By William Fisher
Over the past few months, senior US military figures have been taking to the airways to reassure the public that the bulk of American and NATO forces will be ready to leave Afghanistan by 2014. Newspaper, cable news, broadcast networks – they’ve all carried prominently positioned and optimistic accounts of the excellent training the Afghan army and police are receiving and how this will make the Afghans ready to defend their country and establish the rule of law.
But then I came across a recent UN report that caused me to question everything I thought I knew. Here’s what it said:
Nearly half the prisoners in Afghan jails – including children under 18 -- have been tortured to extract confessions and deprived of the most basic due process protections, according to the United Nations Assistance Mission in Afghanistan (UNAMA). The UN body is calling on Afghan authorities to “take all possible steps to end and prevent torture, and provide accountability for all acts of torture.”
The Mission’s conclusions are based on interviews conducted from October 2010 to August 2011 with 379 pre-trial detainees and convicted prisoners at 47 detention facilities in 22 provinces across Afghanistan.
In total, 324 of the 379 persons interviewed were detained by National Directorate of Security (NDS) or Afghan National Police (ANP) forces for national security crimes -- suspected of being Taliban fighters, suicide attack facilitators, producers of improvised explosive devices, and others implicated in crimes associated with the armed conflict in Afghanistan.
The US and its NATO allies are currently training both the police force and the security services to keep the peace and maintain law and order in the country. It is unclear whether their training extends to professional prison procedures.
In situations where torture occurred, it typically took the form of abusive interrogation practices used to obtain confessions from individuals detained on suspicion of crimes against the State. The practices documented meet the international definition of torture.
Torture occurs when State officials, acting in their official capacity inflict or order, consent or acquiesce to the infliction of severe physical or mental pain or suffering against an individual to obtain a confession or information, or to punish or discriminate against the individual.
Such practices amounting to torture are among the most serious human rights violations under international law, are crimes under Afghan law and are strictly prohibited under both Afghan and international law.
Detainees described experiencing torture in the form of suspension being hung by the wrists from chains or other devices attached to the wall, ceiling, iron bars or other fixtures for lengthy periods) and beatings, especially with rubber hoses, electric cables or wires or wooden sticks and most frequently on the soles of the feet.
Electric shock, twisting and wrenching of detainees’ genitals, stress positions including forced standing, removal of toenails and threatened sexual abuse were among other forms of torture that detainees reported. Routine blindfolding and hooding and denial of access to medical care in some facilities were also reported.
UNAMA documented one death in ANP and NDS custody from torture in Kandahar in April 2011.
UNAMA’s detention observation found compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS detention experienced interrogation techniques at the hands of NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.
Nearly all detainees tortured by NDS officials reported the abuse took place during interrogations and was aimed at obtaining a confession or information. In almost every case, NDS officials stopped the use of torture once detainees confessed to the crime of which they were accused or provided the requested information.
UNAMA also found that children under the age of 18 years experienced torture by NDS officials.
More than one third of the 117 conflict-related detainees UNAMA interviewed who had been in ANP detention experienced treatment that amounted to torture or to other cruel, inhuman or degrading treatment.
UNAMA found compelling evidence that NDS officials at five facilities systematically tortured detainees for the purpose of obtaining confessions and information. These are the provincial NDS facilities in Herat, Kandahar, Khost and Laghman, and the national facility of the NDS Counter-Terrorism Department 124 (formerly Department 90) in Kabul.
UNAMA received multiple, credible allegations of torture at two other provincial NDS facilities in Kapisa and Takhar. UNAMA did not find indications of torture at two provincial NDS facilities, Paktya and Uruzgan, at the time of its visits to these facilities.
UNAMA received numerous allegations regarding the use of torture at 15 other locations covering 17 NDS facilities. Twenty-five percent of detainees interviewed in these 17 facilities alleged they had been tortured. At the time of writing of this report, UNAMA had not established the credibility of the allegations based on the number of interviews conducted and the need to corroborate allegations satisfactorily. UNAMA continues to investigate these allegations.
Detainees in ANP custody reported that abuse occurred in a broader range of circumstances and settings. Some of this abuse constituted torture while other methods amounted to cruel, inhuman, or degrading treatment. Reports of abuse by the ANP included police officers committing torture or ill-treatment at the time of arrest, at check posts, at district headquarters, and at provincial headquarters.
The UN notes that the Government of Afghanistan is obliged under Afghan law and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to investigate promptly all acts of torture and other ill-treatment, prosecute those responsible, provide redress to victims and prevent further acts of torture.
The Government’s obligation to respect the prohibition against torture is also non-derogable meaning that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, can be invoked as a justification of torture.
UNAMA’s detention observation included interviews with 89 detainees who reported the involvement of international military forces either alone or together with Afghan forces in their capture and transfer to NDS or ANP custody. UNAMA found compelling evidence that 19 of these 89 detainees were tortured in NDS custody and three in ANP custody.
The situation described in this report of transfer to a risk of torture speaks to the need for robust oversight and monitoring of all transfers of detainees to NDS and ANP custody by international military forces in Afghanistan, and suspension of transfers to facilities where credible reports of torture exist.
Canada and the United Kingdom ceased transfers of detainees to NDS facilities in Kandahar and Kabul at various times in recent years based on reports of torture and ill-treatment. These countries implemented post-transfer monitoring schemes allowing them to track the treatment of detainees their armed forces handed over to Afghan authorities. The United States Embassy recently finalized plans for a post-transfer detainee monitoring program and a proposal is with the Government of Afghanistan for its consideration.
UNAMA found that accountability of NDS and ANP officials for torture and abuse is weak, not transparent and rarely enforced. Limited independent, judicial or external oversight exists of NDS and ANP as institutions and of crimes or misconduct committed by NDS and ANP officials including torture and abuse.
Most cases of crimes or abusive or unprofessional conduct by NDS officials are addressed internally. Senior NDS officials advised UNAMA that NDS investigated only two claims of torture in recent years, neither of which led to charges being pursued against the accused.
The Embassy advised UNAMA that it regards the program as a positive way for the US to continue its work with the Government to ensure its detention system is safe, secure and humane.
In early July 2011, US and ISAF military forces stopped transferring detainees to NDS and ANP authorities in Dai Kundi, Kandahar, Uruzgan and Zabul based on reports of a consistent practice of torture and mistreatment of detainees in NDS and ANP detention facilities in those areas. In early September 2011, in response to the findings in this report, ISAF stated that it stopped transferring detainees to certain NDS and ANP installations as a precautionary measure.
In almost all criminal cases in Afghanistan, including national security prosecutions, the case against the defendant is based on a confession, which the court usually finds both persuasive and conclusive of the defendant’s guilt. In most cases confessions are the sole form of evidence or corroboration submitted to courts to support prosecutions. Confessions are rarely examined at trial and rarely challenged by the judge or defense counsel as having been coerced.
Under Afghan law, where a confession is obtained illegally or forced, for example, under torture, it should be inadmissible in court. However, even in cases where defense lawyers raise the issue of forced confession through torture, courts usually dismiss the application and allow the confession to be used as evidence. This evidentiary practice clearly violates the letter and spirit of the law and is inconsistent with many expert studies that show information gained by torture is manifestly unreliable and non-probative of an individual’s guilt or innocence.
Another weakness in procedural safeguards for detainees in NDS custody is the lack of access to counsel. Despite the right of all detainees under Afghan law to a defense lawyer at all stages of the process, only one of the 324 detainees UNAMA interviewed in ANP or NDS detention reported they had defense counsel. Almost all defense lawyers and legal aid providers informed UNAMA they had minimal access to NDS facilities as NDS officials deliberately prevented them from accessing detainees. NDS officials told UNAMA they deny detainees’ access to defense lawyers for fear they will influence detainees and hinder NDS investigations. Defense counsel reported they generally had better access to detainees held in ANP facilities but only after ANP investigating officials presented the case to the prosecutor.
Athough detainees have the right under Afghan law to family visits, only 28 percent of detainees interviewed were permitted family visits during their detention in NDS facilities.
UNAMA documented other due process concerns and violations by NDS and ANP officials. These include the routine failure to meet procedural time limits demarcating the phases of the pre-trial criminal investigation and chain of custody, lack of clarity in the roles of arresting authorities and prosecutors, and lack of judicial oversight of pre-trial detention until very late in the pre-trial process.
Since most conflict-related detainees do not have access to defense counsel or information about their rights, the absence of these procedural safeguards has a huge negative impact on detainees’ ability to challenge the legality of their detention, prepare a credible defense, or seek protection from torture or coercion.
Is this what we hoped to achieve in Afghanistan over the past ten years? I don’t think so.
I think that when military brass comes to the US to testify before Congress or meet with key lawmakers, they tend to talk about Afghanistan, the big picture. I have never heard a visiting officer say a single word about prisons, unless he/she was asked a question.
And when Congressional delegations travel to Afghanistan for first-hand briefings, I doubt that Afghan (or American, for that matter) prisons are anywhere close to their itinerary.
They may or may not be encouraged by what they see – what they’re shown – but it’s clear that prisons didn’t make the cut.
Do we have to have another Abu Ghraib-type scandal before we can cajole Mr. Karzai and his people to stop torturing detainees and follow his own country’s laws?
That’s exactly what’s gong to happen if Karzai continues to ignore this barbarian behavior. And that will bring a heap of trouble, not only for Karzai, but for our troops in Afghanistan and their leader, Barack Obama.
Friday, December 09, 2011
Wednesday, December 07, 2011
Law Professors Outraged by Senate Vote on Indefinite Detention
By William Fisher
Ray McGovern is one of our country’s most credible contrarians. When the ex-CIA officer talks, I tend to listen. Some of what I heard last week made my hair stand on end. Here’s part of what Ray said:
In an article on Consortium News, entitled “Are Americans in Line for Gitmo?” Ray wrote:
“Ambiguous but alarming new wording, which is tucked into the National Defense Authorization Act (NDAA) and was just passed by the Senate, is reminiscent of the “extraordinary measures” introduced by the Nazis after they took power in 1933.
“And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own Constitution. As one German writer observed, ‘With sheepish submissiveness we watched it unfold, as if from a box at the theater’.
“The writer was Sebastian Haffner (real name Raimond Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin, but helpless to stop it since, as he put it, the German people ‘collectively and limply collapsed, yielded and capitulated’.
“’The result of this millionfold nervous breakdown’, wrote Haffner at the time, ‘is the unified nation, ready for anything, that is today the nightmare of the rest of the world’. Not a happy analogy.”
McGovern writes, “The Senate voted to authorize – and generally to require – ‘the Armed Forces of the United States to detain covered persons’ indefinitely. And such ‘covered persons’ are defined not just as someone implicated in the 9/11 attacks but anyone who ‘substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces’.”
