By William Fisher
As the Obama Administration continues to roll out justifications for its policy of targeting U.S. citizens and others thought to be attacking American troops, legal and national security experts are pondering a central question: What if there’s a mistake and the wrong person gets killed?
There are no do-overs. It is a death sentence.
That, in fact, has already happened. A Reuters cameraman was killed by a U.S. drone strike when the operator mistook his camera’s long-range lens for a rocket-propelled grenade.
Nevertheless, a top Obama counterterrorism official is defending the government's right to target U.S. citizens perceived as terror threats for capture or killing, citing the example of the renegade al-Qaida-linked cleric Anwar al-Awlaki.
al-Awlaki, 39, was born in Las Cruces, New Mexico, and is an Islamic lecturer who is a dual citizen of the U.S. and Yemen. He is a spiritual leader and former imam who has purportedly inspired Islamic terrorists. His sermons are said to have been attended by three of the 9/11 hijackers.
Michael Leiter, director of the National Counterterrorism Center, does not say whether al-Awlaki is on a U.S. targeting list, but a senior U.S. counterterrorism official has previously confirmed that the cleric is among terror targets sought to be captured or killed.
What does the law say about targeting and killing people?
Much of the discussion thus far has been about the Constitutionality of such killings. But, counter-intuitively, the Constitution is not the primary engine. It is largely the laws of war that are in play here.
Except for those who do not believe the U.S. is at war. Among these is Marjorie Cohn, immediate past president of the National Lawyers Guild, who asserts to IPS:
“Targeted or political assassinations—sometimes called extrajudicial executions—are carried out by order of, or with the acquiescence of, a government, outside any judicial framework. As a 1998 report from the United Nations Special Rapporteur noted, “extrajudicial executions can never be justified under any circumstances, not even in time of war. Willful killing is a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act.”
And “This is not a war,” she adds.
On the issue of killing citizens vs. non-citizens, Daphne Eviatar of Human Rights First (HRF) explains to IPS, “Whether the target is a citizen isn't so important, because he's targetable if he's an enemy belligerent or civilian who's directly participating in hostilities against the United States.”
She adds, “The problem with the government's drone program is that it hasn't provided the public with enough information to determine whether the government is complying with those legal requirements. The fact that someone is suspected of having ties to al Qaeda or even supporting al Qaeda does not make them a member of a foreign force fighting the United States, or someone directly participating in hostilities against the United States.”
“Until the U.S. starts providing information about not only who they're targeting but what evidence exists that this person is a legitimate target, then we can't know if what they're doing is legal,” she says.
Prof. Peter Shane of Ohio State University law school agrees. He tells IPS, “So long as the executive branch engages in reasonable processes to distinguish persons who are combatants from those who are not, I do not think that the use of force against them is mistaking his camera with its long-range lens for a rocket-propelled grenade launch unconstitutional.”
“Whether any specific targeted killing is or is not a good idea, of course, is a completely different question,” he says.
Scott Horton, a constitutional lawyer and contributing editor at Harper's Magazine, tells IPS, “There are two ways the government can justify the extrajudicial killing of an American citizen: one is when the person is in the act of a crime that threatens the lives of others, or serious injury to them, and no other means exists to stop him; the other is in the context of a war.”
“The Obama Administration appears to think that the second case is applicable with respect to Al-Awlaki, but if they have evidence to prove it, they certainly haven't advanced it to the public,” he says.
But even if they have such evidence, he adds, “they haven't explained why they don't simply have him arrested and brought back to stand charges based on the crimes they believe he has committed, which appear to include terrorist activities and perhaps treason. They obviously need to explain why that approach won't work before they go dropping bombs in circumstances that might kill large numbers of innocent civilians in addition to killing Al-Awlaki,“ Horton tells IPS.
Col. Morris Davis, the Defense Department's former chief prosecutor for terrorism cases who argued on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials, tells IPS:
“The 5th Amendment says U.S. citizens can’t be ‘deprived of life, liberty, or property without due process of law.’ If the Constitution prohibits the government from taking your house without giving you a hearing and the opportunity to defend yourself it seems rather ironic that they might take your life with even less formality and less process.”
Prof. Francis Boyle of the University of Illinois shares serious reservations about how the government is conducting its targeting program.
He tells IPS, “What is being proposed here with respect to al-Awlaki and other United States citizens on the CIA's now publicly admitted ‘hit list’ is murder, assassination, extrajudicial execution, a grave violation of their right to life and human rights law, and of the Fifth Amendment to the United States Constitution."
Glenn Greenwald, constitutional lawyer and contributor to Salon.com, is similarly troubled by the targeting policy. He asks: “Could the individuals who trust the U.S. Government to essentially convict people of Terrorism and impose a death penalty through imperial decree (i.e., without any trials or judicial review, and based solely on the unchecked say-so of the Executive Branch) please identify themselves, and particularly explain the basis for that trust in light of this disgraceful and error-plagued record?”
Greenwald concludes: “We really are talking about a President who believes he has the right to send the CIA to murder American citizens based purely on allegations and suspicions of wrongdoing.”
Bruce Fein, a conservative legal expert who served in the Department of Justice during the Reagan Administration, proffers another idea.
He tells IPS, “Congress should enact a companion law to FISA (the Foreign Intelligence Surveillance Act.) The President should be required to obtain a judicial warrant based on probable cause to believe the suspected American is currently actively involved in seeking to kill United States citizens. The warrant should authorize capture of the American suspect for trial in the U.S., or, a targeted killing if capture is infeasible or would raise a grave risk of death or serious bodily injury to the U.S. authorities pursuing the capture.”
Saturday, July 03, 2010
Friday, July 02, 2010
OBAMA PUSHES IMMIGRATION REFORM
News Analysis By William Fisher
As the Justice Department remains on a collision course with the State of Arizona‘s tough new anti-immigrant law, and myriad additional legal problems develop for Arizona’s Republican governor, President Barack Obama has launched a new robust rhetorical initiative to pass comprehensive immigration reform.
The president was unclear, however, as to the timing of Congressional action. It was generally believed that Obama would talk about immigration reform between now and the election of the next Congress in 2010. It was thought unlikely he would do anything significant on this contentious issue that could present Congressional Democrats with difficult votes.
Nonetheless, President Obama told a Washington audience Thursday that he remains committed to comprehensive immigration legislation that will include a strong focus on border security but also will preserve America's legacy as "a nation of immigrants . . . who believed that there was a place that they could be, at long last, free to work and worship and live their lives in peace."
The President appears to be saying that while the politics of the thorny issue may demand that legislation waits a bit, it is too important to be kicked down the road. He pledged to push for immigration reform relentlessly from now on.
Observers believe he wants to make good on a major campaign promise and that he decidedly has his eye on the ways history will remember him.
In a speech at American University today, Obama emphasized the need for federal immigration reform that respects the civil rights of those in this country.
Among the organizations pressing for quick action on the issue is the American Civil Liberties Union (ACLU), which strongly supports reforms to U.S. immigration policy and calls on political leaders to ensure that any legislation protects the civil rights, civil liberties and human rights of everyone in the United States, regardless of his or her immigration status.
Anthony D. Romero, Executive Director of the ACLU, said, “We commend President Obama for recognizing the need to reform our immigration system on the federal level rather than allow a patchwork of state and local laws that lead to the violation of civil rights and alienation of communities from law enforcement.”
He added,” The recently enacted Arizona law, which the ACLU and others are challenging in court, is a prime example of misguided laws that inevitably lead to egregious racial profiling and discrimination. We urge the Obama administration to bring a federal challenge to the Arizona law through litigation as soon as possible and to take all actions in its power to prevent the law's implementation.
"President Obama is also correct that heavy border security is not a singular answer to addressing immigration issues. Expanded border enforcement could cause more civil liberties abuses in U.S. communities on the southwest border. Any border enforcement must be conducted in a constitutional manner with strict accountability and oversight to avoid abuse.
"Expanding E-Verify, an electronic employment verification program promoted by the president today, is not an answer but would lead to discrimination, burden American workers and deny employment to authorized workers.
"We encourage President Obama to work with Congress to implement immigration policies that respect the Constitution and the civil liberties of all within our borders."
As Obama calls for bipartisan reform, Human Rights First stresses importance of safeguards in detention and protecting refugees' access to fair asylum proceedings
Responding to President Ocala’s speech at American University, Human Rights First today emphasized that any immigration reform package must reflect U.S. values and commitment to refugee protection.
"As the President works with lawmakers to address the many complex issues that will arise during a debate over comprehensive immigration reform, he must ensure that America upholds its longstanding commitment to refugee protection – which he emphasized strongly just two weeks ago on the occasion of World Refugee Day," said Human Rights First's Annie Sock.
"The Obama Administration and Congress should ensure safeguards to prevent arbitrary detention and protect refugees' access to fair asylum procedures."
Several bills pending in Congress already include key improvements to the asylum and refugee systems that should be incorporated into any immigration reform legislation. Human Rights First continues to urge President Obama and Congress to put into law measures including the following:
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 are adjudicated fairly and consistently; and Protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that U.S. 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.
In a related development reported by the Miami Herald newspaper, Federal immigration officials now have the ability to identify potentially deportable foreign nationals booked into Florida county jails on suspicion of crimes.
Michael W. Meade, U.S. Immigration and Customs Enforcement field office
director in Miami, announced Tuesday that booking centers in all 67 Florida
counties are now linked to ICE's biometric databases for quicker identification of immigration records.
