By William Fisher
As the numbers of Iraqi refugees continue to grow exponentially, the American president who earned a reputation as a bumbler who couldn’t walk and chew gum at the same time is increasingly being hailed as the hero who dealt effectively with a similar crisis forty years ago.
The president was Gerald R. Ford, and the similar crisis was in Vietnam. On the evening of April 10, 1975, President Ford appealed to a joint session of Congress to act to ensure the safety of “tens of thousands of South Vietnamese employees of the United States Government, of news agencies, of contractors and businesses for many years, whose lives, with their dependents, are in very grave peril. There are tens of thousands of other South Vietnamese intellectuals, professors, teachers, editors, and opinion leaders who have supported the South Vietnamese cause and the alliance with the United States to whom we have a profound moral obligation.”
Only a month later, Congress passed the Indochina Migration and Refugee Assistance Act. As a result, more than 131,000 Vietnamese refugees were rescued from the chaos of South Vietnam, and brought to the security of the US.
Today, the refugee crises are largely in Iraq and, to a lesser extent, Afghanistan. Thus far, more than two million Iraqi refugees have fled from persecution and sectarian violence. They have mostly traveled to Jordan and Syria. In addition, at least 1.8 million are displaced within Iraq.
According to Human Rights First, tens of thousands of these refugees have been targeted because of their work for the US government, non-governmental organizations or the media. Iraqis who have served as translators for the US forces, for example, have frequently been attacked and threatened.
Bill Frelick, refugee policy director at Human Rights Watch and author of an extensive report on the situation, says, "As it turns out, many of the people who are fleeing are fleeing because of their associations with the United States."
The chances are President Ford would not have been proud of the US response to the current refugee crisis. At a January 2007 oversight hearing on “The Plight of Iraqi Refugees,” Senator Ted Kennedy (D-MA) expressed concern that the US admitted only 202 Iraqi refugees to the country during fiscal 2006 and that a special immigrant visa program for Iraqi and Afghan translators already had a six-year wait list. Since April 2003, the Bush Administration has admitted exactly 692 Iraqi refugees, and the number of those in need is growing by an estimated 50,000 a month.
In February 2007, under considerable pressure from congress and the media, the State Department announced that the US would admit 7,000 Iraqi refugees in through its resettlement program; create special programs to assist Iraqis who are at risk because of their employment or close association with the United States government; and contribute $18 million to the work of the UN High Commission for Refugees. But at the same time, the Bush Administration admitted that it probably would not be able to move more than two or three thousand Iraqis by the end of September, a period of eight months.
What accounts for this admittedly constipated performance? In 1975, President Ford confronted a public weary of an unpopular, unsuccessful war, but got Congress to deliver anyway. Today, President Bush faces similar sentiments regarding the five-year-plus US intervention in Iraq.
The difference, according to national security, human rights and governmental sources, is 9/11. Since the terrorist attacks of 2001, and the establishment of the Department of Homeland Security, Americans have lived in an environment of fear. At the top of their fear list are Middle Eastern immigrants, who are seen as potential terrorists.
As a consequence of 9/11, the DHS established rigorous criteria for granting asylum to those from all other countries – and these criteria apply to people who have become refugees because of the American invasion of their country. The DHS, however, lacked and still lacks the resources to carry out its mandated security checks on would-be asylum-seekers. Each Iraqi must be interviewed individually, including translators, truck drivers and others who have worked for the US military, which presumably carried out its own security checks before they were hired.
Because of security concerns, they cannot be interviewed at the American Embassy in Baghdad. If they have fled to Jordan, Syria, or other countries in the region, they must be interviewed there. This means dispatching DHS or State Department screeners overseas, where few wish to go. And before interviews can take place, applicants must be referred to American authorities by the UN. That process calls for resources the UN doesn’t have, and predictably involves a mountain of bureaucratic paperwork.
For example, last year Congress passed legislation to offer special immigrant status to persons serving as translators with the US Armed Forces. Under this statute, a limited number of translators and their immediate family may immigrate to the United States in each fiscal year.
But applicants are required to jump through multiple bureaucratic hoops to qualify. They must be able to prove they have worked directly with the US Armed Forces as a translator for a period of at least 12 months; obtain a favorable written recommendation from a General or Flag Officer in the chain of command of the US Armed Forces unit that was supported by the translator; cleared a background check and screening as determined by a General or Flag Officer; is otherwise eligible to receive an immigrant visa and is otherwise admissible to the US for permanent residence.
Spouses and children of the translator may be able to follow or join after the translator has adjusted status or been issued an immigrant visa.
The bill specifies that the US Armed Forces unit is the “advocate” on behalf the translator and his/her immediate family. The translator must file the petition and related documents directly with the US Citizenship and Immigration Service (USCIS), which is part of the Department of Homeland Security (DHS).
There are clearly problems with this legislation. For one thing, for people who have fled their country in fear of their lives frequently have no access to the extensive documentation required by this law. Nor, if they have already left Iraq for another country, do they have access to the Generals or Flag Officers of the units they worked for.
But the most consequential provision of the legislation is its limited scope. The total number of Iraqi and Afghani translators who may be provided special immigrant translator status during each fiscal year cannot exceed 50. The Department of Homeland Security’s Nebraska Service Center is mandated to track this numerical cap. As of January, this cap was exceeded by more than 6,000 applicants.
This situation has produced major heartburn for Ellen R. Sauerbrey, assistant secretary of state for population, refugees and migration, who has been grilled by both House and Senate oversight committees. Many of the members of these bodies strongly opposed her nomination to her current post based on lack of experience.
Ms. Sauerbrey was a recess appointment in January 2006. She is a two-time failed gubernatorial candidate in Maryland and previously served as US envoy on women's issues to the United Nations, where she opposed ratification of the Convention for the Elimination of all forms of Discrimination Against Women.
Sauerbrey has also worked as a Republican National Committeewoman, and is former Minority Leader of the Maryland House of Delegates. She was a Republican member of the House of Delegates from 1978 to 1994 and was candidate for governor in 1994 and 1998.
A former public school teacher, Sauerbrey has no prior experience dealing with refugee populations. She also has no experience dealing with human disasters.
Given that a large percentage of refugees tend to be women and children, Sauerbrey's stance on reproductive rights is relevant. According to Planned Parenthood, she is anti-abortion and believes that it is not a legitimate element of reproductive health assistance. She also approves withholding funding to the United Nations Population Fund and has denied that adolescents have any right to exercise autonomous control over their reproductive health.
With Democrats now in control of both the House and the Senate, Sauerbrey and the Bush Administration’s policies on Iraqi and Afghan refugees find themselves subjected to robust oversight for the first time. But even if Congress is able to bring about positive policy changes, and adopt regulations to streamline refugee processing, it remains unclear whether the State Department and the Department of Homeland Security have the resources and the professional know-how to implement the changes efficiently.
Thursday, April 12, 2007
Friday, April 06, 2007
HOUSE TACKLES “FEMICIDE” IN LATIN AMERICA
By William Fisher
While headlines in the mainstream media front-page such controversies as Speaker Nancy Pelosi’s visit to Syria and lawmakers’ standoff with the White House on timelines for American withdrawal from Iraq, the more mundane – but arguably no less important – work of the Congress goes on. Much of it continues under the radar, receiving little or no attention in the press. Some of it is actually bipartisan!
One example is an obscure measure known as H. Res. 100. What is House Resolution 100?
It is an effort by a large bipartisan group of representatives to try to end a deadly phenomenon known as “femicide” in Guatemala and elsewhere in Central and South America.
Introduced by Congresswoman Hilda L. Solis (D-CA) and 84 co-sponsors, and unanimously approved by the House Committee on Foreign Affairs, the resolution urges the US Government to bring pressure on Guatemala to address the unsolved murders of more than 2,000 women and girls since 2001.
Rep. Solis says, “Very few of these crimes have been investigated and even fewer perpetrators have been brought to justice for their crimes. Families of victims deserve honest answers and investigations into the murders of their wives, mothers and daughters murders, instead of being ignored and intimidated.
H.Res. 100 will raise awareness of the growing murder rate of women and girls in Guatemala, and increase the international pressure that is needed to stop the violence against women in that country.”
It is not known whether President Bush raised the issue with Guatemalan leaders during his recent trip to Latin America.
Efforts to raise awareness of femicide have been spearheaded by numerous immigration and human rights organizations. Chief among them is the Center for Gender and Refugee Studies, University of California, Hastings College of Law in San Francisco, working in partnership with Guatemalan groups.