He says the Senate “clearly wished for the military’s ‘law and order’ powers to extend beyond the territory of military bases on the theory that there may be “terrorsymps” (short for “terrorist sympathizers”) lurking everywhere.”
And McGovern asks: “Is the all-consuming ten-year-old struggle against terrorism rushing headlong to consume what’s left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention — or worse?”
He adds, “A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain, R-Arizona, and Lindsey Graham, R-South Carolina, to claim that the bill’s stringent provisions do apply to U.S. citizens, as well as non-citizens.”
Well, and no doubt predictably to Ray McGovern, the Senate last week passed the National Defense Authorization Act. In doing so, it intentionally left unanswered what Ray McGovern calls “a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States, strip them of their constitutional rights, and hold them in military custody indefinitely and without a trial.”
In passing the legislation – which still needs to be reconciled with a House bill – the Senators ignored the advice of virtually every senior figure in the military and the intelligence community. Carl Levin, powerful Democrat from Illinois, led the Committee.
And in passing this legislation the Senate, in effect, also thumbed its nose at the Supreme Court, which presumably settled this question in 2004 in the case of Hamdi v. Rumsfeld. Hamdi was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge.
Members such as Senator Lindsey Graham, Republican of North Carolina, says American Qaeda suspects arrested in the United States should not be exempted from battlefield-style detention. He said on the Senate floor, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”
That construct was built on the premise laid down by former President George W. Bush in the aftermath of the 9/11 attacks. The president decided, in effect, that if the president did it, it was legal. Largely on that basis, he made the most sweeping power grab in recent political memory.
And, during his Administration, there were two cases of people held as enemy combatants arrested inside the United States, one of them a citizen. Lower courts reached contradictory opinions about whether holding them in indefinite military custody was lawful, and they were transferred to the civilian system before the Supreme Court weighed in.
There were other senators, like Mike Lee, Republican of Utah, said citizen terrorism suspects should retain their “fundamental civil liberties” in order to protect the founding principles of the United States. “I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them,” he said. But they were shamefully outnumbered and the bill passed 93-7.
Against this background, the Public Record asked a group of distinguished law professors, “Do our government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial?”
Here are parts of their answers:
Lt. Col (Res.) David Frakt, professor at Barry College of Law, Frakt defended Guantanamop detainee, Mohammad Jawad, an alleged combatant facing charges for events that took place when he was a minor. Jawad is one of two detainees, along with Omar Khadr, to be prosecuted at Guantanamo for acts they allegedly committed while juveniles.
“My opinion is this: There is no Constitutional authority to detain a U.S. citizen inside the United States and place him or her in military detention at all, regardless of the nature of the crime of which the individual is suspected, with the possible exception of a U.S. citizen who has actually joined a foreign military with which we are at war, as in the case of Ex Parte Quirin during World War II.
“As for non U.S. citizens. Terrorists, regardless of nationality are simply criminals. If they are arrested committing or attempting to commit a crime domestically, they should be treated as ordinary criminals. If they are attempting to engage in armed conflict with U.S. armed forces overseas, then they can be detained under the law of armed conflict.
“There is no meaningful distinction between a foreign terrorist like the persons who tried to blow up the World Trade Center or Omar Farouk Abdulmutallab and a domestic terrorist like Timothy McVeigh. They all want to kill innocent American civilians by blowing things up. While they all may well have useful information to provide law enforcement, the Constitution does not permit that information to be extracted involuntarily or through indefinite military detention. Much as politicians like Senator Graham would like to disregard the Constitution in pursuit of the impossibly elusive goal of perfect security, doing so not only diminishes us a country, but plays right into the hands of our enemies, who will only exploit our apparent hypocrisy for propaganda and recruiting purposes.”
Kathy Manley, an Albany (NY) Criminal defense attorney and vice-president of the Capital Region Chapter of the New York Civil Liberties Union ( NYCLU).
“Do they have the power to do it? Apparently so, unless we can stop them. But it is clearly illegal, under the Due Process Clause and Treason Clauses of the Constitution (as well as others), the Posse Commitatus Act and a variety of other laws. The problem is that neither Congress, the President or even the courts seem to have the slightest inclination to uphold the rule of law. That task is therefore falling to the people, who, other than a handful of civil libertarians, had been woefully deficient in doing anything about it.
We have to stop this before all our rights are gone.”
Francis Anthony Boyle, professor of international law at the Illinois State University College of Law:
“Of course not! Every person here in the United States—citizens and aliens alike—is entitled to all of the protections set forth in the Fourth, Fifth and Sixth Amendments to the U.S. Constitution, inter alia. They are also entitled to all of the protections set forth in the International Covenant on Civil and Political Rights, a treaty to which the United States is a contracting party and thus “the Supreme Law of the Land” under Article VI of the U.S. Constitution.
“What the American People are witnessing now with this new proposed legislation is the further development of an American Police State into a Military Dictatorship, a process that was started by the so-called USA Patriot Act in 2001. President Obama must veto it or else America will lose all pretense of having our Military subjected to the control of democratically elected civilian leaders as originally envisioned and required by the Constitution.
Peter Shane, professor of law at Ohio State and currently visiting professor of law at the Harvard law school:
“I can do no better than quote the dissent of Justice Scalia – Justice SCALIA – in Hamdi v. Rumsfeld, 542 U.S. 507 (2004): ‘The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.’
“Again, quoting Scalia: ‘Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge’.”
If the Senate version emerges from the House-Senate reconciliation committee looking like the Senate version – and Obama signs it – we will be fully in the thrall of the George W. Bush-Dick Cheney-John Ashcroft-Donald Rumsfeld mafia.
The Senate will have done what the Senate seems to do best these days: Kick the can down the road.
.
.
Ray McGovern is one of our country’s most credible contrarians. When the ex-CIA officer talks, I tend to listen. Some of what I heard last week made my hair stand on end. Here’s part of what Ray said:
In an article on Consortium News, entitled “Are Americans in Line for Gitmo?” Ray wrote:
“Ambiguous but alarming new wording, which is tucked into the National Defense Authorization Act (NDAA) and was just passed by the Senate, is reminiscent of the “extraordinary measures” introduced by the Nazis after they took power in 1933.
“And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own Constitution. As one German writer observed, ‘With sheepish submissiveness we watched it unfold, as if from a box at the theater’.
“The writer was Sebastian Haffner (real name Raimond Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin, but helpless to stop it since, as he put it, the German people ‘collectively and limply collapsed, yielded and capitulated’.
“’The result of this millionfold nervous breakdown’, wrote Haffner at the time, ‘is the unified nation, ready for anything, that is today the nightmare of the rest of the world’. Not a happy analogy.”
McGovern writes, “The Senate voted to authorize – and generally to require – ‘the Armed Forces of the United States to detain covered persons’ indefinitely. And such ‘covered persons’ are defined not just as someone implicated in the 9/11 attacks but anyone who ‘substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces’.”
He says the Senate “clearly wished for the military’s ‘law and order’ powers to extend beyond the territory of military bases on the theory that there may be “terrorsymps” (short for “terrorist sympathizers”) lurking everywhere.”
And McGovern asks: “Is the all-consuming ten-year-old struggle against terrorism rushing headlong to consume what’s left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention — or worse?”
He adds, “A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain, R-Arizona, and Lindsey Graham, R-South Carolina, to claim that the bill’s stringent provisions do apply to U.S. citizens, as well as non-citizens.”
Well, and no doubt predictably to Ray McGovern, the Senate last week passed the National Defense Authorization Act. In doing so, it intentionally left unanswered what Ray McGovern calls “a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States, strip them of their constitutional rights, and hold them in military custody indefinitely and without a trial.”
In passing the legislation – which still needs to be reconciled with a House bill – the Senators ignored the advice of virtually every senior figure in the military and the intelligence community. Carl Levin, powerful Democrat from Illinois, led the Committee.
And in passing this legislation the Senate, in effect, also thumbed its nose at the Supreme Court, which presumably settled this question in 2004 in the case of Hamdi v. Rumsfeld. Hamdi was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge.
Members such as Senator Lindsey Graham, Republican of North Carolina, says American Qaeda suspects arrested in the United States should not be exempted from battlefield-style detention. He said on the Senate floor, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”
That construct was built on the premise laid down by former President George W. Bush in the aftermath of the 9/11 attacks. The president decided, in effect, that if the president did it, it was legal. Largely on that basis, he made the most sweeping power grab in recent political memory.
And, during his Administration, there were two cases of people held as enemy combatants arrested inside the United States, one of them a citizen. Lower courts reached contradictory opinions about whether holding them in indefinite military custody was lawful, and they were transferred to the civilian system before the Supreme Court weighed in.
There were other senators, like Mike Lee, Republican of Utah, said citizen terrorism suspects should retain their “fundamental civil liberties” in order to protect the founding principles of the United States. “I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them,” he said. But they were shamefully outnumbered and the bill passed 93-7.
Against this background, the Public Record asked a group of distinguished law professors, “Do our government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial?”
Here are parts of their answers:
Lt. Col (Res.) David Frakt, professor at Barry College of Law, Frakt defended Guantanamop detainee, Mohammad Jawad, an alleged combatant facing charges for events that took place when he was a minor. Jawad is one of two detainees, along with Omar Khadr, to be prosecuted at Guantanamo for acts they allegedly committed while juveniles.
“My opinion is this: There is no Constitutional authority to detain a U.S. citizen inside the United States and place him or her in military detention at all, regardless of the nature of the crime of which the individual is suspected, with the possible exception of a U.S. citizen who has actually joined a foreign military with which we are at war, as in the case of Ex Parte Quirin during World War II.
“As for non U.S. citizens. Terrorists, regardless of nationality are simply criminals. If they are arrested committing or attempting to commit a crime domestically, they should be treated as ordinary criminals. If they are attempting to engage in armed conflict with U.S. armed forces overseas, then they can be detained under the law of armed conflict.
“There is no meaningful distinction between a foreign terrorist like the persons who tried to blow up the World Trade Center or Omar Farouk Abdulmutallab and a domestic terrorist like Timothy McVeigh. They all want to kill innocent American civilians by blowing things up. While they all may well have useful information to provide law enforcement, the Constitution does not permit that information to be extracted involuntarily or through indefinite military detention. Much as politicians like Senator Graham would like to disregard the Constitution in pursuit of the impossibly elusive goal of perfect security, doing so not only diminishes us a country, but plays right into the hands of our enemies, who will only exploit our apparent hypocrisy for propaganda and recruiting purposes.”
Kathy Manley, an Albany (NY) Criminal defense attorney and vice-president of the Capital Region Chapter of the New York Civil Liberties Union ( NYCLU).
“Do they have the power to do it? Apparently so, unless we can stop them. But it is clearly illegal, under the Due Process Clause and Treason Clauses of the Constitution (as well as others), the Posse Commitatus Act and a variety of other laws. The problem is that neither Congress, the President or even the courts seem to have the slightest inclination to uphold the rule of law. That task is therefore falling to the people, who, other than a handful of civil libertarians, had been woefully deficient in doing anything about it.