Meade's disclosure marks an expansion in Florida of ICE's Secure Communities initiative, a controversial program the agency of the U.S. Department of Homeland Security deems vital to its efforts to quickly identify foreign nationals who have been convicted or charged.
"This capability means local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody," Meade told a news conference at ICE's office in Doral.
"If this program were really targeting hardened criminals and making us safer, as ICE claims, I imagine most everyone would support it," said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, long a critic of Secure Communities.
"People arrested for any reason, including traffic violations and loitering, are
caught in ICE's net — including U.S. citizens."
Under President Barack Obama, ICE has reconfigured its stated immigration
enforcement priority, ostensibly targeting foreign nationals convicted of crimes committed in the United States.
Previously, immigration authorities detained and deported criminal and
noncriminal immigrants without distinction.
Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, praised the Obama speech but said, “Republicans must offer more than tough talk and tired "border first" talking points.”
He added, “Border security is a necessary but insufficient part of getting immigration reform right. It does nothing to stop the jobs magnet or bring the 11 million unauthorized immigrants into the system legally. And it does nothing to reform our legal immigration system so that it can respond flexibly to future labor market needs. We don't need window dressing, more tough talk, or more empty gestures. We need leadership on comprehensive reform.”
The American Bar Association has also filed a “friend of the court” brief seeking an injunction against Arizona’s law authorizing police to stop and detain individuals unless they can produce proof of citizenship or legal immigration status.
As the Justice Department remains on a collision course with the State of Arizona‘s tough new anti-immigrant law, and myriad additional legal problems develop for Arizona’s Republican governor, President Barack Obama has launched a new robust rhetorical initiative to pass comprehensive immigration reform.
The president was unclear, however, as to the timing of Congressional action. It was generally believed that Obama would talk about immigration reform between now and the election of the next Congress in 2010. It was thought unlikely he would do anything significant on this contentious issue that could present Congressional Democrats with difficult votes.
Nonetheless, President Obama told a Washington audience Thursday that he remains committed to comprehensive immigration legislation that will include a strong focus on border security but also will preserve America's legacy as "a nation of immigrants . . . who believed that there was a place that they could be, at long last, free to work and worship and live their lives in peace."
The President appears to be saying that while the politics of the thorny issue may demand that legislation waits a bit, it is too important to be kicked down the road. He pledged to push for immigration reform relentlessly from now on.
Observers believe he wants to make good on a major campaign promise and that he decidedly has his eye on the ways history will remember him.
In a speech at American University today, Obama emphasized the need for federal immigration reform that respects the civil rights of those in this country.
Among the organizations pressing for quick action on the issue is the American Civil Liberties Union (ACLU), which strongly supports reforms to U.S. immigration policy and calls on political leaders to ensure that any legislation protects the civil rights, civil liberties and human rights of everyone in the United States, regardless of his or her immigration status.
Anthony D. Romero, Executive Director of the ACLU, said, “We commend President Obama for recognizing the need to reform our immigration system on the federal level rather than allow a patchwork of state and local laws that lead to the violation of civil rights and alienation of communities from law enforcement.”
He added,” The recently enacted Arizona law, which the ACLU and others are challenging in court, is a prime example of misguided laws that inevitably lead to egregious racial profiling and discrimination. We urge the Obama administration to bring a federal challenge to the Arizona law through litigation as soon as possible and to take all actions in its power to prevent the law's implementation.
"President Obama is also correct that heavy border security is not a singular answer to addressing immigration issues. Expanded border enforcement could cause more civil liberties abuses in U.S. communities on the southwest border. Any border enforcement must be conducted in a constitutional manner with strict accountability and oversight to avoid abuse.
"Expanding E-Verify, an electronic employment verification program promoted by the president today, is not an answer but would lead to discrimination, burden American workers and deny employment to authorized workers.
"We encourage President Obama to work with Congress to implement immigration policies that respect the Constitution and the civil liberties of all within our borders."
As Obama calls for bipartisan reform, Human Rights First stresses importance of safeguards in detention and protecting refugees' access to fair asylum proceedings
Responding to President Ocala’s speech at American University, Human Rights First today emphasized that any immigration reform package must reflect U.S. values and commitment to refugee protection.
"As the President works with lawmakers to address the many complex issues that will arise during a debate over comprehensive immigration reform, he must ensure that America upholds its longstanding commitment to refugee protection – which he emphasized strongly just two weeks ago on the occasion of World Refugee Day," said Human Rights First's Annie Sock.
"The Obama Administration and Congress should ensure safeguards to prevent arbitrary detention and protect refugees' access to fair asylum procedures."
Several bills pending in Congress already include key improvements to the asylum and refugee systems that should be incorporated into any immigration reform legislation. Human Rights First continues to urge President Obama and Congress to put into law measures including the following:
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 are adjudicated fairly and consistently; and Protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that U.S. 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.
In a related development reported by the Miami Herald newspaper, Federal immigration officials now have the ability to identify potentially deportable foreign nationals booked into Florida county jails on suspicion of crimes.
Michael W. Meade, U.S. Immigration and Customs Enforcement field office
director in Miami, announced Tuesday that booking centers in all 67 Florida
counties are now linked to ICE's biometric databases for quicker identification of immigration records.
Meade's disclosure marks an expansion in Florida of ICE's Secure Communities initiative, a controversial program the agency of the U.S. Department of Homeland Security deems vital to its efforts to quickly identify foreign nationals who have been convicted or charged.
"This capability means local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody," Meade told a news conference at ICE's office in Doral.
"If this program were really targeting hardened criminals and making us safer, as ICE claims, I imagine most everyone would support it," said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, long a critic of Secure Communities.
"People arrested for any reason, including traffic violations and loitering, are
caught in ICE's net — including U.S. citizens."
Under President Barack Obama, ICE has reconfigured its stated immigration
enforcement priority, ostensibly targeting foreign nationals convicted of crimes committed in the United States.
Previously, immigration authorities detained and deported criminal and
noncriminal immigrants without distinction.
Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, praised the Obama speech but said, “Republicans must offer more than tough talk and tired "border first" talking points.”
He added, “Border security is a necessary but insufficient part of getting immigration reform right. It does nothing to stop the jobs magnet or bring the 11 million unauthorized immigrants into the system legally. And it does nothing to reform our legal immigration system so that it can respond flexibly to future labor market needs. We don't need window dressing, more tough talk, or more empty gestures. We need leadership on comprehensive reform.”
The American Bar Association has also filed a “friend of the court” brief seeking an injunction against Arizona’s law authorizing police to stop and detain individuals unless they can produce proof of citizenship or legal immigration status.
Thursday, July 01, 2010
OBAMA PUSHES IMMIGRATION REFORM
News Analysis By William Fisher
As the Justice Department remains on a collision course with the State of Arizona‘s tough new anti-immigrant law, and myriad additional legal problems develop for Arizona’s Republican governor, President Barack Obama has launched a new robust rhetorical initiative to pass comprehensive immigration reform.
The president was unclear, however, as to the timing of Congressional action. It was generally believed that Obama would talk about immigration reform between now and the election of the next Congress in 2010. It was thought unlikely he would do anything significant on this contentious issue that could present Congressional Democrats with difficult votes.
Nonetheless, President Obama told a Washington audience Thursday that he remains committed to comprehensive immigration legislation that will include a strong focus on border security but also will preserve America's legacy as "a nation of immigrants . . . who believed that there was a place that they could be, at long last, free to work and worship and live their lives in peace."
The President appears to be saying that while the politics of the thorny issue may demand that legislation waits a bit, it is too important to be kicked down the road. He pledged to push for immigration reform relentlessly from now on.
Observers believe he wants to make good on a major campaign promise and that he decidedly has his eye on the ways history will remember him.
In a speech at American University today, Obama emphasized the need for federal immigration reform that respects the civil rights of those in this country.
Among the organizations pressing for quick action on the issue is the American Civil Liberties Union (ACLU), which strongly supports reforms to U.S. immigration policy and calls on political leaders to ensure that any legislation protects the civil rights, civil liberties and human rights of everyone in the United States, regardless of his or her immigration status.
Anthony D. Romero, Executive Director of the ACLU, said, “We commend President Obama for recognizing the need to reform our immigration system on the federal level rather than allow a patchwork of state and local laws that lead to the violation of civil rights and alienation of communities from law enforcement.”
He added,” The recently enacted Arizona law, which the ACLU and others are challenging in court, is a prime example of misguided laws that inevitably lead to egregious racial profiling and discrimination. We urge the Obama administration to bring a federal challenge to the Arizona law through litigation as soon as possible and to take all actions in its power to prevent the law's implementation.
"President Obama is also correct that heavy border security is not a singular answer to addressing immigration issues. Expanded border enforcement could cause more civil liberties abuses in U.S. communities on the southwest border. Any border enforcement must be conducted in a constitutional manner with strict accountability and oversight to avoid abuse.
"Expanding E-Verify, an electronic employment verification program promoted by the president today, is not an answer but would lead to discrimination, burden American workers and deny employment to authorized workers.
"We encourage President Obama to work with Congress to implement immigration policies that respect the Constitution and the civil liberties of all within our borders."
As Obama calls for bipartisan reform, Human Rights First stresses importance of safeguards in detention and protecting refugees' access to fair asylum proceedings
Responding to President Ocala’s speech at American University, Human Rights First today emphasized that any immigration reform package must reflect U.S. values and commitment to refugee protection.
"As the President works with lawmakers to address the many complex issues that will arise during a debate over comprehensive immigration reform, he must ensure that America upholds its longstanding commitment to refugee protection – which he emphasized strongly just two weeks ago on the occasion of World Refugee Day," said Human Rights First's Annie Sock.