Asked by Truthout why the US Government should take in interest in this issue, the Center’s Advocacy Coordinator and Communications Director, Felecia Bartow, noted that, in addition to human rights concerns, “The U.S. has provided millions of dollars in aid for Rule of Law programs in Guatemala – and yet the murders and impunity persist. In 2006, the Guatemalan government created the National Institute of Forensic Science (INACIF) to improve criminal investigations and to prosecute those who commit crimes, including the murders of women. To date, the Guatemalan Congress has not provided INACIF with a budget and has not appointed any personnel – despite the fact that the State Department allocated $250,000 to INACIF in its FY2007 budget, and they have asked for another $250,000 that would come out of the FY2008 budget.
She added that the US Government has thus “not done enough” to address the issue of femicide. “The State Department needs to make it clear to the Guatemalan government that this situation cannot persist. There has been concern expressed about violence against women in Guatemala generally, but there have not been steps taken to hold the Guatemalan government accountable for the state of impunity that exists for those who murder women,” she told Truthout.
Femicide is also a problem elsewhere in Latin America. Last year, Bolivia, Peru, Colombia, Mexico and Guatemala sent a delegation of activists to the
Inter-American Commission on Human Rights in Washington to focus attention on the murders of innocent women.
The delegation asserted that, “In addition to the deaths in Guatemala, incomplete murder rates presented to the Commission cite 373 known murders of women in Bolivia from 2003 to 2004, and 143 in Peru during 2003. In Colombia, a woman is reportedly killed every six days by her partner or ex-partner. Ciudad Juarez and Chihuahua City, Mexico, two cities where the femicide trend was first widely noticed, have suffered the murder of more than 500 women from multiple causes since 1993, according to press and other sources. Dozens more remain missing. Globally, the problem is no less severe. In many parts of South Asia and the Middle East, for example, so-called ‘honor killings’ usually go unpunished.”
In a joint letter to prospective supporters of the Solis resolution, Karen Musalo, Director of the Center for Gender & Refugee Studies, and Barb Gottlieb, Director of Outreach & Membership for the Women's Edge Coalition, said, “As of August 2006, 2,300 Guatemalan women had been murdered since the beginning of 2000, and only 17 cases had been resolved, including both convictions and exonerations. In fact, so few convictions have been handed down that there is almost complete impunity for those who murder women in Guatemala. Investigators mishandle crime scenes and officials blame the victims themselves, often deciding that their murders are not worth investigating because they are deemed to be ‘nobodies’."
The organizations said, “During Guatemala's decades of internal armed conflict, state-sponsored violence was widespread, and rape was commonly used as a weapon of war against women. Numerous investigations have concluded that the vast majority of these human rights violations were conducted by members of the Guatemalan Army or intelligence services. Today, a decade after the conflict's resolution, many of those responsible have escaped prosecution and now work with the police or private security forces. Perhaps it is no wonder that violence against women continues unabated, and that the perpetrators are virtually never brought to justice.”
The original cosponsors of the House Resolution include Rep. Tom Lantos (D-CA), the Chair of the full House Committee on Foreign Affairs, Rep. Eliot Engel (D-NY), the Chair of the House Committee on Foreign Affairs Subcommittee on the Western Hemisphere, and Rep. Dan Burton (R-IN), the Ranking Member of the House Committee on Foreign Affairs Subcommittee on the Western Hemisphere. Rep. Burton introduced a similar resolution in the 109th Congress last year, but it did not come to a vote before the end of the year.
Consideration of the Solis resolution by the full House is expected in the coming months. A similar resolution is expected to be introduced in the Senate.
The Solis resolution is endorsed by numerous human rights and legal organizations, including Amnesty International, the Washington Office on Latin America (WOLA), the Central American Resource Center (CARECEN), Human Rights First, and the Center for Gender and Refugee Studies.
The Hastings Center’s Karen Musalo told Truthout, “The brutal murders of thousands of women with total impunity has gone on for all too long, and we are grateful that the House of Representatives has now gone on record calling for the Guatemalan government to bring an end to this disgraceful impunity.”
The plight of women in Latin America and elsewhere is exacerbated by the absence of US immigration regulations that would grant asylum to victims of domestic violence.
In a highly publicized case, a Guatemalan refugee named Rodi Alvarado became the poster child for this immigration dilemma. Mrs. Alvarado’s husband, a former soldier in the Guatemalan military, brutally beat her over a period of 10 years while the Guatemalan police and courts ignored her repeated attempts to get help. When she ran away, her husband found her and beat her unconscious. Finally, in 1995, she fled to the U.S. in search of safety.
An immigration judge granted her asylum, but that decision was reversed by the Board of Immigration Appeals. Two successive Attorneys General – Janet Reno and John Ashcroft – have personally intervened, but her case has yet to be decided.
Ashcroft said a decision should await new regulations from the Department of Homeland Security (DHS), which supervises most immigration matters. But DHS and the Department of Justice have been unable to agree on a position.
Meanwhile, Mrs. Alvarado remains in legal limbo. She continues to work as a housekeeper at a convent in San Francisco. The DHS says it will not press for her deportation regardless of how much longer it may take the agency to finalize the new regulations. But while she can remain in the US, she cannot be reunited with her children, who remain in Guatemala.
The government started working on such regulations many years ago, long before the DHS was created. Under US law, asylum applicants have to show they can't go home because they face persecution because of religion, race, nationality, political opinion or membership in a particular social group. In a regulation proposed during the Clinton Administration by Attorney General Janet Reno, battered women would have been considered members of a social group.
But with the change in administrations and the Sept. 11, 2001, attacks, the proposal languished. Opponents have said new asylum rules would lead to a surge in claims, an assertion disputed by advocates.
According to Human Rights First, an advocacy group that has worked on this issue for several years, "DHS recognized, in Rodi Alvarado’s case, that women who have suffered these kinds of abuses are entitled to this country’s protection, if they can satisfy certain criteria.”
HRF adds, "Three years later, however, the Department of Justice and DHS have still not issued regulations consistent with the DHS position. Not only is this failure disturbing because of its impact on Ms. Alvarado and other women, but it is particularly inexplicable given the extensive bipartisan support, which includes support from conservative advocacy and religious groups."
While headlines in the mainstream media front-page such controversies as Speaker Nancy Pelosi’s visit to Syria and lawmakers’ standoff with the White House on timelines for American withdrawal from Iraq, the more mundane – but arguably no less important – work of the Congress goes on. Much of it continues under the radar, receiving little or no attention in the press. Some of it is actually bipartisan!
One example is an obscure measure known as H. Res. 100. What is House Resolution 100?
It is an effort by a large bipartisan group of representatives to try to end a deadly phenomenon known as “femicide” in Guatemala and elsewhere in Central and South America.
Introduced by Congresswoman Hilda L. Solis (D-CA) and 84 co-sponsors, and unanimously approved by the House Committee on Foreign Affairs, the resolution urges the US Government to bring pressure on Guatemala to address the unsolved murders of more than 2,000 women and girls since 2001.
Rep. Solis says, “Very few of these crimes have been investigated and even fewer perpetrators have been brought to justice for their crimes. Families of victims deserve honest answers and investigations into the murders of their wives, mothers and daughters murders, instead of being ignored and intimidated.
H.Res. 100 will raise awareness of the growing murder rate of women and girls in Guatemala, and increase the international pressure that is needed to stop the violence against women in that country.”
It is not known whether President Bush raised the issue with Guatemalan leaders during his recent trip to Latin America.
Efforts to raise awareness of femicide have been spearheaded by numerous immigration and human rights organizations. Chief among them is the Center for Gender and Refugee Studies, University of California, Hastings College of Law in San Francisco, working in partnership with Guatemalan groups.
Asked by Truthout why the US Government should take in interest in this issue, the Center’s Advocacy Coordinator and Communications Director, Felecia Bartow, noted that, in addition to human rights concerns, “The U.S. has provided millions of dollars in aid for Rule of Law programs in Guatemala – and yet the murders and impunity persist. In 2006, the Guatemalan government created the National Institute of Forensic Science (INACIF) to improve criminal investigations and to prosecute those who commit crimes, including the murders of women. To date, the Guatemalan Congress has not provided INACIF with a budget and has not appointed any personnel – despite the fact that the State Department allocated $250,000 to INACIF in its FY2007 budget, and they have asked for another $250,000 that would come out of the FY2008 budget.
She added that the US Government has thus “not done enough” to address the issue of femicide. “The State Department needs to make it clear to the Guatemalan government that this situation cannot persist. There has been concern expressed about violence against women in Guatemala generally, but there have not been steps taken to hold the Guatemalan government accountable for the state of impunity that exists for those who murder women,” she told Truthout.