We have to stop this before all our rights are gone.”
Francis Anthony Boyle, professor of international law at the Illinois State University College of Law:
“Of course not! Every person here in the United States—citizens and aliens alike—is entitled to all of the protections set forth in the Fourth, Fifth and Sixth Amendments to the U.S. Constitution, inter alia. They are also entitled to all of the protections set forth in the International Covenant on Civil and Political Rights, a treaty to which the United States is a contracting party and thus “the Supreme Law of the Land” under Article VI of the U.S. Constitution.
“What the American People are witnessing now with this new proposed legislation is the further development of an American Police State into a Military Dictatorship, a process that was started by the so-called USA Patriot Act in 2001. President Obama must veto it or else America will lose all pretense of having our Military subjected to the control of democratically elected civilian leaders as originally envisioned and required by the Constitution.
Peter Shane, professor of law at Ohio State and currently visiting professor of law at the Harvard law school:
“I can do no better than quote the dissent of Justice Scalia – Justice SCALIA – in Hamdi v. Rumsfeld, 542 U.S. 507 (2004): ‘The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.’
“Again, quoting Scalia: ‘Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge’.”
If the Senate version emerges from the House-Senate reconciliation committee looking like the Senate version – and Obama signs it – we will be fully in the thrall of the George W. Bush-Dick Cheney-John Ashcroft-Donald Rumsfeld mafia.
The Senate will have done what the Senate seems to do best these days: Kick the can down the road.
.
.
Monday, December 05, 2011
Driving on Breast Milk
By William Fisher
During my first week in undergraduate school, a bunch of fraternities “rushed” me, but went dead silent after they asked me what church I went to: They learned I was Jewish. It was like turning off a light switch.
Still looking for some extra-curricular activities, I volunteered for the weekly newspaper, The Reporter. I should explain that my college, Stetson University, was a strict Southern Baptist institution endowed by the Stetson hat fortune.
I got to be editor of the Reporter and one of the problems I faced was the list of “can’t use” words and phrases I got from a super Scrooge-faced Dean of Students after I wrote a column containing one of the verboten words. The word was “dancing.” Nobody could print that word in the Reporter. The junior prom, for example, had to be described as a “frolic.”
This was the view not only of the Dean of Students, but of most of the Southern Baptist Convention back in the late 1940s. Millions of people frolicking all across the American South but never ever you know what.
The rationale for all this was simple: Dancing resulted in pregnancy, unwanted children, and an end to virgins. That was the entire non-explanation. No reference to what must have been at least a few steps between dancing and pregnancy. These steps apparently never happened when a couple was frolicking.
I hadn’t thought of all this in more than half a century. But a small story in the L.A. Times sent me careening back through time to my misspent youth.
It was a story about women in Saudi Arabia who wanted to drive their own cars, which is illegal in the desert Kingdom.
The story explained that if women were allowed to drive in Saudi Arabia, the result would be catastrophic and lead to “no more virgins,” according to clerics from the Majlis al-Ifta al-Aala, the country’s highest religious council.
It warned that allowing women to drive would “provoke a surge in prostitution, pornography, homosexuality and divorce.” Within 10 years of the ban being lifted, it claimed, there would be “no more virgins” in the Islamic nation.
Women who disobeyed the rule faced public lashings, jail and ostracism.
And indeed, a few women were discovered driving. It was a kind of campaign they started to let the public in on the secret and get the rules changed. They could find no reason why Saudi Arabia should be the only country in the world to ban women drivers.
One of the campaigners got herself arrested, but a lot of international publicity for the “driving while woman” campaign got her freed. No lashes this time.
No change in the rules either.
But not to worry. A Saudi cleric and consultant to the Royal family came up with a solution. The L.A. Times reported that he issued a fatwa, or Islamic ruling, calling on women to give their breast milk to their male colleagues or men they come into regular contact with so as to avoid illicit mixing between the sexes. That would give men and women a maternal connection, thus circumventing the prohibition on unrelated men and women mingling.
But the Saudi women campaigners took the fatwa a step further. They say if they're not granted the right to drive, they will breastfeed their drivers to establish a symbolic maternal bond.
"Is this is all that is left to us to do: to give our breasts to the foreign drivers?" a Saudi woman named Fatima Shammary was quoted as saying by Gulf News.
The drivers would no doubt enjoy this new ritual and – who knows? – the gals might even let the guys take the wheel.
During my first week in undergraduate school, a bunch of fraternities “rushed” me, but went dead silent after they asked me what church I went to: They learned I was Jewish. It was like turning off a light switch.
Still looking for some extra-curricular activities, I volunteered for the weekly newspaper, The Reporter. I should explain that my college, Stetson University, was a strict Southern Baptist institution endowed by the Stetson hat fortune.
I got to be editor of the Reporter and one of the problems I faced was the list of “can’t use” words and phrases I got from a super Scrooge-faced Dean of Students after I wrote a column containing one of the verboten words. The word was “dancing.” Nobody could print that word in the Reporter. The junior prom, for example, had to be described as a “frolic.”
This was the view not only of the Dean of Students, but of most of the Southern Baptist Convention back in the late 1940s. Millions of people frolicking all across the American South but never ever you know what.
The rationale for all this was simple: Dancing resulted in pregnancy, unwanted children, and an end to virgins. That was the entire non-explanation. No reference to what must have been at least a few steps between dancing and pregnancy. These steps apparently never happened when a couple was frolicking.
I hadn’t thought of all this in more than half a century. But a small story in the L.A. Times sent me careening back through time to my misspent youth.
It was a story about women in Saudi Arabia who wanted to drive their own cars, which is illegal in the desert Kingdom.
The story explained that if women were allowed to drive in Saudi Arabia, the result would be catastrophic and lead to “no more virgins,” according to clerics from the Majlis al-Ifta al-Aala, the country’s highest religious council.
It warned that allowing women to drive would “provoke a surge in prostitution, pornography, homosexuality and divorce.” Within 10 years of the ban being lifted, it claimed, there would be “no more virgins” in the Islamic nation.
Women who disobeyed the rule faced public lashings, jail and ostracism.
And indeed, a few women were discovered driving. It was a kind of campaign they started to let the public in on the secret and get the rules changed. They could find no reason why Saudi Arabia should be the only country in the world to ban women drivers.
One of the campaigners got herself arrested, but a lot of international publicity for the “driving while woman” campaign got her freed. No lashes this time.
No change in the rules either.
But not to worry. A Saudi cleric and consultant to the Royal family came up with a solution. The L.A. Times reported that he issued a fatwa, or Islamic ruling, calling on women to give their breast milk to their male colleagues or men they come into regular contact with so as to avoid illicit mixing between the sexes. That would give men and women a maternal connection, thus circumventing the prohibition on unrelated men and women mingling.
But the Saudi women campaigners took the fatwa a step further. They say if they're not granted the right to drive, they will breastfeed their drivers to establish a symbolic maternal bond.
"Is this is all that is left to us to do: to give our breasts to the foreign drivers?" a Saudi woman named Fatima Shammary was quoted as saying by Gulf News.
The drivers would no doubt enjoy this new ritual and – who knows? – the gals might even let the guys take the wheel.
Friday, December 02, 2011
“This is Where I’m Going to be When I Die,”say Prisoners sentenced for Juvenile Crimes
By William Fisher
Amnesty International is calling on the US justice system to stop sentencing young men and women to “life in prison without the possibility of release” for crimes they committed when were under 18 years old. More than 2,500 prisoners are currently serving such sentences in US prisons today.
In a new report, “'This is where I’m going to be when I die': Children facing life imprisonment without the possibility of release in the United States,” Amnesty charges that children as young as 11 at the time of the crime have faced life imprisonment without parole in the United States – the only country in the world to impose this sentence on children.
The report says, "Sentencing children to die in prison flouts a principle of international human rights law recognized and respected across the world, except by the USA. No other country is currently known to impose life imprisonment” without the possibility of parole for crimes, however serious, committed when they were children.
"In the United States, people under 18 cannot vote, buy alcohol or lottery tickets or consent to most forms of medical treatment, but they can be sentenced to die in prison for their actions. This needs to change,” says Natacha Mension, U. S. campaigner at Amnesty International (AI).
In the United States, life without parole can be imposed on juvenile offenders as a mandatory punishment – without consideration of mitigating factors such as history of abuse or trauma, degree of involvement in the crime, mental health status, or amenability to rehabilitation.
"We are not excusing crimes committed by children or minimizing their consequences, but the simple reality is that these sentences ignore the special potential for rehabilitation and change that young offenders have," said Mension.
In May 2010, the U.S. Supreme Court said life without parole is "an especially harsh punishment for a juvenile," as the young offender will serve, on average, more years and a greater percentage of his life in prison than an older offender. "A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only," the Court said.
Eighteen months after prohibiting this sentence for non-homicide crimes committed by under-18-year-olds, on November 8, 2011, the Supreme Court agreed to consider this issue in relation to crimes involving murder. It will not issue a decision until the second quarter of 2012 at the earliest.
The U.N. Convention on the Rights of the Child, which entered into force more than two decades ago, expressly prohibits the imposition of life imprisonment without the possibility of release for offenses, however serious, committed by people under 18 years old. All countries except the United States and Somalia have ratified the Convention.
"It is long past time for the United States to ratify the Convention without reservations or other limiting conditions and to fully implement its prohibition on the use of life imprisonment without release against children, including in relation to the cases of those already sentenced," said Mension.
But the International Covenant on Civil and Political Rights (ICCPR), which the USA did ratify in 1992, acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of procedures that take account of their age and facilitate their rehabilitation
The report says this international prohibition “does not stem from any inclination to excuse crimes committed by children or to minimize the consequences of such crimes for the victims and their families. It stems, rather, from recognition that children, who are still developing, are not fully mature, and hence not fully responsible for their actions.”
These "offenders have a special potential for rehabilitation and change. It is not that young people should not be held accountable for their actions. It is that this accountability must be achieved in ways that reflect the offender’s young age and his or her is utterly incompatible with basic principles of juvenile justice."
Amnesty International’s 34-page report illustrates the issue through the stories of Christi Cheramie, Jacqueline Montanez and David Young.
On November 30, Christi Cheramie, who is serving life without parole in Louisiana, will submit an application for executive clemency with the state Board of Pardons. Christi was sentenced to life in prison without the possibility of release in 1994, when she was 16 years old for the killing of her 18-year-old fiancé’s great aunt.
She pleaded guilty just before her trial in adult court began, fearing she could be sentenced to death if the trial went ahead. Her guilty plea prevents her from directly appealing her conviction or sentence.