"The Obama Administration and Congress should ensure safeguards to prevent arbitrary detention and protect refugees' access to fair asylum procedures."
Several bills pending in Congress already include key improvements to the asylum and refugee systems that should be incorporated into any immigration reform legislation. Human Rights First continues to urge President Obama and Congress to put into law measures including the following:
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 are adjudicated fairly and consistently; and Protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that U.S. 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.
In a related development reported by the Miami Herald newspaper, Federal immigration officials now have the ability to identify potentially deportable foreign nationals booked into Florida county jails on suspicion of crimes.
Michael W. Meade, U.S. Immigration and Customs Enforcement field office director in Miami, announced Tuesday that booking centers in all 67 Florida counties are now linked to ICE's biometric databases for quicker identification of immigration records.
Meade's disclosure marks an expansion in Florida of ICE's Secure Communities initiative, a controversial program the agency of the U.S. Department of Homeland Security deems vital to its efforts to quickly identify foreign nationals who have been convicted or charged.
"This capability means local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody," Meade told a news conference at ICE's office in Doral.
"If this program were really targeting hardened criminals and making us safer, as ICE claims, I imagine most everyone would support it," said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, long a critic of Secure Communities.
"People arrested for any reason, including traffic violations and loitering, are caught in ICE's net — including U.S. citizens."
Under President Barack Obama, ICE has reconfigured its stated immigration enforcement priority, ostensibly targeting foreign nationals convicted of crimes committed in the United States.
Previously, immigration authorities detained and deported criminal and noncriminal immigrants without distinction.
Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, praised the Obama speech but said, “Republicans must offer more than tough talk and tired "border first" talking points.”
He added, “Border security is a necessary but insufficient part of getting immigration reform right. It does nothing to stop the jobs magnet or bring the 11 million unauthorized immigrants into the system legally. And it does nothing to reform our legal immigration system so that it can respond flexibly to future labor market needs. We don't need window dressing, more tough talk, or more empty gestures. We need leadership on comprehensive reform.”
The American Bar Association has also filed a “friend of the court” brief seeking an injunction against Arizona’s law authorizing police to stop and detain individuals unless they can produce proof of citizenship or legal immigration status.
As the Justice Department remains on a collision course with the State of Arizona‘s tough new anti-immigrant law, and myriad additional legal problems develop for Arizona’s Republican governor, President Barack Obama has launched a new robust rhetorical initiative to pass comprehensive immigration reform.
The president was unclear, however, as to the timing of Congressional action. It was generally believed that Obama would talk about immigration reform between now and the election of the next Congress in 2010. It was thought unlikely he would do anything significant on this contentious issue that could present Congressional Democrats with difficult votes.
Nonetheless, President Obama told a Washington audience Thursday that he remains committed to comprehensive immigration legislation that will include a strong focus on border security but also will preserve America's legacy as "a nation of immigrants . . . who believed that there was a place that they could be, at long last, free to work and worship and live their lives in peace."
The President appears to be saying that while the politics of the thorny issue may demand that legislation waits a bit, it is too important to be kicked down the road. He pledged to push for immigration reform relentlessly from now on.
Observers believe he wants to make good on a major campaign promise and that he decidedly has his eye on the ways history will remember him.
In a speech at American University today, Obama emphasized the need for federal immigration reform that respects the civil rights of those in this country.
Among the organizations pressing for quick action on the issue is the American Civil Liberties Union (ACLU), which strongly supports reforms to U.S. immigration policy and calls on political leaders to ensure that any legislation protects the civil rights, civil liberties and human rights of everyone in the United States, regardless of his or her immigration status.
Anthony D. Romero, Executive Director of the ACLU, said, “We commend President Obama for recognizing the need to reform our immigration system on the federal level rather than allow a patchwork of state and local laws that lead to the violation of civil rights and alienation of communities from law enforcement.”
He added,” The recently enacted Arizona law, which the ACLU and others are challenging in court, is a prime example of misguided laws that inevitably lead to egregious racial profiling and discrimination. We urge the Obama administration to bring a federal challenge to the Arizona law through litigation as soon as possible and to take all actions in its power to prevent the law's implementation.
"President Obama is also correct that heavy border security is not a singular answer to addressing immigration issues. Expanded border enforcement could cause more civil liberties abuses in U.S. communities on the southwest border. Any border enforcement must be conducted in a constitutional manner with strict accountability and oversight to avoid abuse.
"Expanding E-Verify, an electronic employment verification program promoted by the president today, is not an answer but would lead to discrimination, burden American workers and deny employment to authorized workers.
"We encourage President Obama to work with Congress to implement immigration policies that respect the Constitution and the civil liberties of all within our borders."
As Obama calls for bipartisan reform, Human Rights First stresses importance of safeguards in detention and protecting refugees' access to fair asylum proceedings
Responding to President Ocala’s speech at American University, Human Rights First today emphasized that any immigration reform package must reflect U.S. values and commitment to refugee protection.
"As the President works with lawmakers to address the many complex issues that will arise during a debate over comprehensive immigration reform, he must ensure that America upholds its longstanding commitment to refugee protection – which he emphasized strongly just two weeks ago on the occasion of World Refugee Day," said Human Rights First's Annie Sock.
"The Obama Administration and Congress should ensure safeguards to prevent arbitrary detention and protect refugees' access to fair asylum procedures."
Several bills pending in Congress already include key improvements to the asylum and refugee systems that should be incorporated into any immigration reform legislation. Human Rights First continues to urge President Obama and Congress to put into law measures including the following:
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 are adjudicated fairly and consistently; and Protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that U.S. 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.
In a related development reported by the Miami Herald newspaper, Federal immigration officials now have the ability to identify potentially deportable foreign nationals booked into Florida county jails on suspicion of crimes.
Michael W. Meade, U.S. Immigration and Customs Enforcement field office director in Miami, announced Tuesday that booking centers in all 67 Florida counties are now linked to ICE's biometric databases for quicker identification of immigration records.
Meade's disclosure marks an expansion in Florida of ICE's Secure Communities initiative, a controversial program the agency of the U.S. Department of Homeland Security deems vital to its efforts to quickly identify foreign nationals who have been convicted or charged.
"This capability means local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody," Meade told a news conference at ICE's office in Doral.
"If this program were really targeting hardened criminals and making us safer, as ICE claims, I imagine most everyone would support it," said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, long a critic of Secure Communities.
"People arrested for any reason, including traffic violations and loitering, are caught in ICE's net — including U.S. citizens."
Under President Barack Obama, ICE has reconfigured its stated immigration enforcement priority, ostensibly targeting foreign nationals convicted of crimes committed in the United States.
Previously, immigration authorities detained and deported criminal and noncriminal immigrants without distinction.
Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, praised the Obama speech but said, “Republicans must offer more than tough talk and tired "border first" talking points.”
He added, “Border security is a necessary but insufficient part of getting immigration reform right. It does nothing to stop the jobs magnet or bring the 11 million unauthorized immigrants into the system legally. And it does nothing to reform our legal immigration system so that it can respond flexibly to future labor market needs. We don't need window dressing, more tough talk, or more empty gestures. We need leadership on comprehensive reform.”
The American Bar Association has also filed a “friend of the court” brief seeking an injunction against Arizona’s law authorizing police to stop and detain individuals unless they can produce proof of citizenship or legal immigration status.
NO-FLY LAWSUIT
By William Fisher
Ten American citizens or lawful U.S. residents are suing the government for placing them on the “no-fly” list without notice or due process and then giving them no way to get their names off the list.
The first-of-its-kind lawsuit was filed seeking relief for the plaintiffs who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government's "No Fly List," says the American Civil Liberties Union, which has brought the suit.
None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names.
"More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government," said Ben Wizner, staff attorney with the ACLU National Security Project. "A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional."
The lawsuit names the U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Terrorist Screening Center (TSC) in U.S. District Court for the District of Oregon.
The plaintiffs include a U.S. citizen and disabled Marine veteran living in Egypt who has been barred from flying to the United States and, as a result, cannot take a required Veterans' Administration disability evaluation; Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran who is stuck in Santa Marta, Colombia, after being denied boarding on a flight to the United States; Steven Washburn, a U.S. citizen and U.S. Air Force veteran who was prevented from flying from Europe to the United States or Mexico; he eventually flew to Brazil, from there to Peru, and from there to Mexico, where he was detained and finally escorted across the border by U.S. and Mexican officials; Adama Bah, a citizen of Guinea who was granted political asylum in the United States, where she has lived since she was two, who was barred from flying from New York to Chicago for work; and Halime Sat, a German citizen and lawful permanent resident of the United States who lives in California with her U.S.-citizen husband who was barred from flying from Long Beach, California to Oakland to attend a conference and has since had to cancel plane travel to participate in educational programs and her family reunion in Germany.
According to the ACLU's legal complaint, thousands of people have been added to the "No Fly List" and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest.
"Without a reasonable way for people to challenge their inclusion on the list, there's no way to keep innocent people off it," said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. "The government's decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people's lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad."
The ACLU claims that hundreds of thousands of people are being wrongly identified because of the government’s wasteful and inefficient management of the nation’s one million-strong terrorist watchlist.
The Department of Justice Office of Inspector General (OIG), found that the part of the watchlist maintained by the Federal Bureau of Investigation (FBI) may contain a 35 percent error rate. OIG auditors reviewed 68,669 of those records and found 24,000 out of date. In a closer inspection of the out of date records, the auditors found a majority of this sample did not belong on a watchlist.
