InterPress News Service. I’ve been doing this for a very long time, so I’m usually able to separate myself from what I’m writing about so I don’t get emotionally involved.
But there are those times when I find myself getting so angry over the subject of the story I’m writing that I can’t write it.
Usually, when that happens, I distract myself. I write another story. I watch a ballgame. I play some old standards on the piano. Something.
But this time, none of my usual distractions helped very much. I am still angry; in fact, I am furious. Furious enough to try to tell this story. Here goes:
This is a story about a fellow named Syed Fahad Hashmi. For the last close to three years, this guy has been living in solitary confinement in a federal lockup, awaiting a trial.
He is under 24-hour video and audio surveillance, even when he uses the toilet. He eats all his meals in his small cell. He is not allowed to communicate with other prisoners. He is a Muslim but is not allowed to participate in group prayer. He is not allowed to phone anyone but his lawyer. He did not even have his free choice of that lawyer and had to take one approved by the government.
The newspapers he receives have whole sections cut out of them by the government. They are always at least a month old. Once a day, for an hour, he is taken to another room where he remains in isolation. He cannot read any translated documents unless the translator is pre-approved by the government. Contact with the media is forbidden.
For one hour every other week, one member of his family can “visit” through a heavy screen. No touching or hugging is allowed or possible. Sometimes the government takes away his family visits as punishment. He once lost his visits for three months; he was seen shadow boxing in his cell and when asked what he was doing his response apparently failed to pass muster with the authorities.
Who is Syed Fahad Hashmi? Well, for starters, he’s an American citizen. He grew up in Queens and attended Brooklyn College. He is an outspoken Muslim activist. Does that mean he’s a terrorist? Only if you’re Steve King.
After Brooklyn College, where Hashmi’s profs remember him as a guy who loved to engage in debate, he moved to London where he earned a master’s degree in international relations. And that’s where his current troubles began.
An acquaintance from America phoned him at his London apartment and asked if he could stay with Hashmi. He brought a suitcase, later discovered to be filled with raincoats, ponchos and socks.
Now Hashmi was accused of being involved with al Qaeda because the government claims that the rain gear in the suitcase was “military gear” reportedly headed for Afghanistan. Hashmi also allowed his cell phone to be used, and whoever used it allegedly contacted some bad guys from al Qaeda.
Hashmi was arrested based on the testimony of Junaid Babar, an informant attempting to get a reduction in his own 70-year prison sentence. This was the guy who had briefly stayed in Hashmi's apartment in London
So, because of a suitcase full of raingear, and a cellphone allegedly used by someone to contact some unsavory dudes, an American citizen is held in solitary confinement for almost three years?
The answer is yes – which will be totally counter-intuitive to anyone with even a passing familiarity with the U.S. Constitution. Fashmi is held under Justice Department rules known as SAMs – Special Administrative Measures. He is held so he won’t escape. He is held so he can’t contact any Al Qaeda operatives.
Now, I have no idea whether Hashmi is guilty or not. That’s why we have trials.
But what about the Constitution? What about the presumption of innocence until proven guilty? What about the Constitutional guarantee of a speedy trial? And an attorney of our choice?
Those rules are evidently abandoned the instant someone utters the words Al Qaeda.
And how about the proscription against cruel and unusual punishment? Does three years in solitary sound “cruel” and “unusual?”
Well, the medical testimony presented in this case concluded that “after 60 days in solitary people’s mental state begins to break down.” According to Bill Quigley of the Center for Constitutional Rights, “That means a person will start to experience panic, anxiety, confusion, headaches, heart palpitations, sleep problems, withdrawal, anger, depression, despair, and over-sensitivity. Over time this can lead to severe psychiatric trauma and harms like psychosis, distortion of reality, hallucinations, mass anxiety and acute confusion. Essentially, the mind disintegrates.”
That’s why extended isolation is banned by international treaties as a form of torture. Just ask John McCain whether his life in solitary confinement affected his mind.
Meanwhile, Hashmi’s case has become something of a cause celebre. His supporters have staged demonstrations outside his jail, launched a website
(www.freefahad.com) and worked to alert the public to his plight. And prominent figures such as Nat Hentoff, Amy Goodman, Chris Hedges and his old Brooklyn College professor, Jeanne Theoharris, have all written articles about Hashmi and his vanishing Constitutional guarantees.
Now, finally, Hashmi has a trial date – April 28. He will be tried for conspiring to send money and military gear -- socks and rainproof ponchos -- to al Qaeda associates in Pakistan.
And my lawyer friends tell me that the way the “material support” statute is written, you could convict a ham sandwich of supporting al Qaeda.
If this case didn’t make you angry, you need to take a refresher course in American History or Civics 101.
And you need to do it right away! Before the Constitution disappears altogether.
I write a lot of stories, news mostly. They’re carried by InterPress News Service. I’ve been doing this for a very long time, so I’m usually able to separate myself from what I’m writing about so I don’t get emotionally involved.
But there are those times when I find myself getting so angry over the subject of the story I’m writing that I can’t write it.
Usually, when that happens, I distract myself. I write another story. I watch a ballgame. I play some old standards on the piano. Something.
But this time, none of my usual distractions helped very much. I am still angry; in fact, I am furious. Furious enough to try to tell this story. Here goes:
This is a story about a fellow named Syed Fahad Hashmi. For the last close to three years, this guy has been living in solitary confinement in a federal lockup, awaiting a trial.
He is under 24-hour video and audio surveillance, even when he uses the toilet. He eats all his meals in his small cell. He is not allowed to communicate with other prisoners. He is a Muslim but is not allowed to participate in group prayer. He is not allowed to phone anyone but his lawyer. He did not even have his free choice of that lawyer and had to take one approved by the government.
The newspapers he receives have whole sections cut out of them by the government. They are always at least a month old. Once a day, for an hour, he is taken to another room where he remains in isolation. He cannot read any translated documents unless the translator is pre-approved by the government. Contact with the media is forbidden.
For one hour every other week, one member of his family can “visit” through a heavy screen. No touching or hugging is allowed or possible. Sometimes the government takes away his family visits as punishment. He once lost his visits for three months; he was seen shadow boxing in his cell and when asked what he was doing his response apparently failed to pass muster with the authorities.
Who is Syed Fahad Hashmi? Well, for starters, he’s an American citizen. He grew up in Queens and attended Brooklyn College. He is an outspoken Muslim activist. Does that mean he’s a terrorist? Only if you’re Steve King.
After Brooklyn College, where Hashmi’s profs remember him as a guy who loved to engage in debate, he moved to London where he earned a master’s degree in international relations. And that’s where his current troubles began.
An acquaintance from America phoned him at his London apartment and asked if he could stay with Hashmi. He brought a suitcase, later discovered to be filled with raincoats, ponchos and socks.