A psychiatrist who saw Christi prior to her trial said that she was a "depressed, dependent, and insecure" 16-year-old who "seems to have been fearful of crossing" her fiancé, who she maintains committed the crime. Christi’s childhood was marked by sexual abuse. At the age of 13, she was hospitalized in a psychiatric clinic after trying to commit suicide on at least two occasions.
After spending half of her life in prison, Christi believes she has changed in many ways. She has obtained a high school equivalency diploma, a degree in agricultural studies, and teaches a number of classes at the prison. A warden has stated that she is "worthy of a second chance."
A clemency campaign is also pending for a second person whose case is profiled in AI’s report. Jacqueline Montanez is the only woman in Illinois serving a sentence of life imprisonment without the possibility of parole for a crime committed as a child. A victim of child abuse, Jacqueline began abusing drugs and alcohol at the age of nine. Jacqueline’s abuser was her step-father, a gang leader, who also involved her in the drug trade as a very young child and groomed her to be his “little soldier.” After running away from home and joining a rival gang, she and two older women shot and killed two adult male members of her step-father’s gang.
Because she was 15 at the time of the crime and charged with first degree murder, she was automatically tried in adult criminal court. This denied the court system the opportunity of conducting a transfer hearing to determine whether her case ought to have been tried in juvenile court where factors such as her young age, home environment or amenability to rehabilitation would have been considered. Jacqueline was also automatically sentenced to life without parole due to her conviction; the sentencing court had no discretion to consider her history, her age, the circumstances of the offense or her potential for rehabilitation.
Now 35 years old, she expresses deep remorse for her actions and believes that she has grown into a very different person. She has obtained a high school equivalency diploma and has become a certified trainer of service dogs for disabled people. She grieves for her victims and the pain that their families have suffered.
In Illinois, 80 percent of children in prison for life without parole received mandatory sentences; about 82 percent are prisoners of color. That number is even higher in Cook County, where the Montanez case originated. These findings were published by the Illinois Coalition on the Fair Sentencing of Children in its 2008 report, “Categorically Less Culpable, Children Sentenced to Life Without Parole in Illinois.” http://www.law.northwestern.edu/cfjc/jlwop/documents/JLWOP_Report.pdf
Jacqueline’s petition for executive clemency will be submitted to the Illinois governor and the Prisoner Review Board in January 2012.
David Young is one of two teenagers arrested and charged for the murder of Charles Welch in 1997. He was automatically charged in adult criminal court as required by North Carolina law for any criminal offense committed by anyone age 16 or older. Young’s co-defendant, who shot the victim, pleaded guilty to second-degree murder and was sentenced to 19 to 23 years in prison. David was convicted of first-degree felony murder and was sentenced to life without parole.
Young grew up in a hostile community environment where his parents abused drugs and his stepfather physically abused him and his mother. Now 32 years old, Young obtained his high school equivalency diploma and is in solitary confinement after being stabbed by two prisoners.
Amnesty International is calling on the US justice system to stop sentencing young men and women to “life in prison without the possibility of release” for crimes they committed when were under 18 years old. More than 2,500 prisoners are currently serving such sentences in US prisons today.
In a new report, “'This is where I’m going to be when I die': Children facing life imprisonment without the possibility of release in the United States,” Amnesty charges that children as young as 11 at the time of the crime have faced life imprisonment without parole in the United States – the only country in the world to impose this sentence on children.
The report says, "Sentencing children to die in prison flouts a principle of international human rights law recognized and respected across the world, except by the USA. No other country is currently known to impose life imprisonment” without the possibility of parole for crimes, however serious, committed when they were children.
"In the United States, people under 18 cannot vote, buy alcohol or lottery tickets or consent to most forms of medical treatment, but they can be sentenced to die in prison for their actions. This needs to change,” says Natacha Mension, U. S. campaigner at Amnesty International (AI).
In the United States, life without parole can be imposed on juvenile offenders as a mandatory punishment – without consideration of mitigating factors such as history of abuse or trauma, degree of involvement in the crime, mental health status, or amenability to rehabilitation.
"We are not excusing crimes committed by children or minimizing their consequences, but the simple reality is that these sentences ignore the special potential for rehabilitation and change that young offenders have," said Mension.
In May 2010, the U.S. Supreme Court said life without parole is "an especially harsh punishment for a juvenile," as the young offender will serve, on average, more years and a greater percentage of his life in prison than an older offender. "A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only," the Court said.
Eighteen months after prohibiting this sentence for non-homicide crimes committed by under-18-year-olds, on November 8, 2011, the Supreme Court agreed to consider this issue in relation to crimes involving murder. It will not issue a decision until the second quarter of 2012 at the earliest.
The U.N. Convention on the Rights of the Child, which entered into force more than two decades ago, expressly prohibits the imposition of life imprisonment without the possibility of release for offenses, however serious, committed by people under 18 years old. All countries except the United States and Somalia have ratified the Convention.
"It is long past time for the United States to ratify the Convention without reservations or other limiting conditions and to fully implement its prohibition on the use of life imprisonment without release against children, including in relation to the cases of those already sentenced," said Mension.
But the International Covenant on Civil and Political Rights (ICCPR), which the USA did ratify in 1992, acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of procedures that take account of their age and facilitate their rehabilitation
The report says this international prohibition “does not stem from any inclination to excuse crimes committed by children or to minimize the consequences of such crimes for the victims and their families. It stems, rather, from recognition that children, who are still developing, are not fully mature, and hence not fully responsible for their actions.”
These "offenders have a special potential for rehabilitation and change. It is not that young people should not be held accountable for their actions. It is that this accountability must be achieved in ways that reflect the offender’s young age and his or her is utterly incompatible with basic principles of juvenile justice."
Amnesty International’s 34-page report illustrates the issue through the stories of Christi Cheramie, Jacqueline Montanez and David Young.
On November 30, Christi Cheramie, who is serving life without parole in Louisiana, will submit an application for executive clemency with the state Board of Pardons. Christi was sentenced to life in prison without the possibility of release in 1994, when she was 16 years old for the killing of her 18-year-old fiancé’s great aunt.
She pleaded guilty just before her trial in adult court began, fearing she could be sentenced to death if the trial went ahead. Her guilty plea prevents her from directly appealing her conviction or sentence.
A psychiatrist who saw Christi prior to her trial said that she was a "depressed, dependent, and insecure" 16-year-old who "seems to have been fearful of crossing" her fiancé, who she maintains committed the crime. Christi’s childhood was marked by sexual abuse. At the age of 13, she was hospitalized in a psychiatric clinic after trying to commit suicide on at least two occasions.
After spending half of her life in prison, Christi believes she has changed in many ways. She has obtained a high school equivalency diploma, a degree in agricultural studies, and teaches a number of classes at the prison. A warden has stated that she is "worthy of a second chance."
A clemency campaign is also pending for a second person whose case is profiled in AI’s report. Jacqueline Montanez is the only woman in Illinois serving a sentence of life imprisonment without the possibility of parole for a crime committed as a child. A victim of child abuse, Jacqueline began abusing drugs and alcohol at the age of nine. Jacqueline’s abuser was her step-father, a gang leader, who also involved her in the drug trade as a very young child and groomed her to be his “little soldier.” After running away from home and joining a rival gang, she and two older women shot and killed two adult male members of her step-father’s gang.
Because she was 15 at the time of the crime and charged with first degree murder, she was automatically tried in adult criminal court. This denied the court system the opportunity of conducting a transfer hearing to determine whether her case ought to have been tried in juvenile court where factors such as her young age, home environment or amenability to rehabilitation would have been considered. Jacqueline was also automatically sentenced to life without parole due to her conviction; the sentencing court had no discretion to consider her history, her age, the circumstances of the offense or her potential for rehabilitation.
Now 35 years old, she expresses deep remorse for her actions and believes that she has grown into a very different person. She has obtained a high school equivalency diploma and has become a certified trainer of service dogs for disabled people. She grieves for her victims and the pain that their families have suffered.
In Illinois, 80 percent of children in prison for life without parole received mandatory sentences; about 82 percent are prisoners of color. That number is even higher in Cook County, where the Montanez case originated. These findings were published by the Illinois Coalition on the Fair Sentencing of Children in its 2008 report, “Categorically Less Culpable, Children Sentenced to Life Without Parole in Illinois.” http://www.law.northwestern.edu/cfjc/jlwop/documents/JLWOP_Report.pdf
Jacqueline’s petition for executive clemency will be submitted to the Illinois governor and the Prisoner Review Board in January 2012.
David Young is one of two teenagers arrested and charged for the murder of Charles Welch in 1997. He was automatically charged in adult criminal court as required by North Carolina law for any criminal offense committed by anyone age 16 or older. Young’s co-defendant, who shot the victim, pleaded guilty to second-degree murder and was sentenced to 19 to 23 years in prison. David was convicted of first-degree felony murder and was sentenced to life without parole.
Young grew up in a hostile community environment where his parents abused drugs and his stepfather physically abused him and his mother. Now 32 years old, Young obtained his high school equivalency diploma and is in solitary confinement after being stabbed by two prisoners.
Wednesday, November 30, 2011
Human Rights Group Says Army Rulers “Worse Than Mubarak”
By William Fisher
Nassary Hassan is an Egyptian citizen living in Germany. Last March, he was in Egypt and, during a visit to Hurghada – a resort town on the Red Sea -- he saw piles of garbage in the streets. He carried a banner reading, “The people want to clean Hurghada,” heading towards the City Council. He was asked to leave by one of the military police officers.
When he refused, he was beaten and verbally abused by him and his soldiers, until he lost consciousness and was taken to the hospital. Moreover, after he awakened, he requested a doctor to write a report about his injuries; but unfortunately, the doctor refused after he knew that he was assaulted by the military police.
Later on, Hassan was able to obtain the Military Governor’s phone number, whom he called and told him about what happened. However, the Military Governor told him to go back to the City Council and meet him at his office there, and when he did, he found a large number of police officers waiting for him, beating and verbally abusing him.
They took him to the military prosecution location that maltreated him and participated in fabricating charges of libel and slander of Armed Forces and a military officer. He was referred to the Military Court at Qena; which sentenced him to 3 years imprisonment and a 5 thousand LE fine on 24 March. However, in May, an appeal was filed against the ruling, and after consideration of the appeal, the court decided to alleviate the sentence to 6 months imprisonment, a fine of 5000 LE.
An appeal was submitted by the Arabic Network For Human Rights Information (ANHRI) defense team. It was successful in being able to alleviate the unjust sentence of imprisonment and the fine issued by the exceptional Military Tribunal against Hassan.
ANHRI claims the charges were fabricated by military police officers and the military governor of Hurghada, as a result of [Hasan’s] “civilized and peaceful way of expressing his views.”
The sentence by the military court in Qena was amended to be six months imprisonment instead of three years, and a fine of 5000 Egyptian pounds. Since last March, he spent more than 8 months in prison -- more than the allotted prison sentence.