The OIG audit also revealed that large portions of the list are governed by no formal processes for updating or removing records.
The ACLU says the audit “confirms that the nation’s watchlist system is massively broken.”
The list has been substantially expanded following the unsuccessful effort by a Nigerian with explosives in his underwear to blow up a passenger airliner approaching Detroit last Christmas day.
“I am a bit skeptical about claims the FBI addressed all of the concerns and problems raised in the FBI Inspector General’s audit report on the terrorist watchlist,” Chris Calabrese, an attorney with the ACLU Technology and Liberty Project, told IPS.
“Are they saying that the FBI has reviewed 24,000 watchlist records to determine how many (likely a majority) need to be removed from the watchlist? Has the FBI completely streamlined a process for reviewing records so that people are removed from the watchlist within 10 days? The audit reports the average amount of time to remove an identity from the list is 60 days. And this is just the tip of the iceberg.”
The OIG report documents a widespread failure to scrub the lists by removing names after cases have been closed. For example, one subject stayed on the watchlist for almost five years after the case was resolved; two people on the list were dead. The FBI attempted to place one individual on the watchlist by reclassifying that person as an international terrorist after already having been cleared of wrongdoing by an FBI investigation.
It identified more than 50,000 records with no explanation of why they were on the list, making it impossible to remove them. It described the controls for placing many names on the list as “weak or nonexistent.”
The watchlist has existed since 2003, when then President George W. Bush issued a presidential directive mandating the development of a consolidated terrorist watchlist and required all federal law enforcement and intelligence agencies with terrorism information to share such information. The consolidated terrorist watchlist is known as the Terrorist Screening Database (TSDB).
“This IG report reveals just what a comedy of errors the watchlist is,” said Chris Calabrese, attorney with the ACLU Technology and Liberty Program. “But we did not need this report to know there is a problem with the effectiveness of any terrorist watchlist that includes over a million names. It certainly explains why civil rights icon Congressman John Lewis has problems when he needs to fly.”
The late Senator Edward M. Kennedy experienced similar problems.
Ten American citizens or lawful U.S. residents are suing the government for placing them on the “no-fly” list without notice or due process and then giving them no way to get their names off the list.
The first-of-its-kind lawsuit was filed seeking relief for the plaintiffs who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government's "No Fly List," says the American Civil Liberties Union, which has brought the suit.
None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names.
"More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government," said Ben Wizner, staff attorney with the ACLU National Security Project. "A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional."
The lawsuit names the U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Terrorist Screening Center (TSC) in U.S. District Court for the District of Oregon.
The plaintiffs include a U.S. citizen and disabled Marine veteran living in Egypt who has been barred from flying to the United States and, as a result, cannot take a required Veterans' Administration disability evaluation; Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran who is stuck in Santa Marta, Colombia, after being denied boarding on a flight to the United States; Steven Washburn, a U.S. citizen and U.S. Air Force veteran who was prevented from flying from Europe to the United States or Mexico; he eventually flew to Brazil, from there to Peru, and from there to Mexico, where he was detained and finally escorted across the border by U.S. and Mexican officials; Adama Bah, a citizen of Guinea who was granted political asylum in the United States, where she has lived since she was two, who was barred from flying from New York to Chicago for work; and Halime Sat, a German citizen and lawful permanent resident of the United States who lives in California with her U.S.-citizen husband who was barred from flying from Long Beach, California to Oakland to attend a conference and has since had to cancel plane travel to participate in educational programs and her family reunion in Germany.
According to the ACLU's legal complaint, thousands of people have been added to the "No Fly List" and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest.
"Without a reasonable way for people to challenge their inclusion on the list, there's no way to keep innocent people off it," said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. "The government's decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people's lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad."
The ACLU claims that hundreds of thousands of people are being wrongly identified because of the government’s wasteful and inefficient management of the nation’s one million-strong terrorist watchlist.
The Department of Justice Office of Inspector General (OIG), found that the part of the watchlist maintained by the Federal Bureau of Investigation (FBI) may contain a 35 percent error rate. OIG auditors reviewed 68,669 of those records and found 24,000 out of date. In a closer inspection of the out of date records, the auditors found a majority of this sample did not belong on a watchlist.
The OIG audit also revealed that large portions of the list are governed by no formal processes for updating or removing records.
The ACLU says the audit “confirms that the nation’s watchlist system is massively broken.”
The list has been substantially expanded following the unsuccessful effort by a Nigerian with explosives in his underwear to blow up a passenger airliner approaching Detroit last Christmas day.
“I am a bit skeptical about claims the FBI addressed all of the concerns and problems raised in the FBI Inspector General’s audit report on the terrorist watchlist,” Chris Calabrese, an attorney with the ACLU Technology and Liberty Project, told IPS.
“Are they saying that the FBI has reviewed 24,000 watchlist records to determine how many (likely a majority) need to be removed from the watchlist? Has the FBI completely streamlined a process for reviewing records so that people are removed from the watchlist within 10 days? The audit reports the average amount of time to remove an identity from the list is 60 days. And this is just the tip of the iceberg.”
The OIG report documents a widespread failure to scrub the lists by removing names after cases have been closed. For example, one subject stayed on the watchlist for almost five years after the case was resolved; two people on the list were dead. The FBI attempted to place one individual on the watchlist by reclassifying that person as an international terrorist after already having been cleared of wrongdoing by an FBI investigation.
It identified more than 50,000 records with no explanation of why they were on the list, making it impossible to remove them. It described the controls for placing many names on the list as “weak or nonexistent.”
The watchlist has existed since 2003, when then President George W. Bush issued a presidential directive mandating the development of a consolidated terrorist watchlist and required all federal law enforcement and intelligence agencies with terrorism information to share such information. The consolidated terrorist watchlist is known as the Terrorist Screening Database (TSDB).
“This IG report reveals just what a comedy of errors the watchlist is,” said Chris Calabrese, attorney with the ACLU Technology and Liberty Program. “But we did not need this report to know there is a problem with the effectiveness of any terrorist watchlist that includes over a million names. It certainly explains why civil rights icon Congressman John Lewis has problems when he needs to fly.”
The late Senator Edward M. Kennedy experienced similar problems.
BRITAIN MOVES AHEAD ON TORTURE PROBE
By William Fisher
Breaking from President Barack Obama’s insistence on “moving forward, not backward” in investigating U.S. detainee torture, the British Government appears poised to investigate U.K. complicity with the American Central Intelligence Agency (CIA) in “rendering” British citizens and residents and treating them with “enhanced interrogation” techniques.
The British newspaper, The Guardian, is reporting that Prime Minister David Cameron and the new foreign secretary, William Hague, are understood to have agreed the terms of a judge-led inquiry into claims that British security services were complicit in torture of terrorism suspects.
The newspaper says the inquiry is expected to offer compensation in cases, where necessary, and is likely to be held in private. A judge-led inquiry or commission may have the advantage of bringing together the 13 separate compensation cases currently going through the courts.
It claims those cases are leading to complex demands for the disclosure of documents that the intelligence services may not welcome, and are finding difficult to control.
U.S. Constitutional lawyer and Harper’s magazine writer Scott Horton writes of the inquiry in his on-line column of Harper’s Magazine. He says the inquiry’s focus on compensation to torture victims shows that the British Government takes seriously its obligations under the Convention Against Torture to compensate victims of torture carried out by those acting under color of office.
“Compare this with the dismissive posture taken by the U.S. Justice Department, which has sought zealously to foreclose all paths of compensation and pointedly ignores America’s formal treaty obligations, which are to be implemented by the Executive,” he says.
The UK inquiry is independent of the question of criminal prosecutions. As The Guardian notes, a police investigation is still pending, and it is likely to lead to a recommendation to the Director of Public Prosecutions on specific criminal charges.
Some of the litigants have demanded an inquiry as part of their civil claims. Cameron is understood to have discussed the issue in recent days with President Obama, but no decision is expected very shortly.
While some in Whitehall have said no inquiry can be held while so many alleged victims of torture and rendition are suing the government, most legal experts believe it is possible, the Guardian said.
The government's reviewer of terrorism legislation, Lord Carlile, said he did
not believe the inquiry could be held until the Metropolitan police had decided whether to recommend to the director of public prosecutions (DPP) that charges against intelligence agents should go ahead. But he said this was not the universal view.
Hague first spoke of the need for a judge-led inquiry after the coalition agreement, but his remarks appeared to unsettle the intelligence services and required further discussion on Cameron's national security inquiry.
Complex issues such as perjury, the publication of evidence and whether those seeking compensation would be required to drop all other claims will need to be agreed.
Backbench MPs and human rights groups hailed the government's imminent decision on an inquiry into UK involvement in torture and rendition while warning ministers that it needed to be independent and have a broad remit.
Andrew Tyrie, the Tory MP whose all-party parliamentary group on extraordinary rendition has been campaigning on this issue for several years, said: "It is essential that the judge is independent, and seen to be independent, and makes as much as possible of his or her findings public. It is in the national interest that we get to the bottom of this, get to the truth and move on."
Tyrie said the inquiry needed to examine not only complicity in torture, but also involvement in the US rendition program, while others said the inquiry should also embrace abuses perpetrated by British armed forced in Iraq.
David Davis, the former shadow home secretary, also stressed that the inquiry needed to be led by a judge who had access to all relevant documentation. "It is vital that such an inquiry is led by a senior and impartial judge who is able to establish the facts beyond any doubt, to remove this stain on Britain's reputation, and to ensure that such allegations can never be made again," Davis said.