Femicide is also a problem elsewhere in Latin America. Last year, Bolivia, Peru, Colombia, Mexico and Guatemala sent a delegation of activists to the
Inter-American Commission on Human Rights in Washington to focus attention on the murders of innocent women.
The delegation asserted that, “In addition to the deaths in Guatemala, incomplete murder rates presented to the Commission cite 373 known murders of women in Bolivia from 2003 to 2004, and 143 in Peru during 2003. In Colombia, a woman is reportedly killed every six days by her partner or ex-partner. Ciudad Juarez and Chihuahua City, Mexico, two cities where the femicide trend was first widely noticed, have suffered the murder of more than 500 women from multiple causes since 1993, according to press and other sources. Dozens more remain missing. Globally, the problem is no less severe. In many parts of South Asia and the Middle East, for example, so-called ‘honor killings’ usually go unpunished.”
In a joint letter to prospective supporters of the Solis resolution, Karen Musalo, Director of the Center for Gender & Refugee Studies, and Barb Gottlieb, Director of Outreach & Membership for the Women's Edge Coalition, said, “As of August 2006, 2,300 Guatemalan women had been murdered since the beginning of 2000, and only 17 cases had been resolved, including both convictions and exonerations. In fact, so few convictions have been handed down that there is almost complete impunity for those who murder women in Guatemala. Investigators mishandle crime scenes and officials blame the victims themselves, often deciding that their murders are not worth investigating because they are deemed to be ‘nobodies’."
The organizations said, “During Guatemala's decades of internal armed conflict, state-sponsored violence was widespread, and rape was commonly used as a weapon of war against women. Numerous investigations have concluded that the vast majority of these human rights violations were conducted by members of the Guatemalan Army or intelligence services. Today, a decade after the conflict's resolution, many of those responsible have escaped prosecution and now work with the police or private security forces. Perhaps it is no wonder that violence against women continues unabated, and that the perpetrators are virtually never brought to justice.”
The original cosponsors of the House Resolution include Rep. Tom Lantos (D-CA), the Chair of the full House Committee on Foreign Affairs, Rep. Eliot Engel (D-NY), the Chair of the House Committee on Foreign Affairs Subcommittee on the Western Hemisphere, and Rep. Dan Burton (R-IN), the Ranking Member of the House Committee on Foreign Affairs Subcommittee on the Western Hemisphere. Rep. Burton introduced a similar resolution in the 109th Congress last year, but it did not come to a vote before the end of the year.
Consideration of the Solis resolution by the full House is expected in the coming months. A similar resolution is expected to be introduced in the Senate.
The Solis resolution is endorsed by numerous human rights and legal organizations, including Amnesty International, the Washington Office on Latin America (WOLA), the Central American Resource Center (CARECEN), Human Rights First, and the Center for Gender and Refugee Studies.
The Hastings Center’s Karen Musalo told Truthout, “The brutal murders of thousands of women with total impunity has gone on for all too long, and we are grateful that the House of Representatives has now gone on record calling for the Guatemalan government to bring an end to this disgraceful impunity.”
The plight of women in Latin America and elsewhere is exacerbated by the absence of US immigration regulations that would grant asylum to victims of domestic violence.
In a highly publicized case, a Guatemalan refugee named Rodi Alvarado became the poster child for this immigration dilemma. Mrs. Alvarado’s husband, a former soldier in the Guatemalan military, brutally beat her over a period of 10 years while the Guatemalan police and courts ignored her repeated attempts to get help. When she ran away, her husband found her and beat her unconscious. Finally, in 1995, she fled to the U.S. in search of safety.
An immigration judge granted her asylum, but that decision was reversed by the Board of Immigration Appeals. Two successive Attorneys General – Janet Reno and John Ashcroft – have personally intervened, but her case has yet to be decided.
Ashcroft said a decision should await new regulations from the Department of Homeland Security (DHS), which supervises most immigration matters. But DHS and the Department of Justice have been unable to agree on a position.
Meanwhile, Mrs. Alvarado remains in legal limbo. She continues to work as a housekeeper at a convent in San Francisco. The DHS says it will not press for her deportation regardless of how much longer it may take the agency to finalize the new regulations. But while she can remain in the US, she cannot be reunited with her children, who remain in Guatemala.
The government started working on such regulations many years ago, long before the DHS was created. Under US law, asylum applicants have to show they can't go home because they face persecution because of religion, race, nationality, political opinion or membership in a particular social group. In a regulation proposed during the Clinton Administration by Attorney General Janet Reno, battered women would have been considered members of a social group.
But with the change in administrations and the Sept. 11, 2001, attacks, the proposal languished. Opponents have said new asylum rules would lead to a surge in claims, an assertion disputed by advocates.
According to Human Rights First, an advocacy group that has worked on this issue for several years, "DHS recognized, in Rodi Alvarado’s case, that women who have suffered these kinds of abuses are entitled to this country’s protection, if they can satisfy certain criteria.”
HRF adds, "Three years later, however, the Department of Justice and DHS have still not issued regulations consistent with the DHS position. Not only is this failure disturbing because of its impact on Ms. Alvarado and other women, but it is particularly inexplicable given the extensive bipartisan support, which includes support from conservative advocacy and religious groups."
Tuesday, April 03, 2007
JUSTICE DELAYED, JUSTICE DENIED
By William Fisher
The human rights community responded angrily today to the Supreme Court’s decision not to hear the cases of detainees at Guantanamo Bay, Cuba, until they have exhausted all other legal avenues.
The effect of the high court’s decision is to deny civil judicial review to the 300-plus prisoners still held at the controversial U.S. military base until their cases have gone through the process set up by the 2005 Detainee Treatment Act (DTA), which allows limited civil court appeals of decisions reached by military review panels.
Reaction from human rights and legal advocacy groups was quick and scathing.
Vincent Warren, executive director of the Center for Constitutional Rights – the group that filed the petition on behalf of three Guantanamo detainees – said, "The Supreme Court has once more delayed the resolution of the fate of these detainees - three quarters of whom the military admits it will never charge - who have languished without any meaningful way to challenge their detention for more than five years."
He added, "The processes the government put in place are a sham -- they allow the use of evidence obtained through torture and no real review of the facts. DTA review is not an adequate substitute for the right of habeas corpus. We hope our clients survive until they finally get their day in court."
The Center for Constitutional Rights represents many of the detainees at Guantánamo and coordinates the work of nearly 500 pro bono attorneys.
Gabor Rona, International Legal Director of Human Rights First, told IPS, “After having endured up to five years of waiting in vain for justice, Guantanamo detainees, many of whom have never been charged with any hostile act against Americans but all of whom have endured severe and abusive conditions and treatment in violation of international law, are now told to take their claims back to the very same lower courts that have denied their right to even file a judicial challenge to their detention. With justice repeatedly delayed and thus denied, it is all the more important that Congress step in with a fix that restores America's commitment to its traditional values of a fair hearing for all whose freedom is denied. Not only for the sake of the detainees, but more importantly in the fight against terrorism, in order to heal our self-inflicted wounds.”
His view was echoed by other legal scholars and advocacy groups. Mary Shaw of Amnesty International USA told IPS, “The so-called ‘war on terror’ has become a war on human rights. And Monday's Supreme Court decision is another disturbing consequence of the Military Commissions Act, which turned bad administration policy into bad law. Amnesty International urges Congress to take immediate action to restore habeas corpus rights to all detainees in U.S. custody.”
The two justices who issued the statement, Kennedy and Stevens, wrote that they wanted to see the process put in place by the DTA played out to determine if it is an adequate substitute for habeas corpus before they rule. The DTA allows detainees to challenge in the Court of Appeals the decisions of the Combatant Status Review Tribunals (CSRT's) determining they are so-called "enemy combatants."
CCR attorneys called the CSRT's “a sham process where the government controls what evidence and witnesses are permitted, evidence obtained by torture is permissible, and the detainees have no lawyer representing them and no guarantee of due process. The DTA review in the Court of Appeals only allows review of whether the government adhered to its own rules, and contains no provision for considering additional facts not allowed to be considered in the CSRT process. The scope of whom the president can label an "enemy combatant" is ever-shifting and virtually without limit.”
CCR lawyers pointed out that “Some detainees were sent through the CSRT process as many as three times until they were found guilty-the process is designed to get the government the results it wants.”
Monday’s denial was not a ruling on the merits of the cases brought, but on the question of whether the Court should take up the cases at this moment. Justices Stevens and Kennedy issued the following warning:
"If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005…or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals."