Hasan was finally released Nov. 30.
ANHRI says this is one of thousands of cases where Egypt’s “temporary” rulers, the Supreme Council of the Armed Forces (SCAF) have performed “even worse than Mubarak,” referring to the country’s dictator of thirty years who was overthrown February 11 in a people’s revolution that took only 18 days.
There are some 12,000 men and women in Egyptian military prisons, sent there after perfunctory military trials, some of which took less than five minutes. Their crimes were largely peacefully demonstrating, carrying placards listing their demands, and expressing themselves through blogs and social networks.
The “no more military trials” movement has become a powerful rallying cry against the army, which is said to be considering how it can free these prisoners without losing face completely.
Meantime, the Associated Press reports that Amnesty International says Egypt's military rulers have "completely failed" to fulfill their promises to protect human rights.
In a report released Tuesday, Amnesty accuses Egypt's Supreme Council of the Armed Forces of adopting oppressive tactics used by the ousted regime of Hosni Mubarak, including targeting critics, banning critical media coverage and torturing protesters.
The military council took control after Mubarak's fall in February.
The report comes after three days of clashes between security forces and
protesters calling for a transition to civilian rule. More than 40 people have
been killed and thousands injured.
The group called on the military council to repeal the Mubarak-era "emergency laws," and protect human rights.
Egyptian human rights organizations claim to refer interior leadership and military police to criminal trials. Five Egyptian human rights organizations said that the brutal attacks, by security forces of the Ministry of Interior and the military police under the Supreme Council of the Armed Forces, over the past three days against the protestors in Cairo, Alexandria , Suez, Ismailia, Assiut and other few cities , are criminal offences. They demanded that perpetrators be referred for criminal prosecution.
The Egyptian Initiative for Personal Rights, the Hisham Mubarak Center for Law and the Cairo Institute for Human Rights Studies, the Nadim Center for Rehabilitation of Victims of violence and ANHRI , pledged to continue working on listing the names of civilian and military officials involved in the killing of demonstrators or bursting their eyes or breaking their bones , according to what was followed up or documented by them or media over the past few days.
Moreover, the organizations stated that the list of officials being prosecuted has so far skipped a number of high ranking military men, mostly from the Interior Ministry. The dreaded security police operate under the authority of the Interior Ministry, which has a long and bloody history of repression, torture and death in detention.
In recent days, it has become clear that the SCAF is not in control of the Interior Ministry’s police forces. Last week, with protestors closing in on the Ministry headquarters, and armed security forces standing on the front steps
with their rifles pointed at the protestors, SCAF actually had to ship in large concrete blast walls and lay them down the middle of the street to keep police and protestors apart..
The Human Rights groups condemned the “false statements made by military officials to the media. These claimed that the role of the military police has been limited to securing the Ministry of Interior building without exposure to the demonstrators. They also affirmed that their delegates had seen military police forces storming Tahrir Square at about five o’clock on November 20th brutally assaulting the demonstrators with batons.
“That was before setting protestors’ tents and belongings and a number of motorcycles, on fire. Moreover, the video clips broadcast from the sites of the newspapers and television stations Masry Al-Youm and Al Jazeera Mubasher MISR, show the attack of members of the military and civilian police on unarmed demonstrators in three sides to Tahrir Square, using tanks, tear gas and batons. It shows also the demonstrators being hit several times on the head with sticks and military forces feet after falling on the ground and stopped moving.”
In the two most recent days of demonstrations, there have been 17 attacks against journalists, including shooting, arrests and beatings while in detention by unidentified security agents. The Committee to Protect Journalists condemned these attacks, demanding the Egyptian authorities to end them immediately.
“Journalists should be allowed to do their job without being attacked. Moreover, there is an obligation on prosecutors to investigate allegations of abuses committed by the army and police against journalists” said Mohamed Abdel Dayem, program coordinator for the Middle East and North Africa of the committee to protect journalists.
Since Saturday, Tahrir Square in Cairo was occupied by protestors, demanding an end to military rule. The security Forces fired live and rubber bullets at them threw grenades, tear gas and attacked dozens of people according to news report. By Monday, several media reported the number of people killed was at least 33 people in addition to thousands of people injured as a result of the clashes.
The IPS news service, reporting from Cairo, quotes rights activist Sherif Azer, as saying, “The military council is dealing with the Egyptian people as if it is running a military camp. It took decades for enough anger to build up against Mubarak for a revolution; it has only taken nine months to have another."
Nassary Hassan is an Egyptian citizen living in Germany. Last March, he was in Egypt and, during a visit to Hurghada – a resort town on the Red Sea -- he saw piles of garbage in the streets. He carried a banner reading, “The people want to clean Hurghada,” heading towards the City Council. He was asked to leave by one of the military police officers.
When he refused, he was beaten and verbally abused by him and his soldiers, until he lost consciousness and was taken to the hospital. Moreover, after he awakened, he requested a doctor to write a report about his injuries; but unfortunately, the doctor refused after he knew that he was assaulted by the military police.
Later on, Hassan was able to obtain the Military Governor’s phone number, whom he called and told him about what happened. However, the Military Governor told him to go back to the City Council and meet him at his office there, and when he did, he found a large number of police officers waiting for him, beating and verbally abusing him.
They took him to the military prosecution location that maltreated him and participated in fabricating charges of libel and slander of Armed Forces and a military officer. He was referred to the Military Court at Qena; which sentenced him to 3 years imprisonment and a 5 thousand LE fine on 24 March. However, in May, an appeal was filed against the ruling, and after consideration of the appeal, the court decided to alleviate the sentence to 6 months imprisonment, a fine of 5000 LE.
An appeal was submitted by the Arabic Network For Human Rights Information (ANHRI) defense team. It was successful in being able to alleviate the unjust sentence of imprisonment and the fine issued by the exceptional Military Tribunal against Hassan.
ANHRI claims the charges were fabricated by military police officers and the military governor of Hurghada, as a result of [Hasan’s] “civilized and peaceful way of expressing his views.”
The sentence by the military court in Qena was amended to be six months imprisonment instead of three years, and a fine of 5000 Egyptian pounds. Since last March, he spent more than 8 months in prison -- more than the allotted prison sentence.
Hasan was finally released Nov. 30.
ANHRI says this is one of thousands of cases where Egypt’s “temporary” rulers, the Supreme Council of the Armed Forces (SCAF) have performed “even worse than Mubarak,” referring to the country’s dictator of thirty years who was overthrown February 11 in a people’s revolution that took only 18 days.
There are some 12,000 men and women in Egyptian military prisons, sent there after perfunctory military trials, some of which took less than five minutes. Their crimes were largely peacefully demonstrating, carrying placards listing their demands, and expressing themselves through blogs and social networks.
The “no more military trials” movement has become a powerful rallying cry against the army, which is said to be considering how it can free these prisoners without losing face completely.
Meantime, the Associated Press reports that Amnesty International says Egypt's military rulers have "completely failed" to fulfill their promises to protect human rights.
In a report released Tuesday, Amnesty accuses Egypt's Supreme Council of the Armed Forces of adopting oppressive tactics used by the ousted regime of Hosni Mubarak, including targeting critics, banning critical media coverage and torturing protesters.
The military council took control after Mubarak's fall in February.
The report comes after three days of clashes between security forces and
protesters calling for a transition to civilian rule. More than 40 people have
been killed and thousands injured.
The group called on the military council to repeal the Mubarak-era "emergency laws," and protect human rights.
Egyptian human rights organizations claim to refer interior leadership and military police to criminal trials. Five Egyptian human rights organizations said that the brutal attacks, by security forces of the Ministry of Interior and the military police under the Supreme Council of the Armed Forces, over the past three days against the protestors in Cairo, Alexandria , Suez, Ismailia, Assiut and other few cities , are criminal offences. They demanded that perpetrators be referred for criminal prosecution.
The Egyptian Initiative for Personal Rights, the Hisham Mubarak Center for Law and the Cairo Institute for Human Rights Studies, the Nadim Center for Rehabilitation of Victims of violence and ANHRI , pledged to continue working on listing the names of civilian and military officials involved in the killing of demonstrators or bursting their eyes or breaking their bones , according to what was followed up or documented by them or media over the past few days.
Moreover, the organizations stated that the list of officials being prosecuted has so far skipped a number of high ranking military men, mostly from the Interior Ministry. The dreaded security police operate under the authority of the Interior Ministry, which has a long and bloody history of repression, torture and death in detention.
In recent days, it has become clear that the SCAF is not in control of the Interior Ministry’s police forces. Last week, with protestors closing in on the Ministry headquarters, and armed security forces standing on the front steps
with their rifles pointed at the protestors, SCAF actually had to ship in large concrete blast walls and lay them down the middle of the street to keep police and protestors apart..
The Human Rights groups condemned the “false statements made by military officials to the media. These claimed that the role of the military police has been limited to securing the Ministry of Interior building without exposure to the demonstrators. They also affirmed that their delegates had seen military police forces storming Tahrir Square at about five o’clock on November 20th brutally assaulting the demonstrators with batons.
“That was before setting protestors’ tents and belongings and a number of motorcycles, on fire. Moreover, the video clips broadcast from the sites of the newspapers and television stations Masry Al-Youm and Al Jazeera Mubasher MISR, show the attack of members of the military and civilian police on unarmed demonstrators in three sides to Tahrir Square, using tanks, tear gas and batons. It shows also the demonstrators being hit several times on the head with sticks and military forces feet after falling on the ground and stopped moving.”
In the two most recent days of demonstrations, there have been 17 attacks against journalists, including shooting, arrests and beatings while in detention by unidentified security agents. The Committee to Protect Journalists condemned these attacks, demanding the Egyptian authorities to end them immediately.
“Journalists should be allowed to do their job without being attacked. Moreover, there is an obligation on prosecutors to investigate allegations of abuses committed by the army and police against journalists” said Mohamed Abdel Dayem, program coordinator for the Middle East and North Africa of the committee to protect journalists.
Since Saturday, Tahrir Square in Cairo was occupied by protestors, demanding an end to military rule. The security Forces fired live and rubber bullets at them threw grenades, tear gas and attacked dozens of people according to news report. By Monday, several media reported the number of people killed was at least 33 people in addition to thousands of people injured as a result of the clashes.
The IPS news service, reporting from Cairo, quotes rights activist Sherif Azer, as saying, “The military council is dealing with the Egyptian people as if it is running a military camp. It took decades for enough anger to build up against Mubarak for a revolution; it has only taken nine months to have another."
GITMO Forever? Looks That Way!
By William Fisher
The Congress that was so fearful that trying accused terrorists in civilian courts would hasten Armageddon is now proposing to go one mindless step further. It may soon vote to make indefinite detention and unfair military trials permanent.