"To do this he must have unfettered access to all the people and papers related to this matter and should be able to publish anything he thinks is in the public interest, to ensure that we can draw a line under this issue once and for all."
Speaking for the Liberal Democrat coalition partners, European Parliament member (MEP) Sarah Ludford said, “Only a very thorough cleaning of the stables can re-establish Britain’s reputation as a nation of principles rather than a sidekick to appalling human rights abuses. It should also be judge-led, held as far as possible in public, and not rule out the possibility of prosecutions.”
Horton says her reference to being a “sidekick to appalling human rights abuses” is clear enough. It’s an unpleasant consequence of what used to be called the “special relationship.”
“For those in the White House who argue for a policy of ‘don’t look back’ that violates their oath to uphold the Constitution and the criminal laws of the United States, the British government is furnishing an example. This is how a modern democracy—and one under Conservative leadership at that—deals with the legacy of torture, Horton said.
The question of complicity between the UK security services and the U.S CIA has continued to raise contentious issues between the two countries. Earlier this year, a former Guantanamo prisoner and British resident, Binyam Mohamed, sued the U.K. government for complicity with the CIA in his rendition and torture and requested documents to substantiate his claims.
The U.S. Government declined to grant the High Court permission to make these documents public and allegedly threatened that their disclosure could undermine relationships between the two countries’ intelligence services.
The Court eventually ordered the documents made public.
The central figure in this British case is the same Binyam Mohamed who appealed a separate U.S. case, on behalf of himself and four other terror suspects, to the U.S. Circuit Court of Appeals in San Francisco. In that case, government lawyers from the Obama Administration sought a decision not to reinstate a case that was thrown out by a lower court last year because government lawyers argued successfully that allowing the case to go forward would jeopardize U.S. national security.
In opposing reinstatement of the case, Obama’s lawyers used the same “state secrets” privilege used by Bush lawyers in the original case.
Stafford Smith told IPS that his letter to President Obama speaks for itself. He says he doesn’t know who redacted the materials he submitted to the Defense Department.
President Obama’s strong preference for not mounting a full-scale investigation of CIA prisoner treatment emerged early in his administration, despite the release by the Justice Department of a series of “torture memos” written by Bush-era DOJ senior lawyers. The memos authorized and explained enhanced interrogation techniques, including waterboarding.
Breaking from President Barack Obama’s insistence on “moving forward, not backward” in investigating U.S. detainee torture, the British Government appears poised to investigate U.K. complicity with the American Central Intelligence Agency (CIA) in “rendering” British citizens and residents and treating them with “enhanced interrogation” techniques.
The British newspaper, The Guardian, is reporting that Prime Minister David Cameron and the new foreign secretary, William Hague, are understood to have agreed the terms of a judge-led inquiry into claims that British security services were complicit in torture of terrorism suspects.
The newspaper says the inquiry is expected to offer compensation in cases, where necessary, and is likely to be held in private. A judge-led inquiry or commission may have the advantage of bringing together the 13 separate compensation cases currently going through the courts.
It claims those cases are leading to complex demands for the disclosure of documents that the intelligence services may not welcome, and are finding difficult to control.
U.S. Constitutional lawyer and Harper’s magazine writer Scott Horton writes of the inquiry in his on-line column of Harper’s Magazine. He says the inquiry’s focus on compensation to torture victims shows that the British Government takes seriously its obligations under the Convention Against Torture to compensate victims of torture carried out by those acting under color of office.
“Compare this with the dismissive posture taken by the U.S. Justice Department, which has sought zealously to foreclose all paths of compensation and pointedly ignores America’s formal treaty obligations, which are to be implemented by the Executive,” he says.
The UK inquiry is independent of the question of criminal prosecutions. As The Guardian notes, a police investigation is still pending, and it is likely to lead to a recommendation to the Director of Public Prosecutions on specific criminal charges.
Some of the litigants have demanded an inquiry as part of their civil claims. Cameron is understood to have discussed the issue in recent days with President Obama, but no decision is expected very shortly.
While some in Whitehall have said no inquiry can be held while so many alleged victims of torture and rendition are suing the government, most legal experts believe it is possible, the Guardian said.
The government's reviewer of terrorism legislation, Lord Carlile, said he did
not believe the inquiry could be held until the Metropolitan police had decided whether to recommend to the director of public prosecutions (DPP) that charges against intelligence agents should go ahead. But he said this was not the universal view.
Hague first spoke of the need for a judge-led inquiry after the coalition agreement, but his remarks appeared to unsettle the intelligence services and required further discussion on Cameron's national security inquiry.
Complex issues such as perjury, the publication of evidence and whether those seeking compensation would be required to drop all other claims will need to be agreed.
Backbench MPs and human rights groups hailed the government's imminent decision on an inquiry into UK involvement in torture and rendition while warning ministers that it needed to be independent and have a broad remit.
Andrew Tyrie, the Tory MP whose all-party parliamentary group on extraordinary rendition has been campaigning on this issue for several years, said: "It is essential that the judge is independent, and seen to be independent, and makes as much as possible of his or her findings public. It is in the national interest that we get to the bottom of this, get to the truth and move on."
Tyrie said the inquiry needed to examine not only complicity in torture, but also involvement in the US rendition program, while others said the inquiry should also embrace abuses perpetrated by British armed forced in Iraq.
David Davis, the former shadow home secretary, also stressed that the inquiry needed to be led by a judge who had access to all relevant documentation. "It is vital that such an inquiry is led by a senior and impartial judge who is able to establish the facts beyond any doubt, to remove this stain on Britain's reputation, and to ensure that such allegations can never be made again," Davis said.
"To do this he must have unfettered access to all the people and papers related to this matter and should be able to publish anything he thinks is in the public interest, to ensure that we can draw a line under this issue once and for all."
Speaking for the Liberal Democrat coalition partners, European Parliament member (MEP) Sarah Ludford said, “Only a very thorough cleaning of the stables can re-establish Britain’s reputation as a nation of principles rather than a sidekick to appalling human rights abuses. It should also be judge-led, held as far as possible in public, and not rule out the possibility of prosecutions.”
Horton says her reference to being a “sidekick to appalling human rights abuses” is clear enough. It’s an unpleasant consequence of what used to be called the “special relationship.”
“For those in the White House who argue for a policy of ‘don’t look back’ that violates their oath to uphold the Constitution and the criminal laws of the United States, the British government is furnishing an example. This is how a modern democracy—and one under Conservative leadership at that—deals with the legacy of torture, Horton said.
The question of complicity between the UK security services and the U.S CIA has continued to raise contentious issues between the two countries. Earlier this year, a former Guantanamo prisoner and British resident, Binyam Mohamed, sued the U.K. government for complicity with the CIA in his rendition and torture and requested documents to substantiate his claims.
The U.S. Government declined to grant the High Court permission to make these documents public and allegedly threatened that their disclosure could undermine relationships between the two countries’ intelligence services.
The Court eventually ordered the documents made public.
The central figure in this British case is the same Binyam Mohamed who appealed a separate U.S. case, on behalf of himself and four other terror suspects, to the U.S. Circuit Court of Appeals in San Francisco. In that case, government lawyers from the Obama Administration sought a decision not to reinstate a case that was thrown out by a lower court last year because government lawyers argued successfully that allowing the case to go forward would jeopardize U.S. national security.
In opposing reinstatement of the case, Obama’s lawyers used the same “state secrets” privilege used by Bush lawyers in the original case.
Stafford Smith told IPS that his letter to President Obama speaks for itself. He says he doesn’t know who redacted the materials he submitted to the Defense Department.
President Obama’s strong preference for not mounting a full-scale investigation of CIA prisoner treatment emerged early in his administration, despite the release by the Justice Department of a series of “torture memos” written by Bush-era DOJ senior lawyers. The memos authorized and explained enhanced interrogation techniques, including waterboarding.
Friday, June 25, 2010
Mandatory Injustice: Losing the War on Drugs
By William Fisher
Stephanie Nodd grew up in Mobile, Alabama. The young African-American became pregnant in ninth grade and dropped out of school to care for her child. She was barely 20 years old when she met John, a handsome drug dealer new to the city with lots of money. He showered her with compliments and promised to reward her generously for helping him set up in the area.
Stephanie introduced John to people and local drug spots, sold crack to customers on the street and later delivered cocaine and picked up money for him. In return, John gave her cash, money which Stephanie, a single mother, needed to provide for her four young children.
A little over a month after meeting John, Stephanie was arrested, charged and convicted as part of John’s crack cocaine business.
According to her judge, “this defendant is not an organizer, she was not the boss of this operation. She was only a lieutenant. And I feel that because of her young age, she was influenced to a great extent by [John].” She had no prior criminal record.
So the judge departed from the life sentence required by the then-mandatory guidelines, which he calculated using the relevant conduct guideline, and held her accountable for eight kilograms of crack cocaine handled by the organization.
Stephanie was pregnant with her fifth child when she was sentenced to 30 years in federal prison a few days before Christmas of 1990. And that’s where she is today.
Had she been sentenced for involvement with powder cocaine, as opposed to crack, she would have left prison more than seven years ago.
There are literally tens of thousands of Stephanies in our prisons today.
How does this happen?
In 1986, the U.S. Congress passed laws that created a 100 to 1 sentencing disparity for crack vs. powder cocaine possession. People convicted in federal court of possession of five grams of crack cocaine receive a minimum mandatory sentence of five years in federal prison. Possession of 500 grams of powder cocaine carries the same sentence.