Now Hashmi was accused of being involved with al Qaeda because the government claims that the rain gear in the suitcase was “military gear” reportedly headed for Afghanistan. Hashmi also allowed his cell phone to be used, and whoever used it allegedly contacted some bad guys from al Qaeda.
Hashmi was arrested based on the testimony of Junaid Babar, an informant attempting to get a reduction in his own 70-year prison sentence. This was the guy who had briefly stayed in Hashmi's apartment in London
So, because of a suitcase full of raingear, and a cellphone allegedly used by someone to contact some unsavory dudes, an American citizen is held in solitary confinement for almost three years?
The answer is yes – which will be totally counter-intuitive to anyone with even a passing familiarity with the U.S. Constitution. Fashmi is held under Justice Department rules known as SAMs – Special Administrative Measures. He is held so he won’t escape. He is held so he can’t contact any Al Qaeda operatives.
Now, I have no idea whether Hashmi is guilty or not. That’s why we have trials.
But what about the Constitution? What about the presumption of innocence until proven guilty? What about the Constitutional guarantee of a speedy trial? And an attorney of our choice?
Those rules are evidently abandoned the instant someone utters the words Al Qaeda.
And how about the proscription against cruel and unusual punishment? Does three years in solitary sound “cruel” and “unusual?”
Well, the medical testimony presented in this case concluded that “after 60 days in solitary people’s mental state begins to break down.” According to Bill Quigley of the Center for Constitutional Rights, “That means a person will start to experience panic, anxiety, confusion, headaches, heart palpitations, sleep problems, withdrawal, anger, depression, despair, and over-sensitivity. Over time this can lead to severe psychiatric trauma and harms like psychosis, distortion of reality, hallucinations, mass anxiety and acute confusion. Essentially, the mind disintegrates.”
That’s why extended isolation is banned by international treaties as a form of torture. Just ask John McCain whether his life in solitary confinement affected his mind.
Meanwhile, Hashmi’s case has become something of a cause celebre. His supporters have staged demonstrations outside his jail, launched a website
(www.freefahad.com) and worked to alert the public to his plight. And prominent figures such as Nat Hentoff, Amy Goodman, Chris Hedges and his old Brooklyn College professor, Jeanne Theoharris, have all written articles about Hashmi and his vanishing Constitutional guarantees.
Now, finally, Hashmi has a trial date – April 28. He will be tried for conspiring to send money and military gear -- socks and rainproof ponchos -- to al Qaeda associates in Pakistan.
And my lawyer friends tell me that the way the “material support” statute is written, you could convict a ham sandwich of supporting al Qaeda.
If this case didn’t make you angry, you need to take a refresher course in American History or Civics 101.
And you need to do it right away! Before the Constitution disappears altogether.
Monday, April 05, 2010
“Experiment in Social Isolation”
By William Fisher
Two federal prisons are being used overwhelmingly to hold Muslim prisoners and prisoners with unpopular political beliefs, and are practicing religious profiling, retaliation and arbitrary punishment.
These are the principal allegations in a lawsuit filed by the Center for Constitutional Rights (CCR) against U.S. Attorney General Eric Holder and the U.S. Department of Justice (DOJ). The DOJ houses the U.S. Bureau of Prisons (BOP), which runs the two units, one in Terre Haute, Indiana, the other in Marion, Illinois.
“These units are an experiment in social isolation,” said CCR Attorney Alexis Agathocleous. “People are being put in these extraordinarily restrictive units without being told why and without any meaningful review. Dispensing with due process creates a situation ripe for abuse; in this case, it has allowed for a pattern of religious profiling, retaliation and arbitrary punishment. This is precisely what the rule of law and the Constitution forbid.”
At the same time, some prisoners at the CMU are protesting their being designated as “terrorists” by the DOJ, despite never having been convicted of any terror-related crime.
One such prisoner is Dr. Rafil Dhafir, an American Iraqi-born upstate-New York oncologist. He was arrested by 85 federal agents who descended on his home, handcuffing him in his driveway. Then Attorney General John D. Ashcroft referred to him as a terrorism supporter apprehended
Dhafir was convicted in 2005 and sentenced to 22 years in prison for violating the Iraqi sanctions by sending money to Iraq through his charity, “Help the Needy,” and for fraud, money laundering, tax evasion, and a variety of other nonviolent crimes. Five other people, including his wife, had already pleaded guilty to charges in connection with the case.
In the period leading up to his trial, political figures strove to paint Dhafir with a broad terrorist brush. Then New York State governor George E. Pataki described Dhafir's as a "money laundering case to help terrorist organizations . . . conduct horrible acts." The New York Times reported that prosecutors hinted at national security reasons for holding Dhafir without bail. And Federal prosecutors heralded his arrest as another blow in the Justice Department's war on terrorism.
However, federal prosecutors never filed any charges related to terrorism nor did they prove any link to terrorists. According to the American Civil Liberties Union (ACLU), “this turned out to be a case of white-collar crime; the trial process was filled with descriptions of financial statements and details of financial transactions.”
In a letter to a supporter, obtained by IPS, Dr. Dhafir wrote, “I am really upset about the lies concerning the DOJ list. I have every intention of going after them to correct this falsehood by any legal means. I think that we should publicize this as much as possible and ask people to protest these lies. I also ask your input regarding how to remedy this travesty.”
The CCR lawsuit is challenging violations of fundamental constitutional rights, including the right to due process, at the two experimental prison units called “Communications Management Units” (CMUs). It was brought on behalf of five current and former prisoners, and the spouses of two prisoners.
The two experimental prison units were created in 2006 and 2007, during the administration of George W. Bush. They were designed to isolate certain prisoners from the rest of the prison population and the outside world. They were called ‘Communications Management Units’ or ‘CMUs.’
The CCR says that, “Despite the fact that their creation marked a dramatic change in BOP policy, they were opened without the required opportunity for public notice and comment.”
The group adds, “Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities. Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as ‘ecoterrorists’.”
“Transfers to the CMU are not explained; nor are prisoners told how release into less restrictive confinement may be earned as there is no review process. Lawyers say that because these transfers are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged,” according to the CCR.
“In addition to heavily restricted telephone and visitation access, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children or spouses during visits. Attorneys say this blanket ban on contact visitation, which is unique in the federal prison system, not only causes suffering to the families of the incarcerated men, but is a violation of fundamental constitutional rights,” the CCR says.
Between 65 and 72 percent of CMU prisoners are Muslim men, a fact that attorneys say demonstrates that the CMUs were created to allow for the segregation and restrictive treatment of Muslims based on the discriminatory belief that such prisoners are more likely than others to pose a threat to prison security.