Earlier this week, the Senate voted to increase the military’s role in the detention of those suspected of being members of Al Qaeda or its allies – even if the arrests are made in the U.S.
The Senate defeated, 61-37, an effort to strip a major military bill -- National Defense Authorization Act -- of a clutch of controversial provisions – for example, one requiring the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. And a related provision that would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens.
“These provisions stretch the law of war beyond all recognition, and threaten to dramatically undermine national security by taking civilian tools of justice off the table when dealing with suspected terrorists,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “Intelligence and military leaders have overwhelmingly condemned these provisions — they will make us less safe, imposing a blunt one-size-fits-all approach in an area where the executive branch most requires flexibility to do its job.”
In an editorial, the Washington Post noted that Armed Services Committee Chairman Carl Levin (D-Mich.) praised the provisions as “an improvement over the originals, which were decried by the Obama administration and even former George W. Bush Defense Department officials as too heavyhanded.”
But the Post said, “The new proposals are as problematic as the old and should be scrapped.”
It continued: “Since President Obama took office, some lawmakers, including Democrats, have tried to force him to adopt their military-centric approach to fighting terrorism. The original Senate plan permanently banned use of defense funds to build or modify U.S. facilities to hold Guantanamo Bay detainees; ordered
military detention for terrorism suspects, including U.S. citizens, captured on
U.S. soil; and made it very difficult to transfer detainees deemed fit for
release to their homes or third countries. This approach, we have argued,
unacceptably limited the president’s flexibility to thwart attacks and react to
terrorism threats.”
Amnesty International (AI), in a statement, said, “We are facing one of the biggest crises at Guantanamo since “war on terror” detainees were first transferred there nearly 10 years ago: Congress may soon vote to make indefinite detention and unfair trials permanent. The 89 people there who are approved for release could remain forever. The 46 slated for detention without charge could be denied due process forever. The 36 referred for prosecution could only be tried in unfair kangaroo courts Military Commissions). Guantanamo would be permanent.”
The group urged its members to let their lawmakers know they ”oppose any legislation that would further entrench indefinite detention, denial of due process and military commissions—at Guantanamo, Bagram or any other US facilities—in US law and practice.”
The organization added, “Indefinite detention, denial of due process and the unfair military commissions are violations of human rights and contravene international law. There is a better way to ensure justice and security for all of us: either charge and fairly try Guantanamo detainees in US federal court, or release them immediately to countries where their human rights will be respected. The United States government should be protecting human rights, not violating them.”
When Barack Obama took office, he pledged on his very first day in the White House that he would close Guantanamo. Part of his plan was to try prisoners before our regular Article 111 civilian courts, where hundreds of accused terrorists had already been tried over a number of years.
But Congress had collective apoplexy. It hastily passed a law denying the president funds to move prisoners from Guantanamo to Federal Court in lower Manhattan. Lawmakers, including some of Congress’ leading so-called liberals, raved and ranted themselves into a frenzy. They went all-out stoking the flames of fear. A terror trial in lower Manhattan would provide terrorists with a readymade target to attack. Traffic would be tied up for days. Business would suffer. And if the defendant, heaven forefend, was acquitted, he would be “walking up and down Main Street and having coffee in the local diner.”
What? Not running for the School Board?
The first prospective trial was to have been KSM (Khalid Sheik Mohammed), the alleged mastermind of 9/11. But that never happened. And now it’s never going to happen. It’s unlikely that KSM will ever appear before a Military Commission. So he will be at GITMO until he dies. As a consequence, 45 other people will have been denied due process to petition for their release. And 89 prisoners scheduled to be released, won’t be.
And the world will continue to wonder how and why this happened in the country the world used to look to as safe harbor for civil liberties and human rights.
The Congress that was so fearful that trying accused terrorists in civilian courts would hasten Armageddon is now proposing to go one mindless step further. It may soon vote to make indefinite detention and unfair military trials permanent.
Earlier this week, the Senate voted to increase the military’s role in the detention of those suspected of being members of Al Qaeda or its allies – even if the arrests are made in the U.S.
The Senate defeated, 61-37, an effort to strip a major military bill -- National Defense Authorization Act -- of a clutch of controversial provisions – for example, one requiring the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. And a related provision that would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens.
“These provisions stretch the law of war beyond all recognition, and threaten to dramatically undermine national security by taking civilian tools of justice off the table when dealing with suspected terrorists,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “Intelligence and military leaders have overwhelmingly condemned these provisions — they will make us less safe, imposing a blunt one-size-fits-all approach in an area where the executive branch most requires flexibility to do its job.”
In an editorial, the Washington Post noted that Armed Services Committee Chairman Carl Levin (D-Mich.) praised the provisions as “an improvement over the originals, which were decried by the Obama administration and even former George W. Bush Defense Department officials as too heavyhanded.”
But the Post said, “The new proposals are as problematic as the old and should be scrapped.”
It continued: “Since President Obama took office, some lawmakers, including Democrats, have tried to force him to adopt their military-centric approach to fighting terrorism. The original Senate plan permanently banned use of defense funds to build or modify U.S. facilities to hold Guantanamo Bay detainees; ordered
military detention for terrorism suspects, including U.S. citizens, captured on
U.S. soil; and made it very difficult to transfer detainees deemed fit for
release to their homes or third countries. This approach, we have argued,
unacceptably limited the president’s flexibility to thwart attacks and react to
terrorism threats.”
Amnesty International (AI), in a statement, said, “We are facing one of the biggest crises at Guantanamo since “war on terror” detainees were first transferred there nearly 10 years ago: Congress may soon vote to make indefinite detention and unfair trials permanent. The 89 people there who are approved for release could remain forever. The 46 slated for detention without charge could be denied due process forever. The 36 referred for prosecution could only be tried in unfair kangaroo courts Military Commissions). Guantanamo would be permanent.”
The group urged its members to let their lawmakers know they ”oppose any legislation that would further entrench indefinite detention, denial of due process and military commissions—at Guantanamo, Bagram or any other US facilities—in US law and practice.”
The organization added, “Indefinite detention, denial of due process and the unfair military commissions are violations of human rights and contravene international law. There is a better way to ensure justice and security for all of us: either charge and fairly try Guantanamo detainees in US federal court, or release them immediately to countries where their human rights will be respected. The United States government should be protecting human rights, not violating them.”
When Barack Obama took office, he pledged on his very first day in the White House that he would close Guantanamo. Part of his plan was to try prisoners before our regular Article 111 civilian courts, where hundreds of accused terrorists had already been tried over a number of years.
But Congress had collective apoplexy. It hastily passed a law denying the president funds to move prisoners from Guantanamo to Federal Court in lower Manhattan. Lawmakers, including some of Congress’ leading so-called liberals, raved and ranted themselves into a frenzy. They went all-out stoking the flames of fear. A terror trial in lower Manhattan would provide terrorists with a readymade target to attack. Traffic would be tied up for days. Business would suffer. And if the defendant, heaven forefend, was acquitted, he would be “walking up and down Main Street and having coffee in the local diner.”
What? Not running for the School Board?
The first prospective trial was to have been KSM (Khalid Sheik Mohammed), the alleged mastermind of 9/11. But that never happened. And now it’s never going to happen. It’s unlikely that KSM will ever appear before a Military Commission. So he will be at GITMO until he dies. As a consequence, 45 other people will have been denied due process to petition for their release. And 89 prisoners scheduled to be released, won’t be.
And the world will continue to wonder how and why this happened in the country the world used to look to as safe harbor for civil liberties and human rights.
Tuesday, November 29, 2011
The Part of Our Justice System No One Wants You to Know About
By William Fisher
Remember Mike Nifong? Sure. He’s the sleazebag former District Attorney in the Duke University lacrosse team’s stripper rape scandal back in 2006. He made himself a short-lived hero by agreeing to prosecute members of the Duke Lacrosse team for raping an Africa-American stripper and dancer the team had hired for a party.
But Nifong, hell bent on winning reelection, forgot that he was an officer of the Court. He went public with a series of accusations that later turned out to be untrue; he exaggerated and intensified racial tensions; he unduly influenced the Durham police investigation; he tried to manipulate potential witnesses; he refused to hear exculpatory evidence prior to indictment; that regulations on the conduct of an identification exercise were breached by failure to include "dummy" photographs; that he had never spoken directly to the alleged victim about the accusations; and that he made misleadingly incomplete presentations of various aspects of the evidence in the case (including DNA results).
He was dismissed from his job and later disbarred
Or how about federal prosecutor William Welch, and his deputy chief, Brenda Morris, who convicted Senator Ted Stevens -- and helped their own cause by withholding evidence from the defense that could have helped the defendant.
Or there’s Richard Convertino, the lead prosecutor in the so-called Detroit Sleeper Cell terrorism case. He was removed from the case on suspicion that he allegedly failed to turn over photographic evidence to the defense and obtained evidence from witnesses, leading the judge and other attorneys to believe the photographs did not exist.
These acts and alleged acts by prosecutors all qualify as prosecutorial misconduct. There are hundreds of such cases in our justice system every year. Very few of them ever get such high visibility. In fact, most abuses of this kind probably go unnoticed and unreported. In the three cases referenced above, only Nifong lost his law license. The others did not.
But, since 9/11, there has been another kind of misconduct growing. It usually takes place outside the courtroom and is a favorite of politicians of both parties, especially if they are running for reelection.
This is the phenomenon of politicians and others with private agendas calling press conferences to launch inflammatory – and usually false or grossly exaggerated – claims about the importance of a given case to the national security of the United States.
Examples are legion. When Jose Padilla was arrested for what the press told us was an attempt to explode a “dirty bomb” (a nuclear device) in the middle of New York City, then Attorney General John Ashcroft was in Moscow.
He immediately reorganized his day and hurriedly called a press conference where he trumpeted Padilla’s apprehension in what TIME called a “fear-inducing video hookup.”
Ashcroft was surely on a roll that day. But is was not long before it began to be clear that, to quote TIME again, “[Padilla] is not the deadly, skilled operative Attorney General John Ashcroft seemed to be describing when he announced Padilla's arrest… In fact, history may judge the Administration's legal treatment of Padilla—locking him up indefinitely with no plan to try him—as more alarming than Padilla himself.”
When Padilla was finally arraigned in Federal Court, the “dirty bomb” charge was nowhere to be found.
Then there was the prosecution of Dr. Rafil Dhafir, an oncologist from Manlius, NY, a community near Syracuse. Dhafir was arrested in February 2003 in a raid that drew nationwide media coverage. Long before his trial began, he was labeled “a terrorist” by then Attorney General Ashcroft and then New York Gov. George Pataki.
On the day of the arrest Ashcroft announced that “funders of terrorism” had been arrested. And just before Dhafir’s trial began in October 2004, Pataki described the case as a “money laundering case to help terrorist organizations … conduct horrible acts,” an announcement perfectly timed to reach potential jurors.