Many legal experts and human rights advocates consider this to be a racist law that discriminates against minorities, because African-Americans are more likely to use crack than powder cocaine. Powder is considered an upper middle class drug, largely used by whites as a weekend “recreational” drug.
One such legal expert is Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School. He told Truthout, “I believe that the original ‘rationale’ for the cocaine sentencing disparity was implicit and just evolved: i.e. it was probably racism, pure and simple, that allowed the disparity to emerge to begin with (since elites and mainly whites used powder and poor and minorities used crack).”
The emphasis on drug quantity as opposed to individualized culpability has resulted in scores of unjustifiably draconian sentences.
Reform along these lines would ideally come both from Congress and the United States Sentencing Commission: Congress should reformulate the triggers for mandatory minimums away from mere drug quantity, and the Commission should eschew reliance on drug quantity as the driving factor in determining the offense level.
Although the US Senate passed a bill on March 20, 2010 that would cut the crack-powder sentencing disparity to 18:1, that law is still awaiting passage in the House of Representatives and the signature of the President. And Congresspersons of both parties are so terrified of being seen as “soft on crime” that, year after year, voting to abolish mandatory minimums has become a major “third-rail” vote – and has consistently failed.
Law enforcement is generally, but not unanimously, in favor of the status quo. This is true at both Federal and State levels. However, state treasurers and Federal budget-makers are appalled at the skyrocketing costs of incarceration. Nonetheless, those associated with the so-called War on Drugs generally believe long incarceration to be a deterrent to drug abuse, and lobby aggressively for even more severe sentences.
What are the consequences of the current system?
The most shocking is that the U.S. has the largest prison population in the world. We have less than 5% of the world’s population, yet we incarcerate about 25% of all people in prisons and jails everywhere in the world.
And the cocaine/powder ratio used in drug sentencing is reportedly among the most important reasons for the explosion of our prison population. In the 1980s, while the number of arrests for all crimes was rising 28%, the number of arrests for drug offenses rose 126%. By 2008, the "War on Drugs" resulted in 1.5 million Americans being arrested for drug offenses, and 500,000 of them being imprisoned.
Moreover, crime statistics show that black Americans are consistently far more likely to be targeted by law enforcement for drug crimes, and to receive much stiffer penalties and sentences than non-minorities. Those same statistics also show that such events are far more likely to take place in areas with high minority crime, including low income housing neighborhoods and city projects.
Nationwide, African-Americans are sent to state prisons for drug offenses 13 times more often than other races, even though they reportedly comprise 13% of regular drug users only.
The rate of imprisonment in the United States is between five and eight times higher than countries in Western Europe and 12 times higher than Japan. And the average federal sentence in the United States has tripled in length since the advent of mandatory minimum sentences 25 years ago.
A second major factor in the explosion of the prison population is found in application of the Mandatory Minimum Guidelines for federal judges - mandatory, that is, until 2004, when a major change happened this way:
A man named Blakely pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range.
The Washington Court of Appeals agreed, rejecting Blakely’s argument that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.
But the Supreme Court disagreed. It ruled on June 24, 2004, that the Sixth Amendment right to trial by jury required judges to use only facts proved to a jury, not decided by a judge alone, to increase a sentence beyond the standard range.
Thus, the guidelines became voluntary guides for Federal judges, not mandatory orders. A number of States followed suit.
Here’s how the Guidelines worked:
Under the federal sentencing scheme, a defendant's range of possible punishments was reduced to a mathematical formula. If you had a long criminal history, your sentence would be longer. If the prosecutor could persuade a judge and jury that you sold a large amount of drugs, your penalty range climbed still higher. If you were the gang leader, you would get still more years on the inside. Being young could lighten your sentence. So could ratting out your accomplices, as could a confession.
The Guidelines left judges with little to judge, perhaps a minimum and a maximum separated by only a few years. A federal judge could ignore the guideline range, but the decision would likely be appealed and ultimately reversed.
The Blakely decision changed all that.
Defense attorneys lauded the decision. But while the once-mandatory guidelines are now voluntary, they are still with us, largely because some states have not adopted the new voluntary regimen and some judges appear to have difficulty shedding the old, more punitive ways, resulting in overly harsh sentences.
The Guidelines are perhaps a perfect illustration of good intentions going wrong, or proof of the law of unintended consequences.
The Guidelines were the work of the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. The primary goal was to alleviate sentencing disparities that research had indicated were prevalent in the existing sentencing system, and provide for determinate sentencing.
This refers to sentencing the actual limits of which are determined at the time the sentence is imposed, as opposed to indeterminate sentencing, in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving their sentence.
Sentencing criteria already in use by judges were adopted as guidelines, essentially codifying existing practice. Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.
Jay Rorty, who heads the Drug Law Reform Project for the American Civil Liberties Union, has strong feelings about mandatory minimums. Here’s what he told the Sentencing Commission in May:
“Mandatory minimum sentences defeat the purposes of sentencing, create unwarranted racial disparity and over-crowd our prison system. They take discretion away from judges and give it to prosecutors who use these high sentences to frustrate Constitutional rights.”
“In 1991, the USSC delivered a report to Congress denouncing mandatory minimums and calling for their abolition. The report gathered widespread support from policymakers, judges and practitioners in the field of federal sentencing. But in the years since the report, Congress increased the number and length of mandatory minimum sentences.”
He continued: “We cannot continue to use a one-size-fits-all approach to sentencing. Instead, we must balance public safety with the need to assist individuals on the path to health and rehabilitation.”
The Commission has been telling Congress precisely that for many years. And its pleas have fallen on largely deaf ears.
The one mandatory minimum that Congress appears poised to revise is that governing crack cocaine offenses. The law, which penalizes five grams of crack as harshly as 500 grams of powder cocaine, has been denounced by the ACLU, congressional leaders and the Obama Administration as racially unfair. The Fair Sentencing Act, referring to above, would reduce the 100:1 crack-powder ratio to 18:1, and also eliminate the mandatory minimum for simple possession.
The Justice Department has acknowledged that some mandatory minimums are too harsh, has called the resulting spike in the prison population "unsustainable," and agreed that some reform was warranted.
But it also maintains that using mandatory minimums to pressure defendants into plea bargains is a legitimate sentencing practice.
The policy of the U.S. Attorney’s Office for the Northern District of California illustrates how mandatory minimums can be used to compromise Constitutional rights and dramatically intensify sentences. In that district, until recently, prosecutors routinely threatened to file Informations under 21 U.S.C. § 851 against defendants with prior convictions. The effect of such an Information would be to double the mandatory minimum or require a mandatory life sentence.
Then prosecutors then use that threat to force defendants to bargain away their Constitutional rights to request bail, remain silent, move to suppress
illegally acquired evidence, discover the evidence against them, and receive a trial by jury — all as the price for not being exposed to the higher minimum.
Says the ACLU’s Rorty, “Congress sought to create a uniform baseline for sentencing that reflects all relevant factors, including offense conduct, actual social harms of the offense, and offender role and circumstances — not to make prosecutors’ jobs easier and facilitate the abrogation of defendants’ rights.”
The ACLU has submitted three seemingly common-sense recommendations to the Sentencing Commission – acknowledging that the Commission is not about to repeal mandatory minimums any time soon.
First, it says that lowering minimums or eliminating a subset of minimums would have many salutary effects beyond simply decreasing sentences. For example, it would expand judicial discretion to consider individual offenders’ circumstances and roles in their offenses, and thus to craft fairer sentences.
Second, reducing the impact of the mandatory minimums on the ultimate sentence would reduce their outsized influence as a prosecutorial scare tactic that can be deployed to force defendants to trade in their constitutional rights to avoid facing draconian sentences.
Third, lowering mandatory minimums will reduce the racial disparities that result when different prosecutors make different charging decisions for different defendants.
“As a by-product of decreased sentences, federal prison populations — and therefore federal prison expenditures — will experience a long-term decline, resulting in substantial savings to the public,” the ACLU believes.
And what is the likely picture for the future?
Over the past forty years, U.S. taxpayers have financed a $1 trillion "War on Drugs." Many observers say the program has failed to meet any of its declared goals.
“That's putting it mildly,” says the ACLU. “While the favored ‘drug du jour’ varies over time, overall illicit drug use in America, by and large, has remained steady (while) arrests of drug users have skyrocketed. Drugs are cheaper, purer, and more available than ever.”
Meanwhile, the ACLU alleges, “The U.S. is suffering a crisis of mass incarceration fueled most significantly by the War on Drugs. The racially skewed way in which the war is waged has devastated our communities of color…and while the U.S. continues to throw money at ineffective supply-side strategies aimed at stopping drugs at their source or intercepting them at the border, international cartels have set up shop in our own national parks, and Mexico bleeds.”
The “drug czar”, Gil Kerlikowske, Director of the Office of National Drug Control Policy (ONDCP), recently told the Wall Street Journal that his office now considers the drug war to be a public health problem.
“We moved from 'it's a police problem' or 'a criminal justice problem' to 'it's a criminal justice, public health and social policy problem' to 'it's a public-health problem’,” he said.
Yet the 2010 National Drug Control Strategy still allocates 64 percent of federal drug control dollars to "supply reduction" law enforcement strategies and only 36 percent to "demand reduction" strategies like treatment and prevention.
Moreover, ONDCP altered its accounting methods in 2003 to omit the cost of warehousing drug offenders in federal prisons, counting only the costs of programs provided to the inmates.
According to Peter Reuter, who founded the RAND Corporation's Drug Policy Research Center, which makes the Bureau appear, by function, “only as a treatment agency.”