Justice Breyer wrote in his dissent, "It is unreasonable to suggest that the D.C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have."
The Supreme Court has twice affirmed the detainees' right to habeas corpus review, first in a landmark case known as Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006.
In Rasul v. Bush, the high court held in June 2004, that foreign nationals imprisoned without charge at the Guantanamo Bay interrogation camps were entitled to bring legal action challenging their captivity in U.S. federal civilian courts. A five-justice majority ruled that the military commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.
The court thus rejected a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.
In its Hamdan decision, the court ruled that no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently.
President Bush responded by pressing congress to pass the Military Commissions Act (MCA) of 2006. Like its predecessors, the MCA denies detainees any right to habeas corpus suits.
The MCA is itself the subject both of pending litigation and also of action in congress to repeal sections of it. The Democratic chairman and ranking Republican on the Senate Judiciary Committee, Sens. Pat Leahy of Vermont and Arlen Specter of Pennsylvania, have introduced legislation to repeal the MCA.
The Detainee Treatment Act contains the so-called “McCain Amendment”, named for its chief proponent, Sen. John McCain, an Arizona Republican who is one of the leading contenders for the 2008 presidential nomination. The McCain Amendment cites the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques. But in December 2006, the New York Times reported that the Army Field Manual had been rewritten by the Pentagon. Previously, the manual's interrogation techniques section could be read freely on the Internet. But the new edition's includes 10 classified pages in the interrogation technique section.
The McCain Amendment's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they're tortured. It is named for Republican Sen. Lindsey Graham of South Carolina and Democrat Sen. Carl Levin of Illinois.
Critics contend that these two actions deflate the McCain Amendment from having any real power in stopping torture by the U.S. Government, and claim that these were the true reasons President Bush "conceded" to McCain's demands.
Amnesty International claims that the amendment's loopholes actually signal that torture is now official U.S. policy.
The Detainee Treatment Act was further complicated by a “signing statement” issued by President George W. Bush after he approved the bill. A signing statement is an official document in which a president lays out his interpretation of a new law.
After signing the DTA into law, Bush wrote:
"The executive branch shall construe (the section of the Act), relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President… of protecting the American people from further terrorist attacks."
The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."
Critics of the president have charged that Bush’s numerous signing statements have the effect of allowing the president to decide which parts of what laws he intends to comply with.
The human rights community responded angrily today to the Supreme Court’s decision not to hear the cases of detainees at Guantanamo Bay, Cuba, until they have exhausted all other legal avenues.
The effect of the high court’s decision is to deny civil judicial review to the 300-plus prisoners still held at the controversial U.S. military base until their cases have gone through the process set up by the 2005 Detainee Treatment Act (DTA), which allows limited civil court appeals of decisions reached by military review panels.
Reaction from human rights and legal advocacy groups was quick and scathing.
Vincent Warren, executive director of the Center for Constitutional Rights – the group that filed the petition on behalf of three Guantanamo detainees – said, "The Supreme Court has once more delayed the resolution of the fate of these detainees - three quarters of whom the military admits it will never charge - who have languished without any meaningful way to challenge their detention for more than five years."
He added, "The processes the government put in place are a sham -- they allow the use of evidence obtained through torture and no real review of the facts. DTA review is not an adequate substitute for the right of habeas corpus. We hope our clients survive until they finally get their day in court."
The Center for Constitutional Rights represents many of the detainees at Guantánamo and coordinates the work of nearly 500 pro bono attorneys.
Gabor Rona, International Legal Director of Human Rights First, told IPS, “After having endured up to five years of waiting in vain for justice, Guantanamo detainees, many of whom have never been charged with any hostile act against Americans but all of whom have endured severe and abusive conditions and treatment in violation of international law, are now told to take their claims back to the very same lower courts that have denied their right to even file a judicial challenge to their detention. With justice repeatedly delayed and thus denied, it is all the more important that Congress step in with a fix that restores America's commitment to its traditional values of a fair hearing for all whose freedom is denied. Not only for the sake of the detainees, but more importantly in the fight against terrorism, in order to heal our self-inflicted wounds.”
His view was echoed by other legal scholars and advocacy groups. Mary Shaw of Amnesty International USA told IPS, “The so-called ‘war on terror’ has become a war on human rights. And Monday's Supreme Court decision is another disturbing consequence of the Military Commissions Act, which turned bad administration policy into bad law. Amnesty International urges Congress to take immediate action to restore habeas corpus rights to all detainees in U.S. custody.”
The two justices who issued the statement, Kennedy and Stevens, wrote that they wanted to see the process put in place by the DTA played out to determine if it is an adequate substitute for habeas corpus before they rule. The DTA allows detainees to challenge in the Court of Appeals the decisions of the Combatant Status Review Tribunals (CSRT's) determining they are so-called "enemy combatants."
CCR attorneys called the CSRT's “a sham process where the government controls what evidence and witnesses are permitted, evidence obtained by torture is permissible, and the detainees have no lawyer representing them and no guarantee of due process. The DTA review in the Court of Appeals only allows review of whether the government adhered to its own rules, and contains no provision for considering additional facts not allowed to be considered in the CSRT process. The scope of whom the president can label an "enemy combatant" is ever-shifting and virtually without limit.”
CCR lawyers pointed out that “Some detainees were sent through the CSRT process as many as three times until they were found guilty-the process is designed to get the government the results it wants.”
Monday’s denial was not a ruling on the merits of the cases brought, but on the question of whether the Court should take up the cases at this moment. Justices Stevens and Kennedy issued the following warning:
"If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005…or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals."
Justice Breyer wrote in his dissent, "It is unreasonable to suggest that the D.C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have."
The Supreme Court has twice affirmed the detainees' right to habeas corpus review, first in a landmark case known as Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006.
In Rasul v. Bush, the high court held in June 2004, that foreign nationals imprisoned without charge at the Guantanamo Bay interrogation camps were entitled to bring legal action challenging their captivity in U.S. federal civilian courts. A five-justice majority ruled that the military commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.
The court thus rejected a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.
In its Hamdan decision, the court ruled that no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently.
President Bush responded by pressing congress to pass the Military Commissions Act (MCA) of 2006. Like its predecessors, the MCA denies detainees any right to habeas corpus suits.
The MCA is itself the subject both of pending litigation and also of action in congress to repeal sections of it. The Democratic chairman and ranking Republican on the Senate Judiciary Committee, Sens. Pat Leahy of Vermont and Arlen Specter of Pennsylvania, have introduced legislation to repeal the MCA.
The Detainee Treatment Act contains the so-called “McCain Amendment”, named for its chief proponent, Sen. John McCain, an Arizona Republican who is one of the leading contenders for the 2008 presidential nomination. The McCain Amendment cites the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques. But in December 2006, the New York Times reported that the Army Field Manual had been rewritten by the Pentagon. Previously, the manual's interrogation techniques section could be read freely on the Internet. But the new edition's includes 10 classified pages in the interrogation technique section.
The McCain Amendment's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they're tortured. It is named for Republican Sen. Lindsey Graham of South Carolina and Democrat Sen. Carl Levin of Illinois.
Critics contend that these two actions deflate the McCain Amendment from having any real power in stopping torture by the U.S. Government, and claim that these were the true reasons President Bush "conceded" to McCain's demands.
Amnesty International claims that the amendment's loopholes actually signal that torture is now official U.S. policy.
The Detainee Treatment Act was further complicated by a “signing statement” issued by President George W. Bush after he approved the bill. A signing statement is an official document in which a president lays out his interpretation of a new law.
After signing the DTA into law, Bush wrote:
"The executive branch shall construe (the section of the Act), relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President… of protecting the American people from further terrorist attacks."
The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."
Critics of the president have charged that Bush’s numerous signing statements have the effect of allowing the president to decide which parts of what laws he intends to comply with.
Monday, April 02, 2007
THE RIGHT SEEKS TO REIN IN PRESIDENTIAL POWER
By William Fisher
Leading voices in the Conservative movement are demanding that the Democrat-controlled congress restore checks and balances within the government and rein in the power President George W. Bush.
But their point of view is consistently being drowned out by the ‘Anne Coulter wing’ of the Republican Party, fed by the “ignorance of members of Congress about the principles of a Constitutional democracy.”
This is the view expressed in an exclusive interview with Truthout by Bruce Fein, who served as Associate Deputy Attorney General under President Ronald Reagan, and is a founder of a conservative movement known as the Liberty Coalition. The Coalition has launched a new initiative, known as the American Freedom Agenda. The AFA’s-point action program calls on Congress to:
• End the use of military commissions to prosecute crimes.