But no reference to terrorism or to Dhafir’s Muslim faith was permitted in court, and no terrorism charges were ever brought against him. His supporters claim he was “selectively prosecuted.”
Dhafir was convicted in February 2005 of 59 criminal counts, including money laundering, conspiracy to violate US sanctions against Iraq, misusing $2 million that donors contributed to his unlicensed charity, Help the Needy, spending $544,000 for his own purposes, defrauding Medicare out of $316,000, and evading $400,000 in federal income tax payments by writing off the illegal charity donations. No terrorism here.
Politicians outside the courtroom intentionally hyping the extreme dangers presented by defendants have become standard practice. This has occurred numerous times when it was clear that the alleged “terrorists” were pathetic down-and-outers who many believe had been entrapped by the FBI.
What politicians say at their press conferences is intended to achieve one objective only: to plant doubt in the minds of prospective jurors.
Independent activist Katherine Hughes adds that, “In Dr. Dhafir’s case, they also transformed his community image from a compassionate humanitarian into a crook and supporter of terrorists.”
And just a few days ago, we recall New York Mayor Mike Bloomberg convening a hastily organized press conference to announce the arrest of one Jose Pimentel.
Flanked by Police Commissioner Ray Kelly and Manhattan District Attorney Cyrus Vance, Bloomberg said:
“Yesterday afternoon, New York City police officers arrested a 27-year-old Al Qaeda sympathizer who was plotting to bomb police patrol cars and also postal facilities, as well as target members of our Armed Forces returning from abroad. Jose Pimentel of Washington Heights, which is in the northern end of Manhattan, faces terrorism-related charges….”
Bloomberg also got an opportunity to praise the work of New York’s Finest.
“The NYPD Intelligence Division did outstanding work in tracking this individual and containing the threat he posed to the city. The police constructed a duplicate of an explosive device that the suspect built, and then detonated it in a way that he intended to use his weapon. We wanted to show you a video about the resulting damage,” he said.
He went on: “The suspect was a so-called lone wolf, motivated by his own resentment of the presence of American troops in Iraq and Afghanistan, as well as inspired by Al Qaeda propaganda. He was not part of a larger conspiracy emanating from abroad. He represents exactly the kind of threat FBI Director Robert Mueller and his experts have warned about, as American military and intelligence agencies have eroded Al Qaeda's ability to launch large-scale attacks.
“This case is also reminiscent of another lone wolf plot in 2004 in which two New Yorkers angry over the treatment of prisoners in Iraq plotted to bomb the Herald Square subway station. Like the current case, the Herald Square plot was uncovered by the NYPD Intelligence Division.
“And as with still another case earlier this year in which a lone wolf plotted to attack a large synagogue, the NYPD teamed-up with the Manhattan District Attorney's office to prosecute Pimentel under State terrorism-related statutes.
“Whether launched by lone wolves, Al Qaeda, or Al Qaeda affiliates, there have been at least 13 previous terrorist plots since 9/11 targeting New York City. This would be the fourteenth.
“Because of such repeated threats, the NYPD remains focused on preventing another terrorist attack. We assign a thousand officers to counter-terrorism duties every single day. This is just another case where our precautions paid off."
Some journalists covering the story simply transcribed Bloomberg’s words. Others were suspicious. Did Bloomberg rush this arrest and press conference to divert attention away from the conflicts with the Occupy movement, whose members, as well as some journalists, had just been driven out of Liberty Square, and their tends and other equipment destroyed by police? And where was the FBI? The Bureau participates in almost all such events with the mayor and with less city lights. Soon we learned that the FBI was saying it would not have made this arrest.
That’s a big statement for that agency, which has been suspected by many of using paid informants to entrap gullible individuals, and get them involved in terror plots. However, many of these so-called plots look like children’s games. In others, the alleged perpetrators look so disheveled, bedraggled, disoriented, that they seem like the last people who would be capable of carrying out a terror plot.
In addition to trying to influence juries with incendiary and fear-provoking pronouncements, politicians and the law enforcement agencies they support employ a second technique – in some ways, worse than the false accusations.
This is the designation known as the “person of interest.” This insidious label has the capacity to put life on hold, to turn lives upside down, to bankrupt citizens unable to pay lawyers’ fees to try to prove their innocence.
Remember Richard Jewell? To refresh your memory, Jewell, 33, was working as a security guard at the 1996 Olympics in Atlanta. The Atlanta Police have received a message saying, "There is a bomb in Centennial Park. You have 30 minutes." Jewell was working in Centennial Park.
At 1:20 a.m., a pipe bomb exploded near a huge sound-and-light tower erected by AT&T, which had become a major attraction for visitors to Centennial Olympic Park. The blast killed two people and injured 111 others.
Richard Jewell was the hero of the incident. He was responsible for finding the backpack that had contained the bomb, and for getting people out of the immediate area, thus probably limiting further death and injury.
But four days after the bombing, news organizations reported that Jewell had become the main focus of their investigation as a potential suspect in the bombing. At the time, Jewell was unknown to authorities, and a lone wolf profile made sense to FBI investigators after being contacted by his former employer at Piedmont College.
Though he was never arrested or charged with any crime, Jewell was named as a "person of interest.” His home, where he lived with his mother, was searched and his background exhaustively investigated, all amid a media storm that had cameras following him to the grocery store. Eventually, Jewell was exonerated, and once again hailed as a hero. The media circus pursued Jewell everywhere for weeks, until Eric Rudolph pled guilty to carrying out the bombing attack at the Centennial Olympic Park, as well as three other attacks across the South.
After his exoneration, Jewell filed a series of lawsuits against the media outlets which he claimed had libeled him, primarily NBC News and The Atlanta Constitution, and insisted on a formal apology from them. Jewell's attorneys contend Piedmont College President Raymond Cleere called the FBI and spoke to the Atlanta newspapers, providing them with false information on Jewell and his employment there as a security guard. Jewell's lawsuit accused Cleere of describing Jewell as a "badge-wearing zealot" who "would write epic police reports for minor infractions." Eventually he received an apology from the FBI.
Toward the end of the incident, broadcast host Bill Press discussed Jewell on television. Turning to Larry Sabato, professor of government at the University of Virginia, a guest on the program, he commented, "He (Jewell) did a pretty good job of destroying his own reputation, first, didn't he, Larry?"
To which Sabato replied, "You know, Bill, that's a great example of what happens when some poor soul, and I'm going to assume he's innocent until it's proven otherwise, some poor soul wanders into the media spotlight, because that's what happens. I remember the fellow who deflected the gun from President Ford out in California in 1975 and he saved the president's life and within 48 hours, a newspaper had revealed to his family, who didn't know, that he was gay."
Unlike Jewell, Steven Hatfill was never seen as a hero. But, just as Jewell’s life had been turned upside down by law enforcement, Hatfill’s also became a living hell.
Steven Jay Hatfill, now 60, is an American physician, virologist and bio-weapons expert who underwent what was considered by many to be a trial by media with great toll on his personal and professional life. After eight months of pressure from the media and amateur detectives, the US Department of Justice identified the former government scientist as a "person of interest" in its investigation of the 2001 anthrax attacks. He was put under 24/7 surveillance.
FBI searches of his apartment in July and August 2002 were well-attended by journalists, many of whom had been pointing at Dr. Hatfill for months.
Dr. Hatfill later sued the government for ruining his reputation, a case that the government settled for US$5.8 million. He also filed lawsuits against several periodicals that had pointed to him as a figure warranting further investigation.
The situation became even more tragic when FBI and DOJ officials later blamed the anthrax deaths on another government scientist, Bruce Edwards Ivins, whom they concluded had acted alone. Ivins committed suicide. The case remains unsolved.
The abuses described here are miscarriages of justice, whether they occur in or outside a court. Politicians and law enforcement agencies depend on a supine press corps to circulate their stories all over the world in minutes. With the help of a media more skilled in stenography than in reporting, unsubstantiated rumors are printed and broadcast as facts. If further investigation is done by the media (which is rare) corrections often appear, if at all, long after the event. Yet they can rob you of your reputation before you have a chance to respond.
To be the target of a media blitz is tantamount to being found guilty of something. When a politician or an overly zealous prosecutor tags you as a dangerous terrorist before you ever go to court, you might as well not go to court. Such is the fear of terror that has pervaded our country since 9/11 that Congress, in its infinite wisdom, has even successfully dictated where and how to try those accused of terrorism.
Is there anything ordinary citizens can do about these kinds of events? Unfortunately, not much. We should be urging our political leaders to choose their words more carefully and to show more respect for the rule of law. We should reign in over-zealous prosecutors who see their mission in life as collecting scalps. And we should be campaigning in Congress for substantial revisions in the “material support” law.
Politicians, judges, prosecutors and lawmakers need to demonstrate that they know the difference between governance and show business!
Ordinary citizens can’t censor what politicians say. And Judges could do a far better job of censoring what lawyers say (or fail to say) in court.
Perhaps the simplest target for irate citizens is the “person of interest” designation. The phrase has no legal meaning; it is administrative verbiage that law enforcement uses to show the public it’s working hard to find to find the guilty.
That phrase should be expunged from the Justice Department’s lexicon.
And that’s well within the President’s prerogatives.
.
Remember Mike Nifong? Sure. He’s the sleazebag former District Attorney in the Duke University lacrosse team’s stripper rape scandal back in 2006. He made himself a short-lived hero by agreeing to prosecute members of the Duke Lacrosse team for raping an Africa-American stripper and dancer the team had hired for a party.
But Nifong, hell bent on winning reelection, forgot that he was an officer of the Court. He went public with a series of accusations that later turned out to be untrue; he exaggerated and intensified racial tensions; he unduly influenced the Durham police investigation; he tried to manipulate potential witnesses; he refused to hear exculpatory evidence prior to indictment; that regulations on the conduct of an identification exercise were breached by failure to include "dummy" photographs; that he had never spoken directly to the alleged victim about the accusations; and that he made misleadingly incomplete presentations of various aspects of the evidence in the case (including DNA results).
He was dismissed from his job and later disbarred
Or how about federal prosecutor William Welch, and his deputy chief, Brenda Morris, who convicted Senator Ted Stevens -- and helped their own cause by withholding evidence from the defense that could have helped the defendant.
Or there’s Richard Convertino, the lead prosecutor in the so-called Detroit Sleeper Cell terrorism case. He was removed from the case on suspicion that he allegedly failed to turn over photographic evidence to the defense and obtained evidence from witnesses, leading the judge and other attorneys to believe the photographs did not exist.
These acts and alleged acts by prosecutors all qualify as prosecutorial misconduct. There are hundreds of such cases in our justice system every year. Very few of them ever get such high visibility. In fact, most abuses of this kind probably go unnoticed and unreported. In the three cases referenced above, only Nifong lost his law license. The others did not.