The Sentencing Commission is not slated to issue its report to Congress until October –just a month before the mid-term Congressional elections. Truthout asked Congress watchers whether anyone who has experienced the craven craziness of those who represent us at that particular point in the calendar honestly believes that any Congressperson will take any action likely to make us proud of them?
Well, they tell us there may be some anonymous nibbling around the margins. And Sen. Jim Webb’s proposed National Crime Commission bill may become law, opening the door to a more focused, more aggressive look into all aspects of our justice system, including sentencing.
But, for major changes, the answer for now seems –again -- to be a resounding “not this year.”
This article originally appeared in Truthout.org.
Stephanie Nodd grew up in Mobile, Alabama. The young African-American became pregnant in ninth grade and dropped out of school to care for her child. She was barely 20 years old when she met John, a handsome drug dealer new to the city with lots of money. He showered her with compliments and promised to reward her generously for helping him set up in the area.
Stephanie introduced John to people and local drug spots, sold crack to customers on the street and later delivered cocaine and picked up money for him. In return, John gave her cash, money which Stephanie, a single mother, needed to provide for her four young children.
A little over a month after meeting John, Stephanie was arrested, charged and convicted as part of John’s crack cocaine business.
According to her judge, “this defendant is not an organizer, she was not the boss of this operation. She was only a lieutenant. And I feel that because of her young age, she was influenced to a great extent by [John].” She had no prior criminal record.
So the judge departed from the life sentence required by the then-mandatory guidelines, which he calculated using the relevant conduct guideline, and held her accountable for eight kilograms of crack cocaine handled by the organization.
Stephanie was pregnant with her fifth child when she was sentenced to 30 years in federal prison a few days before Christmas of 1990. And that’s where she is today.
Had she been sentenced for involvement with powder cocaine, as opposed to crack, she would have left prison more than seven years ago.
There are literally tens of thousands of Stephanies in our prisons today.
How does this happen?
In 1986, the U.S. Congress passed laws that created a 100 to 1 sentencing disparity for crack vs. powder cocaine possession. People convicted in federal court of possession of five grams of crack cocaine receive a minimum mandatory sentence of five years in federal prison. Possession of 500 grams of powder cocaine carries the same sentence.
Many legal experts and human rights advocates consider this to be a racist law that discriminates against minorities, because African-Americans are more likely to use crack than powder cocaine. Powder is considered an upper middle class drug, largely used by whites as a weekend “recreational” drug.
One such legal expert is Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School. He told Truthout, “I believe that the original ‘rationale’ for the cocaine sentencing disparity was implicit and just evolved: i.e. it was probably racism, pure and simple, that allowed the disparity to emerge to begin with (since elites and mainly whites used powder and poor and minorities used crack).”
The emphasis on drug quantity as opposed to individualized culpability has resulted in scores of unjustifiably draconian sentences.
Reform along these lines would ideally come both from Congress and the United States Sentencing Commission: Congress should reformulate the triggers for mandatory minimums away from mere drug quantity, and the Commission should eschew reliance on drug quantity as the driving factor in determining the offense level.
Although the US Senate passed a bill on March 20, 2010 that would cut the crack-powder sentencing disparity to 18:1, that law is still awaiting passage in the House of Representatives and the signature of the President. And Congresspersons of both parties are so terrified of being seen as “soft on crime” that, year after year, voting to abolish mandatory minimums has become a major “third-rail” vote – and has consistently failed.
Law enforcement is generally, but not unanimously, in favor of the status quo. This is true at both Federal and State levels. However, state treasurers and Federal budget-makers are appalled at the skyrocketing costs of incarceration. Nonetheless, those associated with the so-called War on Drugs generally believe long incarceration to be a deterrent to drug abuse, and lobby aggressively for even more severe sentences.
What are the consequences of the current system?
The most shocking is that the U.S. has the largest prison population in the world. We have less than 5% of the world’s population, yet we incarcerate about 25% of all people in prisons and jails everywhere in the world.
And the cocaine/powder ratio used in drug sentencing is reportedly among the most important reasons for the explosion of our prison population. In the 1980s, while the number of arrests for all crimes was rising 28%, the number of arrests for drug offenses rose 126%. By 2008, the "War on Drugs" resulted in 1.5 million Americans being arrested for drug offenses, and 500,000 of them being imprisoned.
Moreover, crime statistics show that black Americans are consistently far more likely to be targeted by law enforcement for drug crimes, and to receive much stiffer penalties and sentences than non-minorities. Those same statistics also show that such events are far more likely to take place in areas with high minority crime, including low income housing neighborhoods and city projects.
Nationwide, African-Americans are sent to state prisons for drug offenses 13 times more often than other races, even though they reportedly comprise 13% of regular drug users only.
The rate of imprisonment in the United States is between five and eight times higher than countries in Western Europe and 12 times higher than Japan. And the average federal sentence in the United States has tripled in length since the advent of mandatory minimum sentences 25 years ago.
A second major factor in the explosion of the prison population is found in application of the Mandatory Minimum Guidelines for federal judges - mandatory, that is, until 2004, when a major change happened this way:
A man named Blakely pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range.
The Washington Court of Appeals agreed, rejecting Blakely’s argument that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.
But the Supreme Court disagreed. It ruled on June 24, 2004, that the Sixth Amendment right to trial by jury required judges to use only facts proved to a jury, not decided by a judge alone, to increase a sentence beyond the standard range.
Thus, the guidelines became voluntary guides for Federal judges, not mandatory orders. A number of States followed suit.
Here’s how the Guidelines worked:
Under the federal sentencing scheme, a defendant's range of possible punishments was reduced to a mathematical formula. If you had a long criminal history, your sentence would be longer. If the prosecutor could persuade a judge and jury that you sold a large amount of drugs, your penalty range climbed still higher. If you were the gang leader, you would get still more years on the inside. Being young could lighten your sentence. So could ratting out your accomplices, as could a confession.
The Guidelines left judges with little to judge, perhaps a minimum and a maximum separated by only a few years. A federal judge could ignore the guideline range, but the decision would likely be appealed and ultimately reversed.
The Blakely decision changed all that.
Defense attorneys lauded the decision. But while the once-mandatory guidelines are now voluntary, they are still with us, largely because some states have not adopted the new voluntary regimen and some judges appear to have difficulty shedding the old, more punitive ways, resulting in overly harsh sentences.
The Guidelines are perhaps a perfect illustration of good intentions going wrong, or proof of the law of unintended consequences.
The Guidelines were the work of the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. The primary goal was to alleviate sentencing disparities that research had indicated were prevalent in the existing sentencing system, and provide for determinate sentencing.
This refers to sentencing the actual limits of which are determined at the time the sentence is imposed, as opposed to indeterminate sentencing, in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving their sentence.
Sentencing criteria already in use by judges were adopted as guidelines, essentially codifying existing practice. Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.
Jay Rorty, who heads the Drug Law Reform Project for the American Civil Liberties Union, has strong feelings about mandatory minimums. Here’s what he told the Sentencing Commission in May:
“Mandatory minimum sentences defeat the purposes of sentencing, create unwarranted racial disparity and over-crowd our prison system. They take discretion away from judges and give it to prosecutors who use these high sentences to frustrate Constitutional rights.”
“In 1991, the USSC delivered a report to Congress denouncing mandatory minimums and calling for their abolition. The report gathered widespread support from policymakers, judges and practitioners in the field of federal sentencing. But in the years since the report, Congress increased the number and length of mandatory minimum sentences.”
He continued: “We cannot continue to use a one-size-fits-all approach to sentencing. Instead, we must balance public safety with the need to assist individuals on the path to health and rehabilitation.”
The Commission has been telling Congress precisely that for many years. And its pleas have fallen on largely deaf ears.
The one mandatory minimum that Congress appears poised to revise is that governing crack cocaine offenses. The law, which penalizes five grams of crack as harshly as 500 grams of powder cocaine, has been denounced by the ACLU, congressional leaders and the Obama Administration as racially unfair. The Fair Sentencing Act, referring to above, would reduce the 100:1 crack-powder ratio to 18:1, and also eliminate the mandatory minimum for simple possession.
The Justice Department has acknowledged that some mandatory minimums are too harsh, has called the resulting spike in the prison population "unsustainable," and agreed that some reform was warranted.
But it also maintains that using mandatory minimums to pressure defendants into plea bargains is a legitimate sentencing practice.
The policy of the U.S. Attorney’s Office for the Northern District of California illustrates how mandatory minimums can be used to compromise Constitutional rights and dramatically intensify sentences. In that district, until recently, prosecutors routinely threatened to file Informations under 21 U.S.C. § 851 against defendants with prior convictions. The effect of such an Information would be to double the mandatory minimum or require a mandatory life sentence.
Then prosecutors then use that threat to force defendants to bargain away their Constitutional rights to request bail, remain silent, move to suppress
illegally acquired evidence, discover the evidence against them, and receive a trial by jury — all as the price for not being exposed to the higher minimum.
Says the ACLU’s Rorty, “Congress sought to create a uniform baseline for sentencing that reflects all relevant factors, including offense conduct, actual social harms of the offense, and offender role and circumstances — not to make prosecutors’ jobs easier and facilitate the abrogation of defendants’ rights.”
The ACLU has submitted three seemingly common-sense recommendations to the Sentencing Commission – acknowledging that the Commission is not about to repeal mandatory minimums any time soon.
First, it says that lowering minimums or eliminating a subset of minimums would have many salutary effects beyond simply decreasing sentences. For example, it would expand judicial discretion to consider individual offenders’ circumstances and roles in their offenses, and thus to craft fairer sentences.