Other prisoners appear to be transferred to the CMU because of other protected First Amendment activity, such as speaking out on social justice issues or filing grievances in prison or court regarding conditions and abuse.
According the Bureau of Prisons, the 76 inmates housed in the isolation units are there to prevent them from furthering acts of terrorism. But civil liberties advocates say the extreme conditions in the CMUs amount to abuse and that the program violates the inmate’s constitutional rights. The BOP says CMUs were set up after authorities discovered that some Islamic militants were able to send messages abroad from their prison cells.
The lawsuit triggered angry responses – both for and against the CMUs – in the blogosphere. One fairly typical “pro” response: “Here we go again, our authorities try to protect us, and Muslims look to reverse policies by claiming discrimination. For the record, the Fort Hood terrorist Hasan also claimed discrimination.”
Two federal prisons are being used overwhelmingly to hold Muslim prisoners and prisoners with unpopular political beliefs, and are practicing religious profiling, retaliation and arbitrary punishment.
These are the principal allegations in a lawsuit filed by the Center for Constitutional Rights (CCR) against U.S. Attorney General Eric Holder and the U.S. Department of Justice (DOJ). The DOJ houses the U.S. Bureau of Prisons (BOP), which runs the two units, one in Terre Haute, Indiana, the other in Marion, Illinois.
“These units are an experiment in social isolation,” said CCR Attorney Alexis Agathocleous. “People are being put in these extraordinarily restrictive units without being told why and without any meaningful review. Dispensing with due process creates a situation ripe for abuse; in this case, it has allowed for a pattern of religious profiling, retaliation and arbitrary punishment. This is precisely what the rule of law and the Constitution forbid.”
At the same time, some prisoners at the CMU are protesting their being designated as “terrorists” by the DOJ, despite never having been convicted of any terror-related crime.
One such prisoner is Dr. Rafil Dhafir, an American Iraqi-born upstate-New York oncologist. He was arrested by 85 federal agents who descended on his home, handcuffing him in his driveway. Then Attorney General John D. Ashcroft referred to him as a terrorism supporter apprehended
Dhafir was convicted in 2005 and sentenced to 22 years in prison for violating the Iraqi sanctions by sending money to Iraq through his charity, “Help the Needy,” and for fraud, money laundering, tax evasion, and a variety of other nonviolent crimes. Five other people, including his wife, had already pleaded guilty to charges in connection with the case.
In the period leading up to his trial, political figures strove to paint Dhafir with a broad terrorist brush. Then New York State governor George E. Pataki described Dhafir's as a "money laundering case to help terrorist organizations . . . conduct horrible acts." The New York Times reported that prosecutors hinted at national security reasons for holding Dhafir without bail. And Federal prosecutors heralded his arrest as another blow in the Justice Department's war on terrorism.
However, federal prosecutors never filed any charges related to terrorism nor did they prove any link to terrorists. According to the American Civil Liberties Union (ACLU), “this turned out to be a case of white-collar crime; the trial process was filled with descriptions of financial statements and details of financial transactions.”
In a letter to a supporter, obtained by IPS, Dr. Dhafir wrote, “I am really upset about the lies concerning the DOJ list. I have every intention of going after them to correct this falsehood by any legal means. I think that we should publicize this as much as possible and ask people to protest these lies. I also ask your input regarding how to remedy this travesty.”
The CCR lawsuit is challenging violations of fundamental constitutional rights, including the right to due process, at the two experimental prison units called “Communications Management Units” (CMUs). It was brought on behalf of five current and former prisoners, and the spouses of two prisoners.
The two experimental prison units were created in 2006 and 2007, during the administration of George W. Bush. They were designed to isolate certain prisoners from the rest of the prison population and the outside world. They were called ‘Communications Management Units’ or ‘CMUs.’
The CCR says that, “Despite the fact that their creation marked a dramatic change in BOP policy, they were opened without the required opportunity for public notice and comment.”
The group adds, “Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities. Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as ‘ecoterrorists’.”
“Transfers to the CMU are not explained; nor are prisoners told how release into less restrictive confinement may be earned as there is no review process. Lawyers say that because these transfers are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged,” according to the CCR.
“In addition to heavily restricted telephone and visitation access, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children or spouses during visits. Attorneys say this blanket ban on contact visitation, which is unique in the federal prison system, not only causes suffering to the families of the incarcerated men, but is a violation of fundamental constitutional rights,” the CCR says.
Between 65 and 72 percent of CMU prisoners are Muslim men, a fact that attorneys say demonstrates that the CMUs were created to allow for the segregation and restrictive treatment of Muslims based on the discriminatory belief that such prisoners are more likely than others to pose a threat to prison security.
Other prisoners appear to be transferred to the CMU because of other protected First Amendment activity, such as speaking out on social justice issues or filing grievances in prison or court regarding conditions and abuse.
According the Bureau of Prisons, the 76 inmates housed in the isolation units are there to prevent them from furthering acts of terrorism. But civil liberties advocates say the extreme conditions in the CMUs amount to abuse and that the program violates the inmate’s constitutional rights. The BOP says CMUs were set up after authorities discovered that some Islamic militants were able to send messages abroad from their prison cells.
The lawsuit triggered angry responses – both for and against the CMUs – in the blogosphere. One fairly typical “pro” response: “Here we go again, our authorities try to protect us, and Muslims look to reverse policies by claiming discrimination. For the record, the Fort Hood terrorist Hasan also claimed discrimination.”
IG Blasts 287(g)
By William Fisher
A controversial government program that enlists local police officers and sheriff’s deputies to help enforce the nation’s immigration laws is verging on being out of control and unable to assess whether it is meeting its stated goals.
These are among the findings in a new report released by the Department of Homeland Security's Office of Inspector General (OIG) on the program known as 287(g). The program, administered by Immigration and Custom Enforcement (ICE), authorizes local authorities to enforce federal immigration laws.
Calling ICE “an agency that has lost its way,” Mary Giovagnoli, Director of the Immigration Policy Center, an immigration advocacy group, said the IG’s report was “a damning critique of the 287(g) program, confirming many of the criticisms levied against the program by community leaders, law enforcement officials, and immigration groups.”
The report “raises serious questions about the wisdom of state and local immigration enforcement partnerships with ICE,” she said, adding:
“There is no evidence that 287(g) makes communities safer or improves our broken immigration system. In the rush to engage state and local law enforcement on federal immigration matters, ICE has created a program that lacks oversight, undermines community relations, and breeds mistrust. As proven time and time again, a deportation-driven strategy exacts a high toll on individuals and communities with little real impact in stopping illegal immigration,” she said.
"The OIG report is further evidence that the Administration has yet to distinguish between deporting large numbers of immigrants and making us safe. In the rush to engage state and local law enforcement on federal immigration matters, ICE has created a program that lacks oversight, undermines community relations, and breeds mistrust. As proven time and time again, a deportation-driven strategy exacts a high toll on individuals and communities with little real impact in stopping illegal immigration."