• Prohibit the use of secret evidence or evidence obtained by torture.
• Prohibit the detention of American citizens as enemy combatants without proof.
• Restore habeas corpus for alleged alien combatants.
• End National Security Agency warrantless wiretapping.
• Challenge presidential signing statements.
• Bar executive use of the state secret privilege to deny justice.
• Prohibit the President from collaborating with foreign governments to kidnap,
detain of torture persons abroad.
• Amend the Espionage Act to permit journalists to report on classified national
security matters without threat of persecution.
• Prohibit of the labeling of groups or individuals in the U.S. as global
terrorists based on secret evidence.
The AFA plans to draft legislation to achieve these goals and to lobby Congress to put the proposed measures on the House and Senate calendars.
The Coalition has also rebuffed the recent testimony of Federal Bureau of Investigation (FBI) Director Robert Mueller regarding the illegal use of National Security Letters (NSL's). Appearing before the Senate Judiciary Committee, Mueller acknowledged that FBI personnel had violated laws and regulations and that the Bureau had failed to create effective internal oversight controls.
Truthout asked about the enthusiastic applause that followed the intemperate remarks of right-wing author Anne Coulter at the recent annual meeting of CPAC, the Conservative Political Action Conference, in Washington, D.C. Coulter implied that Democratic presidential hopeful John Edwards was a homosexual.
Fein told Truthout, “Imbeciles like Anne Coulter play to the basest instincts of the Conservative movement to give the President a blank check to grab whatever power he wishes.”
He said the CPAC audience was composed largely of younger conservatives. Without excusing her rhetoric, Fein said that Coulter was “simply giving them a pep talk.”
He expressed disappointment with the lack of any real pushback against Presidential power by congressional Democrats. “The Democrats in Congress have done absolutely nothing to tell the president he is not a king and we do not live in a monarchy. They are allowing him to trash the Constitution because most of them know nothing about the Constitution and are concerned only with making headlines about minor issues and getting themselves reelected.”
Fein acknowledged that things were probably worse when Congress was under Republican control, “but only marginally.”
“Neither party has shown the courage to assert the power of Congress as a co-equal branch of government. Congress should be telling the president it’s not OK to detain people without trials, to grab people off the streets and ‘render’ them to other countries to be tortured, to listen in to our telephone conversations, and to issue signing statements that nullify laws he doesn’t like.”
He added, “We elect members of Congress to lead, not to follow. If they are going to lead, they need to understand the Constitution and the vision of its framers, and then have the backbone to insist that the executive branch stop usurping the responsibilities assigned to the legislative and judicial branches of our government.”
Fein’s associates in the coalition include some of the best-known and most respected names in the American Conservative movement. They include former Georgia congressman Bob Barr, political marketing guru Richard Viguery, and David Keene, who has since 1984 been the chairman of the American Conservative Union, the nation’s oldest and largest grassroots conservative lobbying organization.
Some, most notably Bob Barr, led a conservative drive last year to repeal sections of the USA Patriot Act and revise others in order to preserve civil liberties.
The Liberty Coalition includes such organizations as the American Civil Liberties Union, American Families United, Americans for Tax Reform, Amnesty International, the Arab American Institute, Association of American Physicians and Surgeons, the Bill of Rights Defense Committee,
Common Cause, Concerned Foreign Service Officers, the Drug Policy Alliance,
the Electronic Frontier Foundation, the Government Accountability Project,
MoveOn.org, the National Security Whistleblowers Coalition, People for the American Way, the Veterans Affairs Whistleblowers Coalition, and many others.
AFA plans to call on White House hopefuls to sign a Presidential pledge committing themselves to implement the AFA’s ten-point plan if elected. Thus far,
Congressman Ron Paul (R-TX), the presidential candidate of the Libertarian Party, is the only candidate to sign the pledge.
Fein told Truthout he doubted Sen. Hillary Clinton would sign the pledge. “Like her husband, former President Bill Clinton, Sen. Clinton believes in a strong executive branch of government,” Fein said.
He noted that he and his colleagues are criticized by Conservatives almost as much as by Liberals. “Too many people who call themselves Conservatives have lost their way. Those who support George W. Bush’s interpretation of executive power are not democrats, they are monarchists. And liberals don’t seem to understand that people with views like ours can be conservatives,” he said.
“We have many policy disagreements with liberals and progressives, as well as within the Conservative movement. But we should have no disagreement about what the Founding Fathers had in mind when they wrote the Constitution and the Bill of Rights.” He added, “We welcome the participation and support of liberals and progressives who share that vision.”
Asked by Truthout about the current debate over so-called “activist judges,” Fein said that judicial independence was an underlying tenet of a functioning democracy. However, he added, “The solutions to most of our current problems lie not with the Courts, but with Congress. It is the responsibility of Congress to address the basic questions of executive authority and separation of powers.”
“Most people in Congress know nothing about the Constitution, have never read a Federalist paper, and are mostly concerned with currying favor with the White House and getting reelected,” he charged.
But the American voters who send representatives to Washington also bear a significant share of the responsibility for electing followers rather than leaders. “We get the government we deserve,” he said. “Our educational system has failed to teach our young people about our principles and what we stand for as a nation. Those young people grow up and vote and some of them run for public office and get elected, and they still know nothing about the principles on which government is supposed to be based.”
On the FBI National Security Letters controversy, Liberty Coalition national director Michael Ostrolenk said, "The FBI has clearly abused its power and violated the constitutional rights of tens of thousands of Americans. These actions must not be tolerated in a free society. While enhanced public scrutiny and Congressional oversight are a good first step, they are not enough to protect our Nation's liberty from abusive, unchecked power. Congress must act to stop the issuance of National Security Letters!"
National Security Letters are a controversial part of the USA Patriot Act. Civil
liberties advocates have long argued that these secret, coercive demands for
privacy records violate fundamental privacy rights. They allow the FBI to
require telephone companies, Internet service providers, banks, credit bureaus,
insurance companies and other businesses to produce highly personal records
about their customers without any evidence the person whose records are demanded has done anything wrong and without any judicial or independent check to protect individual rights. NSL recipients are placed under gag order and have no recourse to object to the FBI demands under sharp penalty of law.
A recent audit by the Inspector General of the Department of Justice found that FBI agents demanded individuals’ personal data without proper authorization and improperly obtained telephone records under the guise of "emergency" in non-emergency circumstances.
The IG’s report also found that the FBI significantly underreported to Congress for three years how it forced businesses to turn over customer data. The Justice Department also misled the American people and Congress about the explosion in the use of these intrusive demands, at one point denying investigative reporting that over 30,000 requests had been made in a single year—this report documented that, in fact, over 50,000 had been made in a year for a total of almost 150,000 in a three year period.
In his testimony, Director Mueller suggested a potential openness to using
Administrative Subpoenas in place of NSLs. Administrative Subpoenas are similar to NSLs, but have a very limited element of judicial oversight obtained after records have been obtained. Civil liberties advocates argue that the demands are also unconstitutional and are not an acceptable compromise.
"The choice between National Security Letters and Administrative Subpoenas is a false choice," Ostrlolenk said. "The Fourth Amendment demands a full and
vigorous review of Executive power by the Judiciary. Both National Security
Letters and Administrative Subpoenas are unconstitutional."
But Bruce Fein acknowledged that, with a timid and tiny Democratic majority in the House and Senate, and Republicans fearful of alienating even a greatly weakened lame-duck president, his group faces a daunting uphill battle to see its agenda enacted into law.
Leading voices in the Conservative movement are demanding that the Democrat-controlled congress restore checks and balances within the government and rein in the power President George W. Bush.
But their point of view is consistently being drowned out by the ‘Anne Coulter wing’ of the Republican Party, fed by the “ignorance of members of Congress about the principles of a Constitutional democracy.”
This is the view expressed in an exclusive interview with Truthout by Bruce Fein, who served as Associate Deputy Attorney General under President Ronald Reagan, and is a founder of a conservative movement known as the Liberty Coalition. The Coalition has launched a new initiative, known as the American Freedom Agenda. The AFA’s-point action program calls on Congress to:
• End the use of military commissions to prosecute crimes.
• Prohibit the use of secret evidence or evidence obtained by torture.
• Prohibit the detention of American citizens as enemy combatants without proof.
• Restore habeas corpus for alleged alien combatants.
• End National Security Agency warrantless wiretapping.
• Challenge presidential signing statements.
• Bar executive use of the state secret privilege to deny justice.
• Prohibit the President from collaborating with foreign governments to kidnap,
detain of torture persons abroad.