But, since 9/11, there has been another kind of misconduct growing. It usually takes place outside the courtroom and is a favorite of politicians of both parties, especially if they are running for reelection.
This is the phenomenon of politicians and others with private agendas calling press conferences to launch inflammatory – and usually false or grossly exaggerated – claims about the importance of a given case to the national security of the United States.
Examples are legion. When Jose Padilla was arrested for what the press told us was an attempt to explode a “dirty bomb” (a nuclear device) in the middle of New York City, then Attorney General John Ashcroft was in Moscow.
He immediately reorganized his day and hurriedly called a press conference where he trumpeted Padilla’s apprehension in what TIME called a “fear-inducing video hookup.”
Ashcroft was surely on a roll that day. But is was not long before it began to be clear that, to quote TIME again, “[Padilla] is not the deadly, skilled operative Attorney General John Ashcroft seemed to be describing when he announced Padilla's arrest… In fact, history may judge the Administration's legal treatment of Padilla—locking him up indefinitely with no plan to try him—as more alarming than Padilla himself.”
When Padilla was finally arraigned in Federal Court, the “dirty bomb” charge was nowhere to be found.
Then there was the prosecution of Dr. Rafil Dhafir, an oncologist from Manlius, NY, a community near Syracuse. Dhafir was arrested in February 2003 in a raid that drew nationwide media coverage. Long before his trial began, he was labeled “a terrorist” by then Attorney General Ashcroft and then New York Gov. George Pataki.
On the day of the arrest Ashcroft announced that “funders of terrorism” had been arrested. And just before Dhafir’s trial began in October 2004, Pataki described the case as a “money laundering case to help terrorist organizations … conduct horrible acts,” an announcement perfectly timed to reach potential jurors.
But no reference to terrorism or to Dhafir’s Muslim faith was permitted in court, and no terrorism charges were ever brought against him. His supporters claim he was “selectively prosecuted.”
Dhafir was convicted in February 2005 of 59 criminal counts, including money laundering, conspiracy to violate US sanctions against Iraq, misusing $2 million that donors contributed to his unlicensed charity, Help the Needy, spending $544,000 for his own purposes, defrauding Medicare out of $316,000, and evading $400,000 in federal income tax payments by writing off the illegal charity donations. No terrorism here.
Politicians outside the courtroom intentionally hyping the extreme dangers presented by defendants have become standard practice. This has occurred numerous times when it was clear that the alleged “terrorists” were pathetic down-and-outers who many believe had been entrapped by the FBI.
What politicians say at their press conferences is intended to achieve one objective only: to plant doubt in the minds of prospective jurors.
Independent activist Katherine Hughes adds that, “In Dr. Dhafir’s case, they also transformed his community image from a compassionate humanitarian into a crook and supporter of terrorists.”
And just a few days ago, we recall New York Mayor Mike Bloomberg convening a hastily organized press conference to announce the arrest of one Jose Pimentel.
Flanked by Police Commissioner Ray Kelly and Manhattan District Attorney Cyrus Vance, Bloomberg said:
“Yesterday afternoon, New York City police officers arrested a 27-year-old Al Qaeda sympathizer who was plotting to bomb police patrol cars and also postal facilities, as well as target members of our Armed Forces returning from abroad. Jose Pimentel of Washington Heights, which is in the northern end of Manhattan, faces terrorism-related charges….”
Bloomberg also got an opportunity to praise the work of New York’s Finest.
“The NYPD Intelligence Division did outstanding work in tracking this individual and containing the threat he posed to the city. The police constructed a duplicate of an explosive device that the suspect built, and then detonated it in a way that he intended to use his weapon. We wanted to show you a video about the resulting damage,” he said.
He went on: “The suspect was a so-called lone wolf, motivated by his own resentment of the presence of American troops in Iraq and Afghanistan, as well as inspired by Al Qaeda propaganda. He was not part of a larger conspiracy emanating from abroad. He represents exactly the kind of threat FBI Director Robert Mueller and his experts have warned about, as American military and intelligence agencies have eroded Al Qaeda's ability to launch large-scale attacks.
“This case is also reminiscent of another lone wolf plot in 2004 in which two New Yorkers angry over the treatment of prisoners in Iraq plotted to bomb the Herald Square subway station. Like the current case, the Herald Square plot was uncovered by the NYPD Intelligence Division.
“And as with still another case earlier this year in which a lone wolf plotted to attack a large synagogue, the NYPD teamed-up with the Manhattan District Attorney's office to prosecute Pimentel under State terrorism-related statutes.
“Whether launched by lone wolves, Al Qaeda, or Al Qaeda affiliates, there have been at least 13 previous terrorist plots since 9/11 targeting New York City. This would be the fourteenth.
“Because of such repeated threats, the NYPD remains focused on preventing another terrorist attack. We assign a thousand officers to counter-terrorism duties every single day. This is just another case where our precautions paid off."
Some journalists covering the story simply transcribed Bloomberg’s words. Others were suspicious. Did Bloomberg rush this arrest and press conference to divert attention away from the conflicts with the Occupy movement, whose members, as well as some journalists, had just been driven out of Liberty Square, and their tends and other equipment destroyed by police? And where was the FBI? The Bureau participates in almost all such events with the mayor and with less city lights. Soon we learned that the FBI was saying it would not have made this arrest.
That’s a big statement for that agency, which has been suspected by many of using paid informants to entrap gullible individuals, and get them involved in terror plots. However, many of these so-called plots look like children’s games. In others, the alleged perpetrators look so disheveled, bedraggled, disoriented, that they seem like the last people who would be capable of carrying out a terror plot.
In addition to trying to influence juries with incendiary and fear-provoking pronouncements, politicians and the law enforcement agencies they support employ a second technique – in some ways, worse than the false accusations.
This is the designation known as the “person of interest.” This insidious label has the capacity to put life on hold, to turn lives upside down, to bankrupt citizens unable to pay lawyers’ fees to try to prove their innocence.
Remember Richard Jewell? To refresh your memory, Jewell, 33, was working as a security guard at the 1996 Olympics in Atlanta. The Atlanta Police have received a message saying, "There is a bomb in Centennial Park. You have 30 minutes." Jewell was working in Centennial Park.
At 1:20 a.m., a pipe bomb exploded near a huge sound-and-light tower erected by AT&T, which had become a major attraction for visitors to Centennial Olympic Park. The blast killed two people and injured 111 others.
Richard Jewell was the hero of the incident. He was responsible for finding the backpack that had contained the bomb, and for getting people out of the immediate area, thus probably limiting further death and injury.
But four days after the bombing, news organizations reported that Jewell had become the main focus of their investigation as a potential suspect in the bombing. At the time, Jewell was unknown to authorities, and a lone wolf profile made sense to FBI investigators after being contacted by his former employer at Piedmont College.
Though he was never arrested or charged with any crime, Jewell was named as a "person of interest.” His home, where he lived with his mother, was searched and his background exhaustively investigated, all amid a media storm that had cameras following him to the grocery store. Eventually, Jewell was exonerated, and once again hailed as a hero. The media circus pursued Jewell everywhere for weeks, until Eric Rudolph pled guilty to carrying out the bombing attack at the Centennial Olympic Park, as well as three other attacks across the South.
After his exoneration, Jewell filed a series of lawsuits against the media outlets which he claimed had libeled him, primarily NBC News and The Atlanta Constitution, and insisted on a formal apology from them. Jewell's attorneys contend Piedmont College President Raymond Cleere called the FBI and spoke to the Atlanta newspapers, providing them with false information on Jewell and his employment there as a security guard. Jewell's lawsuit accused Cleere of describing Jewell as a "badge-wearing zealot" who "would write epic police reports for minor infractions." Eventually he received an apology from the FBI.
Toward the end of the incident, broadcast host Bill Press discussed Jewell on television. Turning to Larry Sabato, professor of government at the University of Virginia, a guest on the program, he commented, "He (Jewell) did a pretty good job of destroying his own reputation, first, didn't he, Larry?"
To which Sabato replied, "You know, Bill, that's a great example of what happens when some poor soul, and I'm going to assume he's innocent until it's proven otherwise, some poor soul wanders into the media spotlight, because that's what happens. I remember the fellow who deflected the gun from President Ford out in California in 1975 and he saved the president's life and within 48 hours, a newspaper had revealed to his family, who didn't know, that he was gay."
Unlike Jewell, Steven Hatfill was never seen as a hero. But, just as Jewell’s life had been turned upside down by law enforcement, Hatfill’s also became a living hell.
Steven Jay Hatfill, now 60, is an American physician, virologist and bio-weapons expert who underwent what was considered by many to be a trial by media with great toll on his personal and professional life. After eight months of pressure from the media and amateur detectives, the US Department of Justice identified the former government scientist as a "person of interest" in its investigation of the 2001 anthrax attacks. He was put under 24/7 surveillance.
FBI searches of his apartment in July and August 2002 were well-attended by journalists, many of whom had been pointing at Dr. Hatfill for months.
Dr. Hatfill later sued the government for ruining his reputation, a case that the government settled for US$5.8 million. He also filed lawsuits against several periodicals that had pointed to him as a figure warranting further investigation.
The situation became even more tragic when FBI and DOJ officials later blamed the anthrax deaths on another government scientist, Bruce Edwards Ivins, whom they concluded had acted alone. Ivins committed suicide. The case remains unsolved.
The abuses described here are miscarriages of justice, whether they occur in or outside a court. Politicians and law enforcement agencies depend on a supine press corps to circulate their stories all over the world in minutes. With the help of a media more skilled in stenography than in reporting, unsubstantiated rumors are printed and broadcast as facts. If further investigation is done by the media (which is rare) corrections often appear, if at all, long after the event. Yet they can rob you of your reputation before you have a chance to respond.
To be the target of a media blitz is tantamount to being found guilty of something. When a politician or an overly zealous prosecutor tags you as a dangerous terrorist before you ever go to court, you might as well not go to court. Such is the fear of terror that has pervaded our country since 9/11 that Congress, in its infinite wisdom, has even successfully dictated where and how to try those accused of terrorism.
Is there anything ordinary citizens can do about these kinds of events? Unfortunately, not much. We should be urging our political leaders to choose their words more carefully and to show more respect for the rule of law. We should reign in over-zealous prosecutors who see their mission in life as collecting scalps. And we should be campaigning in Congress for substantial revisions in the “material support” law.
Politicians, judges, prosecutors and lawmakers need to demonstrate that they know the difference between governance and show business!
Ordinary citizens can’t censor what politicians say. And Judges could do a far better job of censoring what lawyers say (or fail to say) in court.
Perhaps the simplest target for irate citizens is the “person of interest” designation. The phrase has no legal meaning; it is administrative verbiage that law enforcement uses to show the public it’s working hard to find to find the guilty.
That phrase should be expunged from the Justice Department’s lexicon.
And that’s well within the President’s prerogatives.
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