Giovagnoli, an immigration lawyer who formerly served with ICE and several of its predecessor agencies, told IPS that ICE “needs to create an Ombudsman with the skills and resources to resolve conflicts and adjudicate complaints quickly and fairly.”
The IG found that the 287(g)program is poorly managed and supervised, and ICE has not instituted controls to promote effective program operations; lacks strict guidelines for implementation, which results in different implementation methods in different jurisdictions; lacks an adequate and consistent vetting process for jurisdictions that apply for the program, as well as for officers applying to be deputized under the program; does not gather data necessary to track how the program is being used; lacks a process for reviewing Memorandums of Agreement (MOAs) on a regular basis, and for modifying or terminating an MOA as necessary; has not taken action against law enforcement agencies that are clearly violating the terms of the MOA, nor adequately trained deputized officers about immigration law or their authority under the MOA; lacks public outreach efforts, and often provides the public with misleading or inaccurate information” about the program.
The 287(g)program has created tensions within communities where local law enforcement agents have used their delegated authority to conduct large-scale operations in Latino and immigrant communities. Numerous law enforcement organizations and officials have cautioned against participating in 287(g) partnerships because they “foster community distrust and operate with inadequate supervision.”
Brittney Nystrom of the National Immigration Forum (NIF), said the IG’s report “confirms our worst suspicions about this program.”
“While some local law enforcement agencies continue to use this program to intimidate and terrorize immigrant communities, ICE does not have the structures in place to evaluate or restrain the actions of rogue enforcement agencies,” she said.
She noted that the Inspector General is calling attention to the program's inability to safeguard civil rights and civil liberties, to assess the program's effectiveness in targeting dangerous individuals, to properly train officers enrolling in the program, to receive and respond to community input, and to oversee local officers enrolled in the program. “In sum, the Inspector General made 33 recommendations for fundamental reforms necessary to make the program accountable and effective in its mission, “she said, adding, “We believe the program has proven itself to be beyond repair and should be terminated.”
She said that, “Given the well-documented abuses committed by some local enforcement agencies enrolled in this program, the lack of concern with the civil rights record of enrolled agencies is astounding.”
“Also troubling is the program's the lack of ability to track whether it meets ICE's stated goals for the program-to remove non-citizens who pose a threat to public safety or a danger to the community. In fact, the IG found that ICE's performance measures are more concerned with the quantity of arrests rather than adherence to program goals. This raises again the specter of arrest quotas driving ICE's detention and removal operations, which have been the subject of criticism earlier this week,” she said.
The IG report said, “We observed instances in which Immigration and Customs Enforcement and participating law enforcement agencies were not operating in compliance with the terms of the agreements. We also noted several areas in which Immigration and Customs Enforcement had not instituted controls to promote effective program operations and address related risks.”
The IG report comes on the heels of recent revelations that ICE is failing to prioritize genuine threats to the community. The Washington Post recently reported that a senior ICE official sent a memo to field offices outlining an enforcement strategy which emphasized large enforcement quotas rather than focusing on serious criminals. Similarly, the OIG found that 287(g) programs have not prioritized serious criminal immigrants, and performance standards by which local officers are evaluated focus on the number of immigrants encountered, not the seriousness of their crimes.
Section 287(g) refers to a law, written into the 1996 comprehensive immigration reforms, which for the frst time in US history created a formal mechanism for federal executives to extend to local communitybased agencies the arrest and incarceration powers originally reserved for immigration police stationed at the borders.
The IG’s report closely channels a finding by the Government Accountability Office (GAO), the investigative arm of Congress, The GAO concluded that immigration bureau officials had not closely supervised how their agreements with the local agencies had been carried out, had inconsistently described the program’s goals, and had failed to spell out what data should be tracked, collected and reported.
A controversial government program that enlists local police officers and sheriff’s deputies to help enforce the nation’s immigration laws is verging on being out of control and unable to assess whether it is meeting its stated goals.
These are among the findings in a new report released by the Department of Homeland Security's Office of Inspector General (OIG) on the program known as 287(g). The program, administered by Immigration and Custom Enforcement (ICE), authorizes local authorities to enforce federal immigration laws.
Calling ICE “an agency that has lost its way,” Mary Giovagnoli, Director of the Immigration Policy Center, an immigration advocacy group, said the IG’s report was “a damning critique of the 287(g) program, confirming many of the criticisms levied against the program by community leaders, law enforcement officials, and immigration groups.”
The report “raises serious questions about the wisdom of state and local immigration enforcement partnerships with ICE,” she said, adding:
“There is no evidence that 287(g) makes communities safer or improves our broken immigration system. In the rush to engage state and local law enforcement on federal immigration matters, ICE has created a program that lacks oversight, undermines community relations, and breeds mistrust. As proven time and time again, a deportation-driven strategy exacts a high toll on individuals and communities with little real impact in stopping illegal immigration,” she said.
"The OIG report is further evidence that the Administration has yet to distinguish between deporting large numbers of immigrants and making us safe. In the rush to engage state and local law enforcement on federal immigration matters, ICE has created a program that lacks oversight, undermines community relations, and breeds mistrust. As proven time and time again, a deportation-driven strategy exacts a high toll on individuals and communities with little real impact in stopping illegal immigration."
Giovagnoli, an immigration lawyer who formerly served with ICE and several of its predecessor agencies, told IPS that ICE “needs to create an Ombudsman with the skills and resources to resolve conflicts and adjudicate complaints quickly and fairly.”
The IG found that the 287(g)program is poorly managed and supervised, and ICE has not instituted controls to promote effective program operations; lacks strict guidelines for implementation, which results in different implementation methods in different jurisdictions; lacks an adequate and consistent vetting process for jurisdictions that apply for the program, as well as for officers applying to be deputized under the program; does not gather data necessary to track how the program is being used; lacks a process for reviewing Memorandums of Agreement (MOAs) on a regular basis, and for modifying or terminating an MOA as necessary; has not taken action against law enforcement agencies that are clearly violating the terms of the MOA, nor adequately trained deputized officers about immigration law or their authority under the MOA; lacks public outreach efforts, and often provides the public with misleading or inaccurate information” about the program.
The 287(g)program has created tensions within communities where local law enforcement agents have used their delegated authority to conduct large-scale operations in Latino and immigrant communities. Numerous law enforcement organizations and officials have cautioned against participating in 287(g) partnerships because they “foster community distrust and operate with inadequate supervision.”
Brittney Nystrom of the National Immigration Forum (NIF), said the IG’s report “confirms our worst suspicions about this program.”