• Amend the Espionage Act to permit journalists to report on classified national
security matters without threat of persecution.
• Prohibit of the labeling of groups or individuals in the U.S. as global
terrorists based on secret evidence.
The AFA plans to draft legislation to achieve these goals and to lobby Congress to put the proposed measures on the House and Senate calendars.
The Coalition has also rebuffed the recent testimony of Federal Bureau of Investigation (FBI) Director Robert Mueller regarding the illegal use of National Security Letters (NSL's). Appearing before the Senate Judiciary Committee, Mueller acknowledged that FBI personnel had violated laws and regulations and that the Bureau had failed to create effective internal oversight controls.
Truthout asked about the enthusiastic applause that followed the intemperate remarks of right-wing author Anne Coulter at the recent annual meeting of CPAC, the Conservative Political Action Conference, in Washington, D.C. Coulter implied that Democratic presidential hopeful John Edwards was a homosexual.
Fein told Truthout, “Imbeciles like Anne Coulter play to the basest instincts of the Conservative movement to give the President a blank check to grab whatever power he wishes.”
He said the CPAC audience was composed largely of younger conservatives. Without excusing her rhetoric, Fein said that Coulter was “simply giving them a pep talk.”
He expressed disappointment with the lack of any real pushback against Presidential power by congressional Democrats. “The Democrats in Congress have done absolutely nothing to tell the president he is not a king and we do not live in a monarchy. They are allowing him to trash the Constitution because most of them know nothing about the Constitution and are concerned only with making headlines about minor issues and getting themselves reelected.”
Fein acknowledged that things were probably worse when Congress was under Republican control, “but only marginally.”
“Neither party has shown the courage to assert the power of Congress as a co-equal branch of government. Congress should be telling the president it’s not OK to detain people without trials, to grab people off the streets and ‘render’ them to other countries to be tortured, to listen in to our telephone conversations, and to issue signing statements that nullify laws he doesn’t like.”
He added, “We elect members of Congress to lead, not to follow. If they are going to lead, they need to understand the Constitution and the vision of its framers, and then have the backbone to insist that the executive branch stop usurping the responsibilities assigned to the legislative and judicial branches of our government.”
Fein’s associates in the coalition include some of the best-known and most respected names in the American Conservative movement. They include former Georgia congressman Bob Barr, political marketing guru Richard Viguery, and David Keene, who has since 1984 been the chairman of the American Conservative Union, the nation’s oldest and largest grassroots conservative lobbying organization.
Some, most notably Bob Barr, led a conservative drive last year to repeal sections of the USA Patriot Act and revise others in order to preserve civil liberties.
The Liberty Coalition includes such organizations as the American Civil Liberties Union, American Families United, Americans for Tax Reform, Amnesty International, the Arab American Institute, Association of American Physicians and Surgeons, the Bill of Rights Defense Committee,
Common Cause, Concerned Foreign Service Officers, the Drug Policy Alliance,
the Electronic Frontier Foundation, the Government Accountability Project,
MoveOn.org, the National Security Whistleblowers Coalition, People for the American Way, the Veterans Affairs Whistleblowers Coalition, and many others.
AFA plans to call on White House hopefuls to sign a Presidential pledge committing themselves to implement the AFA’s ten-point plan if elected. Thus far,
Congressman Ron Paul (R-TX), the presidential candidate of the Libertarian Party, is the only candidate to sign the pledge.
Fein told Truthout he doubted Sen. Hillary Clinton would sign the pledge. “Like her husband, former President Bill Clinton, Sen. Clinton believes in a strong executive branch of government,” Fein said.
He noted that he and his colleagues are criticized by Conservatives almost as much as by Liberals. “Too many people who call themselves Conservatives have lost their way. Those who support George W. Bush’s interpretation of executive power are not democrats, they are monarchists. And liberals don’t seem to understand that people with views like ours can be conservatives,” he said.
“We have many policy disagreements with liberals and progressives, as well as within the Conservative movement. But we should have no disagreement about what the Founding Fathers had in mind when they wrote the Constitution and the Bill of Rights.” He added, “We welcome the participation and support of liberals and progressives who share that vision.”
Asked by Truthout about the current debate over so-called “activist judges,” Fein said that judicial independence was an underlying tenet of a functioning democracy. However, he added, “The solutions to most of our current problems lie not with the Courts, but with Congress. It is the responsibility of Congress to address the basic questions of executive authority and separation of powers.”
“Most people in Congress know nothing about the Constitution, have never read a Federalist paper, and are mostly concerned with currying favor with the White House and getting reelected,” he charged.
But the American voters who send representatives to Washington also bear a significant share of the responsibility for electing followers rather than leaders. “We get the government we deserve,” he said. “Our educational system has failed to teach our young people about our principles and what we stand for as a nation. Those young people grow up and vote and some of them run for public office and get elected, and they still know nothing about the principles on which government is supposed to be based.”
On the FBI National Security Letters controversy, Liberty Coalition national director Michael Ostrolenk said, "The FBI has clearly abused its power and violated the constitutional rights of tens of thousands of Americans. These actions must not be tolerated in a free society. While enhanced public scrutiny and Congressional oversight are a good first step, they are not enough to protect our Nation's liberty from abusive, unchecked power. Congress must act to stop the issuance of National Security Letters!"
National Security Letters are a controversial part of the USA Patriot Act. Civil
liberties advocates have long argued that these secret, coercive demands for
privacy records violate fundamental privacy rights. They allow the FBI to
require telephone companies, Internet service providers, banks, credit bureaus,
insurance companies and other businesses to produce highly personal records
about their customers without any evidence the person whose records are demanded has done anything wrong and without any judicial or independent check to protect individual rights. NSL recipients are placed under gag order and have no recourse to object to the FBI demands under sharp penalty of law.
A recent audit by the Inspector General of the Department of Justice found that FBI agents demanded individuals’ personal data without proper authorization and improperly obtained telephone records under the guise of "emergency" in non-emergency circumstances.
The IG’s report also found that the FBI significantly underreported to Congress for three years how it forced businesses to turn over customer data. The Justice Department also misled the American people and Congress about the explosion in the use of these intrusive demands, at one point denying investigative reporting that over 30,000 requests had been made in a single year—this report documented that, in fact, over 50,000 had been made in a year for a total of almost 150,000 in a three year period.
In his testimony, Director Mueller suggested a potential openness to using
Administrative Subpoenas in place of NSLs. Administrative Subpoenas are similar to NSLs, but have a very limited element of judicial oversight obtained after records have been obtained. Civil liberties advocates argue that the demands are also unconstitutional and are not an acceptable compromise.
"The choice between National Security Letters and Administrative Subpoenas is a false choice," Ostrlolenk said. "The Fourth Amendment demands a full and
vigorous review of Executive power by the Judiciary. Both National Security
Letters and Administrative Subpoenas are unconstitutional."
But Bruce Fein acknowledged that, with a timid and tiny Democratic majority in the House and Senate, and Republicans fearful of alienating even a greatly weakened lame-duck president, his group faces a daunting uphill battle to see its agenda enacted into law.
Thursday, March 29, 2007
UPCOMING: BATTLE OF THE LEGAL TITANS
By William Fisher
What could turn out to be an epic battle is brewing in the US Senate. But unlike most of this chamber’s epic battles, this one pits Republican against Republican.
The battle is over the Habeas Corpus Restoration Act of 2007. The proposed legislation would repeal provisions of the Military Commissions Act of 2006 that stripped US civilian courts from jurisdiction to hear or consider applications for a writ of habeas corpus filed by aliens detained as enemy combatants.
And the protagonists are arguably two of the Senate’s sharpest legal minds: Senator Arlen Specter of Pennsylvania and Senator Lindsey Graham of South Carolina.
The principal issue in this latest chapter of the detainee drama is whether congress will, on its own, vote to reconsider a key provision of legislation it passed last year at the suggestion of the Supreme Court – or whether the case will get to the court before lawmakers have a chance to vote.
Legal advocacy organizations such as the Center for Constitutional Rights have already petitioned the high court to review the MCA, and have asked for oral arguments before summer.
Their action has been accelerated by the recent decision of a lower federal appeals court, which ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts.
The court's decision found that overruling the MCA would "defy the will of congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.
Ironically, it was a suggestion contained in a Supreme Court decision that led to “the will of congress” -- passage of the MCA. The high court had previously upheld Guantanamo detainees' right to contest their incarceration in two landmark decisions in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. That decision followed similar rulings from two lower federal appeals courts.