Second, reducing the impact of the mandatory minimums on the ultimate sentence would reduce their outsized influence as a prosecutorial scare tactic that can be deployed to force defendants to trade in their constitutional rights to avoid facing draconian sentences.
Third, lowering mandatory minimums will reduce the racial disparities that result when different prosecutors make different charging decisions for different defendants.
“As a by-product of decreased sentences, federal prison populations — and therefore federal prison expenditures — will experience a long-term decline, resulting in substantial savings to the public,” the ACLU believes.
And what is the likely picture for the future?
Over the past forty years, U.S. taxpayers have financed a $1 trillion "War on Drugs." Many observers say the program has failed to meet any of its declared goals.
“That's putting it mildly,” says the ACLU. “While the favored ‘drug du jour’ varies over time, overall illicit drug use in America, by and large, has remained steady (while) arrests of drug users have skyrocketed. Drugs are cheaper, purer, and more available than ever.”
Meanwhile, the ACLU alleges, “The U.S. is suffering a crisis of mass incarceration fueled most significantly by the War on Drugs. The racially skewed way in which the war is waged has devastated our communities of color…and while the U.S. continues to throw money at ineffective supply-side strategies aimed at stopping drugs at their source or intercepting them at the border, international cartels have set up shop in our own national parks, and Mexico bleeds.”
The “drug czar”, Gil Kerlikowske, Director of the Office of National Drug Control Policy (ONDCP), recently told the Wall Street Journal that his office now considers the drug war to be a public health problem.
“We moved from 'it's a police problem' or 'a criminal justice problem' to 'it's a criminal justice, public health and social policy problem' to 'it's a public-health problem’,” he said.
Yet the 2010 National Drug Control Strategy still allocates 64 percent of federal drug control dollars to "supply reduction" law enforcement strategies and only 36 percent to "demand reduction" strategies like treatment and prevention.
Moreover, ONDCP altered its accounting methods in 2003 to omit the cost of warehousing drug offenders in federal prisons, counting only the costs of programs provided to the inmates.
According to Peter Reuter, who founded the RAND Corporation's Drug Policy Research Center, which makes the Bureau appear, by function, “only as a treatment agency.”
The Sentencing Commission is not slated to issue its report to Congress until October –just a month before the mid-term Congressional elections. Truthout asked Congress watchers whether anyone who has experienced the craven craziness of those who represent us at that particular point in the calendar honestly believes that any Congressperson will take any action likely to make us proud of them?
Well, they tell us there may be some anonymous nibbling around the margins. And Sen. Jim Webb’s proposed National Crime Commission bill may become law, opening the door to a more focused, more aggressive look into all aspects of our justice system, including sentencing.
But, for major changes, the answer for now seems –again -- to be a resounding “not this year.”
This article originally appeared in Truthout.org.
McCarthy Redux
By William Fisher
In the wake of yesterday’s Supreme Court decision upholding a law making it a crime to provide any “material support” to an organization designated as a “terrorist” by the U.S. government, former U.S. President Jimmy Carter charged that the law “actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”
Carter, whose organization, The Carter Center, filed a “friend of the court” brief in the case, said in a statement, "We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The 'material support law' – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”
He added, “ The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."
Carter joined numerous civil and human rights advocates in attacking the Court’s 6-3 ruling “to criminalize speech” in Holder v. Humanitarian Law Project. It was the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims.
Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon.
Chief Justice John Roberts wrote for the court’s majority, affirming in part, reversing in part, and remanding the case back to the lower court for review.
Justice Stephen Breyer dissented and read his dissent aloud before his fellow justices – always a sign of an opinion very deeply felt. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
The Court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers' Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.
Citing various high court rulings instructing lower courts not to construe a statute “so as to abridge the exercise of right guaranteed under the First Amendment,” Justice Breyer wrote, ”Not even the serious and deadly problem of international terrorism can require automatic forfeiture of First Amendment rights.“
“In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national defense, and that it grants particular authority to the President in matters of foreign affairs,” he wrote.
Originally brought in 1998, the case challenges the constitutionality of laws that make it a crime to provide “material support” to groups the administration has designated as “terrorist.” The plaintiffs in the case sought to engage in speech advocating only nonviolent, lawful ends, but the government took the position that any such speech, including even filing an amicus brief in the U.S. Supreme Court, would be a crime if done in support of a designated “terrorist group.”
The plaintiffs’ lead lawyer, Georgetown Law Center’s David Cole, a widely respected Constitutional scholar, sees the “material support” paradigm of “preemptively weeding out threats to national security, guilt by association” resurrected from the McCarthy era.
He told IPS, “While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
Cole asserts that support for the lawful activities of a designated group should not be unlawful, and that the not-for-profit sector needs to insist that constitutional rights apply in the war on terror. He is calling for changes in the enabling legislation when Congress returns from its August recess.
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.
The Court rejected the government’s argument that the statute, when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive.
Instead, the Court found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny.
This one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.
One Constitutional authority, law professor Francis Boyle of the University of Illinois law school, told IPS that the SCOTUS decision upheld the government’s position as set out by the Solicitor General, Elena Kagan, who has been nominated by President Barack Obama to be the next associate justice of the Supreme Court.
Boyle said that Kagan “argued this case as Solicitor General and maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organization would be violating the material support statute and thus risk criminal prosecution. The Supreme Court did not reach that hypothetical issue, but did uphold the statute. According to this decision, the advocacy of international law, human rights, and the peaceful settlement of international disputes can be criminalized.”
Boyle said Kagan's arguments in this case “demonstrate emphatically why she must not be confirmed for the US Supreme Court. She has driven yet another nail into the coffin of the First Amendment and the U.S. Bill of Rights that was originally constructed by the Bush administration with the USA Patriot Act.”
The American Civil Liberties Union (ACLU) said the Court’s ruling “thwarts the efforts of human rights organizations to persuade violent actors to renounce violence or cease their human rights abuses and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups.”
Under the law, individuals face up to 15 years in prison for providing "material support" to foreign terrorist organizations (FTOs), even if their work is intended to promote peaceful, lawful objectives. "Material support" is defined to include any "service," "training," "expert advice or assistance" or "personnel."
In the wake of yesterday’s Supreme Court decision upholding a law making it a crime to provide any “material support” to an organization designated as a “terrorist” by the U.S. government, former U.S. President Jimmy Carter charged that the law “actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”
Carter, whose organization, The Carter Center, filed a “friend of the court” brief in the case, said in a statement, "We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The 'material support law' – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”
He added, “ The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."
Carter joined numerous civil and human rights advocates in attacking the Court’s 6-3 ruling “to criminalize speech” in Holder v. Humanitarian Law Project. It was the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims.
Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon.
Chief Justice John Roberts wrote for the court’s majority, affirming in part, reversing in part, and remanding the case back to the lower court for review.
Justice Stephen Breyer dissented and read his dissent aloud before his fellow justices – always a sign of an opinion very deeply felt. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
The Court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers' Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.
Citing various high court rulings instructing lower courts not to construe a statute “so as to abridge the exercise of right guaranteed under the First Amendment,” Justice Breyer wrote, ”Not even the serious and deadly problem of international terrorism can require automatic forfeiture of First Amendment rights.“
“In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national defense, and that it grants particular authority to the President in matters of foreign affairs,” he wrote.
Originally brought in 1998, the case challenges the constitutionality of laws that make it a crime to provide “material support” to groups the administration has designated as “terrorist.” The plaintiffs in the case sought to engage in speech advocating only nonviolent, lawful ends, but the government took the position that any such speech, including even filing an amicus brief in the U.S. Supreme Court, would be a crime if done in support of a designated “terrorist group.”
The plaintiffs’ lead lawyer, Georgetown Law Center’s David Cole, a widely respected Constitutional scholar, sees the “material support” paradigm of “preemptively weeding out threats to national security, guilt by association” resurrected from the McCarthy era.
He told IPS, “While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
Cole asserts that support for the lawful activities of a designated group should not be unlawful, and that the not-for-profit sector needs to insist that constitutional rights apply in the war on terror. He is calling for changes in the enabling legislation when Congress returns from its August recess.
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he says.
The Court rejected the government’s argument that the statute, when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive.
Instead, the Court found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny.
This one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.
One Constitutional authority, law professor Francis Boyle of the University of Illinois law school, told IPS that the SCOTUS decision upheld the government’s position as set out by the Solicitor General, Elena Kagan, who has been nominated by President Barack Obama to be the next associate justice of the Supreme Court.
Boyle said that Kagan “argued this case as Solicitor General and maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organization would be violating the material support statute and thus risk criminal prosecution. The Supreme Court did not reach that hypothetical issue, but did uphold the statute. According to this decision, the advocacy of international law, human rights, and the peaceful settlement of international disputes can be criminalized.”
Boyle said Kagan's arguments in this case “demonstrate emphatically why she must not be confirmed for the US Supreme Court. She has driven yet another nail into the coffin of the First Amendment and the U.S. Bill of Rights that was originally constructed by the Bush administration with the USA Patriot Act.”
The American Civil Liberties Union (ACLU) said the Court’s ruling “thwarts the efforts of human rights organizations to persuade violent actors to renounce violence or cease their human rights abuses and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups.”
Under the law, individuals face up to 15 years in prison for providing "material support" to foreign terrorist organizations (FTOs), even if their work is intended to promote peaceful, lawful objectives. "Material support" is defined to include any "service," "training," "expert advice or assistance" or "personnel."
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