“While some local law enforcement agencies continue to use this program to intimidate and terrorize immigrant communities, ICE does not have the structures in place to evaluate or restrain the actions of rogue enforcement agencies,” she said.
She noted that the Inspector General is calling attention to the program's inability to safeguard civil rights and civil liberties, to assess the program's effectiveness in targeting dangerous individuals, to properly train officers enrolling in the program, to receive and respond to community input, and to oversee local officers enrolled in the program. “In sum, the Inspector General made 33 recommendations for fundamental reforms necessary to make the program accountable and effective in its mission, “she said, adding, “We believe the program has proven itself to be beyond repair and should be terminated.”
She said that, “Given the well-documented abuses committed by some local enforcement agencies enrolled in this program, the lack of concern with the civil rights record of enrolled agencies is astounding.”
“Also troubling is the program's the lack of ability to track whether it meets ICE's stated goals for the program-to remove non-citizens who pose a threat to public safety or a danger to the community. In fact, the IG found that ICE's performance measures are more concerned with the quantity of arrests rather than adherence to program goals. This raises again the specter of arrest quotas driving ICE's detention and removal operations, which have been the subject of criticism earlier this week,” she said.
The IG report said, “We observed instances in which Immigration and Customs Enforcement and participating law enforcement agencies were not operating in compliance with the terms of the agreements. We also noted several areas in which Immigration and Customs Enforcement had not instituted controls to promote effective program operations and address related risks.”
The IG report comes on the heels of recent revelations that ICE is failing to prioritize genuine threats to the community. The Washington Post recently reported that a senior ICE official sent a memo to field offices outlining an enforcement strategy which emphasized large enforcement quotas rather than focusing on serious criminals. Similarly, the OIG found that 287(g) programs have not prioritized serious criminal immigrants, and performance standards by which local officers are evaluated focus on the number of immigrants encountered, not the seriousness of their crimes.
Section 287(g) refers to a law, written into the 1996 comprehensive immigration reforms, which for the frst time in US history created a formal mechanism for federal executives to extend to local communitybased agencies the arrest and incarceration powers originally reserved for immigration police stationed at the borders.
The IG’s report closely channels a finding by the Government Accountability Office (GAO), the investigative arm of Congress, The GAO concluded that immigration bureau officials had not closely supervised how their agreements with the local agencies had been carried out, had inconsistently described the program’s goals, and had failed to spell out what data should be tracked, collected and reported.
Saturday, April 03, 2010
Al Haramain: Waiting for the Other Shoe to Drop
By William Fisher
As legal experts mull over the long-term implications of last week’s court decision declaring illegal the program of warrantless surveillance by the George W. Bush administration, attention now focuses on whether the Obama Justice Department will appeal the controversial ruling.
If it does, says the California lawyer who won last week’s landmark decision, “it will signal that Obama thinks it’s OK for him to permanently inherit Bush’s legacy of cowboy governance.”
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct
Islamic charity in Oregon.
Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets
privilege as amounting to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no
decision about whether to appeal.
Among legal experts, however, there was little hesitation. Most of those we contacted hailed the decision as the beginning of the end of unfettered use of the state secrets privilege.
Here’s what some of them had to say:
Steven Aftergood, head of the government secrecy program of the Federation of American Scientists:
“At least by implication, the ruling means that aspects of President Bush's Terrorist Surveillance Program were illegal. Significantly, that determination was made by a court, based on a private complaint years after the fact, and not through congressional intelligence oversight. While Congress did enact the Foreign Intelligence Surveillance Act of 1978, which was the foundation of the court's ruling, contemporary congressional oversight alone would have left the Al-Haramain violation (and untold others) undiscovered and unpunished.
“The new ruling also leaves the state secrets privilege seemingly tarnished and in disrepute. ‘The Government does not rely on an assertion of the [state secrets privilege] to coverup alleged unlawful conduct’, government attorneys told the court. But had the Bush and Obama Administrations' use of the privilege prevailed, that is exactly what would have happened-- conduct that has now been found illegal would have been covered up.
“To the extent that there is a legitimate role for a state secrets privilege, the government might now be motivated to bolster the legitimacy of the privilege, perhaps through enactment of the pending State Secrets Protection Act. That bill would, among other things, provide for judicial review and validation of the substance of assertedly privileged evidence.
“Finally, the ruling casts new light retrospectively on the December 2005 New York Times story that exposed the Bush Administration's warrantless surveillance program. A cogent case has been made by Gabriel Schoenfeld (in Commentary Magazine, March 2006, and in his forthcoming book Necessary Secrets) that the Times story violated a statute that clearly prohibits unauthorized disclosure and publication of classified communications intelligence information. But it was the Times story that set the stage for the Al-Haramain lawsuit.
“With a conclusive judicial ruling that the reported surveillance was in significant respects unlawful, the Times' revelation of the classified surveillance program may more readily be seen as supporting and enabling the rule of law, not defying it.”
Daphne Eviatar of Human Rights First:
“The Al Haramain case is a great example of why courts shouldn't simply accept the government's claims that turning over information about possible government lawbreaking will endanger state secrets. Judge Walker was able to adjudicate this case without jeopardizing national security in any way.
“At the same time, this case underscores why Congress needs to pass a new law that prevents the government from seeking to dismiss these sorts of cases on "state secrets" grounds. The Obama administration insists that its new procedures for invoking the state secrets privilege are an adequate protection against its abuse. But in this case, the Justice Department once again tried to use the privilege to have a case dismissed that charged that the government had engaged in illegal conduct.
“Judge Walker has just affirmed that the government did indeed break the law by wiretapping an Islamic charity and its lawyers without a warrant. Unfortunately, many judges in other cases have simply accepted the government's ‘state secrets’ claims without question. Only by passing a new law narrowing the government's ability to invoke the state secrets privilege to dismiss a lawsuit can we be sure that the government isn't using the claim of "state secrets" to shield itself from liability for breaking the law.”
Prof. Peter Shane of Ohio State University law school:
“The Al-Haramain case strongly supports the value of enacting a legislative framework for the evaluation of state secrets claims. News stories thus far have generally focused on the unusual circumstances of the case, in which the plaintiffs were able to satisfy the trial judge of both their standing and their entitlement to relief without resorting to classified information.
“An equally important detail, however, is that the Court of Appeals had actually engaged in a confidential review of the classified document asserted to be privileged, and upheld the Government's right to protect the document only after judicial inspection of its contents. This strongly supports the notion that a properly circumscribed state secrets privilege can co-exist with the added protection of judicial review, and that it may be possible to allow national security cases to go forward in certain circumstances without compromising intelligence sources and methods.”