But in its Hamdan decision, the high court said that Congress could take further action on the issue. That action resulted in enactment of the Military Commissions Act of 2006, which stripped civilian courts of jurisdiction as well as setting up special military trials for detainees.
While the senate has been preoccupied with other issues, including the president’s request for emergency supplemental spending to fund the Iraq and Afghanistan wars, the Habeas Corpus Restoration Act of 2007 has been on hold. But now that the emergency funding bill has been passed by the senate and is on its way to a Senate-House conference committee – and then to a promised presidential veto -- congress-watchers are expecting the habeas legislation to re-emerge. That action will no doubt have been made more urgent by the guilty plea of “Australian Taliban” detainee, David Hicks, the first-ever conviction by a Military Commission at Guantanamo.
When the senate begins debating the MCA, Sens. Specter and Graham can be expected to spearhead the debate. Specter will be joined by the powerful chairman of the Senate Judiciary Committee, Sen. Patrick Leahy of Vermont, a co-sponsor of the legislation, a host of other Democrats, and a few Specter-like Republicans. Graham’s position will have the backing of most Republicans, largely conservatives.
Specter – a former prosecutor – will bolster his position with panoply of complex constitutional as well as moral arguments. But at the core of these will be a straightforward legal contention: If people under the effective control of the US have no habeas rights, why did the framers of the Constitution specify that habeas rights could only be suspended in times of invasion or armed insurrection against the government? Neither of these, he says, is present today. Specter is also likely to emphasize the negative impacts of Guantanamo and its legal failings on America’s reputation abroad.
Graham, an Air Force reserve colonel who has been a military lawyer and judge for 20 years, will take the position that prisoners of war – or those designated as enemy combatants – are not protected by the Constitution and have ever had the right to petition civilian courts to determine their reasons for being held. He is also likely to argue that federal judges are not trained to hear military cases, that hundreds of habeas petitions will clog court calendars for years, that many of the civilian judges and the lawyers involved in these proceedings do not have the necessary security clearances, and that public hearings could well compromise national security by revealing classified information.
Another MCA-repeal bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.
Sen. Specter, who frequently finds himself at odds with the administration of his own party, appears to be hedging his bets. While joining Sen. Leahy in pressing for the senate to take up the MCA-repeal legislation, Specter has meanwhile submitted a “friend of the court” brief to the Supreme Court in support of a petition for a writ of certiorari that asks the court to hear the case.
The petition was filed by the Center for Constitutional Rights, the legal advocacy organization that coordinates the work of hundreds of pro-bono lawyers who have volunteered to defend Guantanamo detainees. There are still close to 400 prisoners at the Cuban base, many of whom have long since been declared “no further threat” to the US and who are awaiting release.
In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."
Wells Dixon, an attorney with the Center for Constitutional Rights Guantánamo Global Justice Initiative, said, "We are pleased that Senator Specter has joined us in asking the Court to reaffirm the right of the detainees to challenge their detention in a court of law. This will be the third time the Court rules on this issue while our clients have languished for more than five years without a chance to prove their innocence or even, in some cases, have access to an attorney. It is time to return to the rule of law on which our country was founded."
Specter does not discount further efforts by Congress to resolve the issue but argues that the Court has a critical role to play, both in establishing what the Constitution requires and in giving the detainees the opportunity to argue the merits of their cases.
He believes the debate in Congress is ultimately not helping: "While this exchange of ideas is surely healthy and appropriate, the conversation has begun to generate diminishing returns. Meanwhile, the detainees wait, and uncertainty surrounds a fundamental constitutional principle. If the Court declines to resolve these important issues in this term, the detainees could face more than another full year in legal limbo."
Then, even if the Congress acts to repeal the habeas section of the MCA, the new legislation could well face a Bush veto – without the votes necessary to over-ride it.
Thus, Guantanamo is likely to be with us for some time to come – the issue that simply won’t go away.
What could turn out to be an epic battle is brewing in the US Senate. But unlike most of this chamber’s epic battles, this one pits Republican against Republican.
The battle is over the Habeas Corpus Restoration Act of 2007. The proposed legislation would repeal provisions of the Military Commissions Act of 2006 that stripped US civilian courts from jurisdiction to hear or consider applications for a writ of habeas corpus filed by aliens detained as enemy combatants.
And the protagonists are arguably two of the Senate’s sharpest legal minds: Senator Arlen Specter of Pennsylvania and Senator Lindsey Graham of South Carolina.
The principal issue in this latest chapter of the detainee drama is whether congress will, on its own, vote to reconsider a key provision of legislation it passed last year at the suggestion of the Supreme Court – or whether the case will get to the court before lawmakers have a chance to vote.
Legal advocacy organizations such as the Center for Constitutional Rights have already petitioned the high court to review the MCA, and have asked for oral arguments before summer.
Their action has been accelerated by the recent decision of a lower federal appeals court, which ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts.
The court's decision found that overruling the MCA would "defy the will of congress," and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.
Ironically, it was a suggestion contained in a Supreme Court decision that led to “the will of congress” -- passage of the MCA. The high court had previously upheld Guantanamo detainees' right to contest their incarceration in two landmark decisions in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. That decision followed similar rulings from two lower federal appeals courts.
But in its Hamdan decision, the high court said that Congress could take further action on the issue. That action resulted in enactment of the Military Commissions Act of 2006, which stripped civilian courts of jurisdiction as well as setting up special military trials for detainees.
While the senate has been preoccupied with other issues, including the president’s request for emergency supplemental spending to fund the Iraq and Afghanistan wars, the Habeas Corpus Restoration Act of 2007 has been on hold. But now that the emergency funding bill has been passed by the senate and is on its way to a Senate-House conference committee – and then to a promised presidential veto -- congress-watchers are expecting the habeas legislation to re-emerge. That action will no doubt have been made more urgent by the guilty plea of “Australian Taliban” detainee, David Hicks, the first-ever conviction by a Military Commission at Guantanamo.
When the senate begins debating the MCA, Sens. Specter and Graham can be expected to spearhead the debate. Specter will be joined by the powerful chairman of the Senate Judiciary Committee, Sen. Patrick Leahy of Vermont, a co-sponsor of the legislation, a host of other Democrats, and a few Specter-like Republicans. Graham’s position will have the backing of most Republicans, largely conservatives.
Specter – a former prosecutor – will bolster his position with panoply of complex constitutional as well as moral arguments. But at the core of these will be a straightforward legal contention: If people under the effective control of the US have no habeas rights, why did the framers of the Constitution specify that habeas rights could only be suspended in times of invasion or armed insurrection against the government? Neither of these, he says, is present today. Specter is also likely to emphasize the negative impacts of Guantanamo and its legal failings on America’s reputation abroad.
Graham, an Air Force reserve colonel who has been a military lawyer and judge for 20 years, will take the position that prisoners of war – or those designated as enemy combatants – are not protected by the Constitution and have ever had the right to petition civilian courts to determine their reasons for being held. He is also likely to argue that federal judges are not trained to hear military cases, that hundreds of habeas petitions will clog court calendars for years, that many of the civilian judges and the lawyers involved in these proceedings do not have the necessary security clearances, and that public hearings could well compromise national security by revealing classified information.
Another MCA-repeal bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is a candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.
Sen. Specter, who frequently finds himself at odds with the administration of his own party, appears to be hedging his bets. While joining Sen. Leahy in pressing for the senate to take up the MCA-repeal legislation, Specter has meanwhile submitted a “friend of the court” brief to the Supreme Court in support of a petition for a writ of certiorari that asks the court to hear the case.
The petition was filed by the Center for Constitutional Rights, the legal advocacy organization that coordinates the work of hundreds of pro-bono lawyers who have volunteered to defend Guantanamo detainees. There are still close to 400 prisoners at the Cuban base, many of whom have long since been declared “no further threat” to the US and who are awaiting release.
In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."
Wells Dixon, an attorney with the Center for Constitutional Rights Guantánamo Global Justice Initiative, said, "We are pleased that Senator Specter has joined us in asking the Court to reaffirm the right of the detainees to challenge their detention in a court of law. This will be the third time the Court rules on this issue while our clients have languished for more than five years without a chance to prove their innocence or even, in some cases, have access to an attorney. It is time to return to the rule of law on which our country was founded."
Specter does not discount further efforts by Congress to resolve the issue but argues that the Court has a critical role to play, both in establishing what the Constitution requires and in giving the detainees the opportunity to argue the merits of their cases.
He believes the debate in Congress is ultimately not helping: "While this exchange of ideas is surely healthy and appropriate, the conversation has begun to generate diminishing returns. Meanwhile, the detainees wait, and uncertainty surrounds a fundamental constitutional principle. If the Court declines to resolve these important issues in this term, the detainees could face more than another full year in legal limbo."