Scott Horton, civil rights attorney, lecturer at Columbia University law school and contributing editor to Harper’s Magazine:
“The Justice Department has loudly touted its new standards for the invocation of state secrets, in which a large number of high-level employees are involved before a decision is taken to claim it. That's fine and good, but it's strictly a matter of internal administration. And experience with Justice shows that their practice is quite simple: when in doubt claim state secrets.
“When a case will be embarrassing to Justice, claim state secrets to prevent embarrassment. And when a case will implicate the Justice Department in criminal conduct--by all means, claim state secrets. The Al-Haramain case shows, beyond any doubt, that state secrets was invoked to avoid disclosure of official government criminality, which is absolutely forbidden--a point that even Justice acknowledges.
“There is no discernible difference between the Bush and Obama Justice Departments on this point (and I would add that the conduct of the Obama Justice Department cannot be squared with official statements of policy made by President Obama, which suggests that it is still in some measure a rogue Justice Department).
“The Al-Haramain case reflects growing, and appropriate, judicial skepticism about the use of state secrets, and a growing recognition that Justice has made false or at least very tendentious statements to courts in connection with its invocation of state secrets. It also shows that courts can get around state secrets by precluding the use of classified information and instead deciding the matter entirely on the basis of what is not and cannot be classified. And it shows the courts drawing absolutely appropriate adverse inferences from the Justice Department's obsessive use of secrecy. It's a landmark case, and future litigants can find a road map to suing the government over illegal surveillance in it.”
And finally, there’s Jon Eisenberg, one of the lawyers in the case. Eisenberg says his law firm has done little else in the past four years than attempt to litigate the al Haramain case. He says he has spent much of that time “suspended between rage and disbelief.”
He said he could not understand why President Obama seemed “so determined to morph into former president George W. Bush.”
He speculated: Perhaps it was believing that he would need Republican votes to complete his legislative agenda and not wishing to alienate the opposition party. Perhaps he did not want to be the chief executive remembered for rolling back executive power. Maybe he believes that taking any other course would leave him and his party vulnerable to charges of being ‘soft on terrorism’.
But Eisenberg told us, “Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
"I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. If Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told us, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
The Obama administration insists that it is being more cautious than its predecessor in asserting the state secrets privilege, invoking it only when it's "absolutely necessary to protect national security."
But, as the Los Angeles Times points out in an editorial, “There is an easy way for Atty. Gen. Eric H. Holder Jr. to make good on that commitment: He should decline to appeal Walker's ruling.”
As legal experts mull over the long-term implications of last week’s court decision declaring illegal the program of warrantless surveillance by the George W. Bush administration, attention now focuses on whether the Obama Justice Department will appeal the controversial ruling.
If it does, says the California lawyer who won last week’s landmark decision, “it will signal that Obama thinks it’s OK for him to permanently inherit Bush’s legacy of cowboy governance.”
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct
Islamic charity in Oregon.
Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets
privilege as amounting to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no
decision about whether to appeal.
Among legal experts, however, there was little hesitation. Most of those we contacted hailed the decision as the beginning of the end of unfettered use of the state secrets privilege.
Here’s what some of them had to say:
Steven Aftergood, head of the government secrecy program of the Federation of American Scientists:
“At least by implication, the ruling means that aspects of President Bush's Terrorist Surveillance Program were illegal. Significantly, that determination was made by a court, based on a private complaint years after the fact, and not through congressional intelligence oversight. While Congress did enact the Foreign Intelligence Surveillance Act of 1978, which was the foundation of the court's ruling, contemporary congressional oversight alone would have left the Al-Haramain violation (and untold others) undiscovered and unpunished.
“The new ruling also leaves the state secrets privilege seemingly tarnished and in disrepute. ‘The Government does not rely on an assertion of the [state secrets privilege] to coverup alleged unlawful conduct’, government attorneys told the court. But had the Bush and Obama Administrations' use of the privilege prevailed, that is exactly what would have happened-- conduct that has now been found illegal would have been covered up.
“To the extent that there is a legitimate role for a state secrets privilege, the government might now be motivated to bolster the legitimacy of the privilege, perhaps through enactment of the pending State Secrets Protection Act. That bill would, among other things, provide for judicial review and validation of the substance of assertedly privileged evidence.
“Finally, the ruling casts new light retrospectively on the December 2005 New York Times story that exposed the Bush Administration's warrantless surveillance program. A cogent case has been made by Gabriel Schoenfeld (in Commentary Magazine, March 2006, and in his forthcoming book Necessary Secrets) that the Times story violated a statute that clearly prohibits unauthorized disclosure and publication of classified communications intelligence information. But it was the Times story that set the stage for the Al-Haramain lawsuit.
“With a conclusive judicial ruling that the reported surveillance was in significant respects unlawful, the Times' revelation of the classified surveillance program may more readily be seen as supporting and enabling the rule of law, not defying it.”
Daphne Eviatar of Human Rights First:
“The Al Haramain case is a great example of why courts shouldn't simply accept the government's claims that turning over information about possible government lawbreaking will endanger state secrets. Judge Walker was able to adjudicate this case without jeopardizing national security in any way.
“At the same time, this case underscores why Congress needs to pass a new law that prevents the government from seeking to dismiss these sorts of cases on "state secrets" grounds. The Obama administration insists that its new procedures for invoking the state secrets privilege are an adequate protection against its abuse. But in this case, the Justice Department once again tried to use the privilege to have a case dismissed that charged that the government had engaged in illegal conduct.
“Judge Walker has just affirmed that the government did indeed break the law by wiretapping an Islamic charity and its lawyers without a warrant. Unfortunately, many judges in other cases have simply accepted the government's ‘state secrets’ claims without question. Only by passing a new law narrowing the government's ability to invoke the state secrets privilege to dismiss a lawsuit can we be sure that the government isn't using the claim of "state secrets" to shield itself from liability for breaking the law.”
Prof. Peter Shane of Ohio State University law school:
“The Al-Haramain case strongly supports the value of enacting a legislative framework for the evaluation of state secrets claims. News stories thus far have generally focused on the unusual circumstances of the case, in which the plaintiffs were able to satisfy the trial judge of both their standing and their entitlement to relief without resorting to classified information.
“An equally important detail, however, is that the Court of Appeals had actually engaged in a confidential review of the classified document asserted to be privileged, and upheld the Government's right to protect the document only after judicial inspection of its contents. This strongly supports the notion that a properly circumscribed state secrets privilege can co-exist with the added protection of judicial review, and that it may be possible to allow national security cases to go forward in certain circumstances without compromising intelligence sources and methods.”
Scott Horton, civil rights attorney, lecturer at Columbia University law school and contributing editor to Harper’s Magazine:
“The Justice Department has loudly touted its new standards for the invocation of state secrets, in which a large number of high-level employees are involved before a decision is taken to claim it. That's fine and good, but it's strictly a matter of internal administration. And experience with Justice shows that their practice is quite simple: when in doubt claim state secrets.
“When a case will be embarrassing to Justice, claim state secrets to prevent embarrassment. And when a case will implicate the Justice Department in criminal conduct--by all means, claim state secrets. The Al-Haramain case shows, beyond any doubt, that state secrets was invoked to avoid disclosure of official government criminality, which is absolutely forbidden--a point that even Justice acknowledges.
“There is no discernible difference between the Bush and Obama Justice Departments on this point (and I would add that the conduct of the Obama Justice Department cannot be squared with official statements of policy made by President Obama, which suggests that it is still in some measure a rogue Justice Department).
“The Al-Haramain case reflects growing, and appropriate, judicial skepticism about the use of state secrets, and a growing recognition that Justice has made false or at least very tendentious statements to courts in connection with its invocation of state secrets. It also shows that courts can get around state secrets by precluding the use of classified information and instead deciding the matter entirely on the basis of what is not and cannot be classified. And it shows the courts drawing absolutely appropriate adverse inferences from the Justice Department's obsessive use of secrecy. It's a landmark case, and future litigants can find a road map to suing the government over illegal surveillance in it.”
And finally, there’s Jon Eisenberg, one of the lawyers in the case. Eisenberg says his law firm has done little else in the past four years than attempt to litigate the al Haramain case. He says he has spent much of that time “suspended between rage and disbelief.”
He said he could not understand why President Obama seemed “so determined to morph into former president George W. Bush.”
He speculated: Perhaps it was believing that he would need Republican votes to complete his legislative agenda and not wishing to alienate the opposition party. Perhaps he did not want to be the chief executive remembered for rolling back executive power. Maybe he believes that taking any other course would leave him and his party vulnerable to charges of being ‘soft on terrorism’.
But Eisenberg told us, “Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
"I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. If Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told us, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
The Obama administration insists that it is being more cautious than its predecessor in asserting the state secrets privilege, invoking it only when it's "absolutely necessary to protect national security."
But, as the Los Angeles Times points out in an editorial, “There is an easy way for Atty. Gen. Eric H. Holder Jr. to make good on that commitment: He should decline to appeal Walker's ruling.”
One of GWB’s Sand Castles Collapses – on Obama!
By William Fisher
The efforts of the Obama Administration to maintain the secrecy of the counter-terrorism policies of its predecessor, the administration of former President George W. Bush, hit a major speed bump last week.
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
The judge found that the plaintiffs had been “subjected to unlawful surveillance,” and ruled that the government was liable to pay them damages.
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the claim of the Department of Justice (DOJ) that the charity’s lawsuit should be dismissed because allowing it to go forward could reveal state secrets and compromise national security. That claim was first asserted by the Bush administration and continued under President Obama.
The judge said that such expansive use of the so-called state-secrets
privilege amounted to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
Even though Congress had enacted the warrant law “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority, “ the judge said that position would enable government officials to violate that law.
The Haramain case has been especially closely watched because the government inadvertently disclosed a classified document that made clear that the charity and its lawyers had been subjected to surveillance without warrants.
In several previous cases, plaintiffs have been unable to establish “standing” – the right to sue – because they were unable to prove they were wiretapped unlawfully. In the Haramain case, the plaintiffs were not allowed to use the document to prove that they had standing, but Eisenberg and other lawyers were able to use public information to prove they had been wiretapped. Those public records including a 2007 speech by an official of the Federal Bureau of Investigation (FBI) who acknowledged that Al Haramain had been placed under surveillance.
Jon Eisenberg, a lawyer for Al Haramain, told IPS, “President Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
He added, “I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. And if Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
Eisenberg said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not
optional,” he said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
The origins of the Al-Haramain case trace to a finding by the Bush Administration’s Treasury Department that the group was funneling money to terrorists in Chechnya. The government shut it down, but inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant. Judge Walker agreed.
The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
Among other provisions, the proposed law would allow federal judges to examine information whose release the government claims would comprise national security to determine the validity of that claim. This is what has just been done by Judge Walker, but almost all observers believe the case would be strongest if approved by Congressional statute.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told IPS, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
The efforts of the Obama Administration to maintain the secrecy of the counter-terrorism policies of its predecessor, the administration of former President George W. Bush, hit a major speed bump last week.
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
The judge found that the plaintiffs had been “subjected to unlawful surveillance,” and ruled that the government was liable to pay them damages.
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the claim of the Department of Justice (DOJ) that the charity’s lawsuit should be dismissed because allowing it to go forward could reveal state secrets and compromise national security. That claim was first asserted by the Bush administration and continued under President Obama.
The judge said that such expansive use of the so-called state-secrets
privilege amounted to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
Even though Congress had enacted the warrant law “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority, “ the judge said that position would enable government officials to violate that law.
The Haramain case has been especially closely watched because the government inadvertently disclosed a classified document that made clear that the charity and its lawyers had been subjected to surveillance without warrants.
In several previous cases, plaintiffs have been unable to establish “standing” – the right to sue – because they were unable to prove they were wiretapped unlawfully. In the Haramain case, the plaintiffs were not allowed to use the document to prove that they had standing, but Eisenberg and other lawyers were able to use public information to prove they had been wiretapped. Those public records including a 2007 speech by an official of the Federal Bureau of Investigation (FBI) who acknowledged that Al Haramain had been placed under surveillance.
Jon Eisenberg, a lawyer for Al Haramain, told IPS, “President Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
He added, “I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. And if Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
Eisenberg said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not
optional,” he said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
The origins of the Al-Haramain case trace to a finding by the Bush Administration’s Treasury Department that the group was funneling money to terrorists in Chechnya. The government shut it down, but inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant. Judge Walker agreed.
The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
Among other provisions, the proposed law would allow federal judges to examine information whose release the government claims would comprise national security to determine the validity of that claim. This is what has just been done by Judge Walker, but almost all observers believe the case would be strongest if approved by Congressional statute.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told IPS, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
Thursday, April 01, 2010
DEPORTATION BY QUOTA?
By William Fisher
Immigrants’ rights advocates are up in arms today over an apparent gaffe by a senior government official suggesting that immigration authorities would use a “quota system” to determine the number of people it would deport – followed by a “clarification” from higher-ups that appeared to confirm the quota approach.
The reference to the quota approach was contained in a memorandum written by James M. Chaparro, the director of ICE’s Detention and Removal Operations (DRO), part of the Department of Homeland Security (DHS). It directed DRO officers nationwide to boost deportation numbers, make maximum use of detention and detain more people.
The ACLU and a number of immigration groups met earlier this week with ICE Assistant Secretary John Morton and his senior staff to discuss the reported quota policy and DRO priorities. At the meeting, Morton denied the use of quotas, stated his commitment to work together in a “spirit of candor and transparency” and asked to be “judged on the record, not on rumors.”
But when asked how ICE arrived at its goal deporting at least 400,000 people this fiscal year, Morton said ICE had deported 387,000 individuals last fiscal year and needed to increase this number because Congress had given the agency increased resources.
And, in recent testimony before Congress, Morton said ICE intends to reduce the average length of stay of detainees in custody to allow ICE to remove a higher number of aliens. “Recently, we have taken steps to reduce the average length of stay from 33.5 days as of January 2010 to 28 days by FY 2011. This efficiency is increasingly important as the Secure Communities program leads to the identification of more criminal aliens,” he said.
The American Civil Liberties Union (ACLU), said in a statement, “These enforcement priorities are in direct contradiction with those set forth by Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Assistant Secretary John Morton who have both repeatedly testified, for much of the past year, that ICE’s priority is the deportation of dangerous criminal offenders.”
The group called on leaders in Congress and in ICE to establish transparent immigration enforcement and detention policies that respect the rule of law and constitutional values.
Mary Giovagnoli, director of the Immigration Policy Center, an arm of the American Immigration Council, told IPS, “The idea of deportation by quota is disappointing. It is sad to see ICE falling into the trap of measuring success by the numbers of people detained and removed.”
That sentiment was echoed by Judy Rabinovitz, Deputy Director of the ACLU Immigrants’ Rights Project. She said, “ICE should not be arresting people just to fill detention beds.”
Giovagnoli added, “DHS is operating on borrowed time. It is amassing a history of failed enforcement initiatives.”
“This is unsound government policy and an imprudent use of American taxpayers’ money that can very easily lead to civil liberties abuses,” said Joanne Lin, ACLU Legislative Counsel, who attended the DHS meeting.
“Immigration enforcement practices should be tied to the needs and demands of America, not driven by arbitrary numerical goals set by ICE. The preoccupation with reaching the number 400,000 has placed intense pressure on all corners of ICE to step up immigration enforcement operations. The ACLU is very concerned that ICE agents, in the name of meeting specific numerical goals, will feel pressured to cut corners and improperly target people who look ‘foreign’ for stops and interrogations.”
Another immigrants’ advocate, Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, said, “ICE has a serious credibility problem as they continue to say one thing while doing another. ICE Assistant Secretary John Morton can not effectively lead an agency when he doesn't know what his field representatives are doing or when his subordinates are delivering messages directly at odds with the purported goals of the organization and the President.”
The Chaparro memo, he said, “is only the latest in a series of agency mishaps that have undermined the administration's credibility on immigration enforcement policy.”
And in Washington, a coalition of immigrant rights groups has demanded the ouster of the nation's top immigration official, charging that underlings at Immigration and Customs Enforcement were thwarting Obama administration policy by setting a quota on deportations.
"The reality is that ICE has gone rogue and needs to be reined in with dramatic action," said Deepak Bhargava, executive director of the Washington-based Center for Community Change. "The agency charged with enforcing the nation's immigration laws is systematically deceiving the president and the American public."
Immigrants’ rights advocates are up in arms today over an apparent gaffe by a senior government official suggesting that immigration authorities would use a “quota system” to determine the number of people it would deport – followed by a “clarification” from higher-ups that appeared to confirm the quota approach.
The reference to the quota approach was contained in a memorandum written by James M. Chaparro, the director of ICE’s Detention and Removal Operations (DRO), part of the Department of Homeland Security (DHS). It directed DRO officers nationwide to boost deportation numbers, make maximum use of detention and detain more people.
The ACLU and a number of immigration groups met earlier this week with ICE Assistant Secretary John Morton and his senior staff to discuss the reported quota policy and DRO priorities. At the meeting, Morton denied the use of quotas, stated his commitment to work together in a “spirit of candor and transparency” and asked to be “judged on the record, not on rumors.”
But when asked how ICE arrived at its goal deporting at least 400,000 people this fiscal year, Morton said ICE had deported 387,000 individuals last fiscal year and needed to increase this number because Congress had given the agency increased resources.
And, in recent testimony before Congress, Morton said ICE intends to reduce the average length of stay of detainees in custody to allow ICE to remove a higher number of aliens. “Recently, we have taken steps to reduce the average length of stay from 33.5 days as of January 2010 to 28 days by FY 2011. This efficiency is increasingly important as the Secure Communities program leads to the identification of more criminal aliens,” he said.
The American Civil Liberties Union (ACLU), said in a statement, “These enforcement priorities are in direct contradiction with those set forth by Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Assistant Secretary John Morton who have both repeatedly testified, for much of the past year, that ICE’s priority is the deportation of dangerous criminal offenders.”
The group called on leaders in Congress and in ICE to establish transparent immigration enforcement and detention policies that respect the rule of law and constitutional values.
Mary Giovagnoli, director of the Immigration Policy Center, an arm of the American Immigration Council, told IPS, “The idea of deportation by quota is disappointing. It is sad to see ICE falling into the trap of measuring success by the numbers of people detained and removed.”
That sentiment was echoed by Judy Rabinovitz, Deputy Director of the ACLU Immigrants’ Rights Project. She said, “ICE should not be arresting people just to fill detention beds.”
Giovagnoli added, “DHS is operating on borrowed time. It is amassing a history of failed enforcement initiatives.”
“This is unsound government policy and an imprudent use of American taxpayers’ money that can very easily lead to civil liberties abuses,” said Joanne Lin, ACLU Legislative Counsel, who attended the DHS meeting.
“Immigration enforcement practices should be tied to the needs and demands of America, not driven by arbitrary numerical goals set by ICE. The preoccupation with reaching the number 400,000 has placed intense pressure on all corners of ICE to step up immigration enforcement operations. The ACLU is very concerned that ICE agents, in the name of meeting specific numerical goals, will feel pressured to cut corners and improperly target people who look ‘foreign’ for stops and interrogations.”
Another immigrants’ advocate, Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, said, “ICE has a serious credibility problem as they continue to say one thing while doing another. ICE Assistant Secretary John Morton can not effectively lead an agency when he doesn't know what his field representatives are doing or when his subordinates are delivering messages directly at odds with the purported goals of the organization and the President.”
The Chaparro memo, he said, “is only the latest in a series of agency mishaps that have undermined the administration's credibility on immigration enforcement policy.”
And in Washington, a coalition of immigrant rights groups has demanded the ouster of the nation's top immigration official, charging that underlings at Immigration and Customs Enforcement were thwarting Obama administration policy by setting a quota on deportations.
"The reality is that ICE has gone rogue and needs to be reined in with dramatic action," said Deepak Bhargava, executive director of the Washington-based Center for Community Change. "The agency charged with enforcing the nation's immigration laws is systematically deceiving the president and the American public."
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