Then, even if the Congress acts to repeal the habeas section of the MCA, the new legislation could well face a Bush veto – without the votes necessary to over-ride it.
Thus, Guantanamo is likely to be with us for some time to come – the issue that simply won’t go away.
Wednesday, March 28, 2007
GITMO’S “FIRST” GETS PANNED
By William Fisher
As Australian David Hicks awaits sentencing after being the first Guantanamo detainee convicted under the Military Commissions Act, human rights organizations, legal scholars, and lawmakers, are condemning the entire MCA process and again challenging its constitutionality both in the courts and in Congress.
Earlier this week, Hicks, 31 pleaded guilty to providing material support for terrorists. He could face life imprisonment, but indications are that the U.S. may have struck a deal with the pro-Bush administration of Australian Prime Minister John Howard to have a lighter sentence imposed and to allow Hicks to serve his sentence in Australia. Howard is facing a tough campaign for re-election and the Hicks prosecution has become a major campaign issue.’’
After the tribunal judge and lawyers for both sides work out details of Hicks's plea, a full military commissions jury panel will meet to decide on a sentence.
Hicks, sometimes referred to as “the Australian Teleban”, has been in custody at Guantanamo for over five years. He was taken into custody by the U.S. military in Afghanistan in 2001 after being turned over to the Americans by the Afghan Northern Alliance, a warlord-led organization that was helping the US military. In many known cases, the Alliance received bounty payments for turning over alleged terrorists and their sympathizers. The practice has resulted in the Guantanamo detention of a number if prisoners later found to be innocent and freed. However, some of those found innocent are still being held at the Cuban base.
For most of his time in detention, Hicks was charged with no crime, and given only sporadic and restrictive access to lawyers and to his family.
Hicks’s trial has been characterized as something of a legal circus, with the colonel in charge of the court leaving many with the impression that the rules and procedures of these new bodies are still unclear.
At one point in the trial, the presiding judge, Colonel Ralph Kohlmann, ruled that one of Hicks’s civilian lawyers, including New York criminal attorney Joshua Dratel, could not represent Hicks because he had not signed a form demanded by the court saying he would conform to the regulations governing proceedings.
Dratel protested, saying he could not sign the form because the regulations governing the conduct of attorneys had not yet been formulated by the Secretary of Defense. He said he was not going to sign a blank check for his ethical obligations.
Among Judge Kohlmann’s other rulings was that an assistant to Hick’s military counsel, Marine Major Michael Mori, could not represent him because she was not a serving member of the military.
The judge also ruled in his own favor when Major Mori attempted to argue that judge Kohlmann was not impartial because he had not only effectively ruled against Hicks's defense team, but had also tried to schedule the hearing at a time when Hicks's civil lawyer was unavailable.
The judge also refused to follow the defense's suggested schedule of hearings, saying it would mean that the trial would not get underway until 2008.
Hicks offered no plea during the day’s proceedings. But late the same night, his lawyers notified the court he would plead guilty to one of the two charges against him – providing material support for terrorists. He entered no plea on the second charge – that he took part in paramilitary combat with the intent of killing American and Coalition troops. (CHECK)
As the Hicks prosecution draws to a close, the process through which it proceeded was being roundly criticized by human rights organizations, legal authorities and lawmakers.
As Mary Shaw of Amnesty International put it to IPS, “David Hicks has been detained for more than five years at Guantanamo without trial and with very limited access to his family and attorneys. He claims to have been subjected to torture and other abuses while imprisoned, but lacks the critical right to habeas corpus to challenge this treatment. Being charged and brought to trial under the hastily constructed and ill-advised military commissions system, Hicks has been denied basic rights that the United States has traditionally upheld.”
At the heart of that process is the Military Commissions Act (MCA), which was signed into law by President Bush on October 17, 2006. The act was the second attempt by the Bush administration to strip detainees of their statutory right of access to civilian courts by using habeas corpus to question the legality of their detention. This right has been twice affirmed by the Supreme Court, first in a landmark case, Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006. The act also allows for evidence obtained through torture - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an "enemy combatant."
The sentiments of Brian J. Foley, a professor at the Florida Coastal School of Law and a widely recognized constitutional lawyer, are typical of large numbers of attorneys. He told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”
He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies. As a result, our investigators lack an accurate picture of the real threat (whatever that is) and probably have an exaggerated view -- which is keeping our country in fear and wasting valuable resources and energies. Investigators are also susceptible to being toyed with by any real terrorist they've captured, who might simply send them scurrying in the opposite direction of a real attack. It's time our supposed leaders got hardheaded, and not just hard-hearted, about addressing terrorism. A tribunal system that uses only accurate evidence would be a step in that direction."
Court cases challenging the conditions of detention have been brought by lawyers representing or being coordinated by the Center for Constitutional Rights, a New York-based legal advocacy group that has mobilized hundreds of private attorneys to defend Guantanamo detainees. The CCR has again filed suit challenging the constitutionality of the MCA, particularly of the suspension of habeas corpus. If the Supreme Court decides to hear the case again, arguments would probably be heard in the spring.
And, as the high court makes its decision, US Republican Senator Arlen Specter on March 22, 2007 submitted an amicus brief to the Court in support of the CCR’s petition urging yet another court review.
In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."
Sen. Specter, a former US attorney, is the ranking member of the powerful Senate Judiciary Committee, which has jurisdiction of legislation such as the MCA. He was the committee’s chairman when the act was passed, but became its leading minority member when control of the senate passed to the Democrats as a result of the 2006 election.
Specter, considered a moderate Republican, is also locked in what promises to be an epic battle within the Congress to amend to MCA in order to restore habeas corpus rights to detainees through the Habeas Corpus Restoration Act of 2007.
The essence of Specter’s position is that if the US Constitution did not confer habeas corpus rights, it would not have said they could be suspended only in times of invasion or insurrection – neither of which applies today.
His principal adversary in this battle is Sen. Lindsey Graham, a conservative Republican from South Carolina, and one of the principal authors of the legislation. Sen. Graham maintains that no war prisoner or “enemy combatant” has ever enjoyed the right to come before a US civil court to question the basis of his detention.
The proposed new law is being strongly supported by human rights groups and legal scholars. Amnesty International, for example, told IPS, “Amnesty International urges all members of Congress to take a significant first step in restoring U.S. leadership on human rights by supporting (the proposed law), to return habeas rights to people in U.S. custody.
The view of most opponents of the government’s current system is summed up by a CCR spokesperson:
"The military commissions are illegal under U.S. and international law for many reasons, most important that they allow the admission of evidence obtained through torture and other coercion. Two of Mr. Hicks' attorneys were barred from the proceedings yesterday. According to his family and his lawyers, he is deeply depressed. It is likely he pled guilty to the charge of providing material support in order to be able to serve his time in Australia and leave the black hole that is Guantánamo.
"Hick's guilty plea should not be seen as legitimizing in any way an utterly illegal system of off-shore penal colonies, abuse, and 'trials' that violate fundamental due process rights. If Hicks is to be tried, he could and should be tried in a real court - as the U.S. has done with similar charges in the past. What really were Hick's choices?
"This is the first military commission to be held - out of 800 detainees, only 10 were ever designated to be charged and that number has dropped to three at present. There remain 385 men at Guantánamo that the government has never shown it had a reason to hold, who have been held indefinitely with no hope of being able to prove their innocence. This is a deeply flawed process whose rules change at the will of the government with no guarantees of due process or the rule of law."
As Australian David Hicks awaits sentencing after being the first Guantanamo detainee convicted under the Military Commissions Act, human rights organizations, legal scholars, and lawmakers, are condemning the entire MCA process and again challenging its constitutionality both in the courts and in Congress.
Earlier this week, Hicks, 31 pleaded guilty to providing material support for terrorists. He could face life imprisonment, but indications are that the U.S. may have struck a deal with the pro-Bush administration of Australian Prime Minister John Howard to have a lighter sentence imposed and to allow Hicks to serve his sentence in Australia. Howard is facing a tough campaign for re-election and the Hicks prosecution has become a major campaign issue.’’
After the tribunal judge and lawyers for both sides work out details of Hicks's plea, a full military commissions jury panel will meet to decide on a sentence.
Hicks, sometimes referred to as “the Australian Teleban”, has been in custody at Guantanamo for over five years. He was taken into custody by the U.S. military in Afghanistan in 2001 after being turned over to the Americans by the Afghan Northern Alliance, a warlord-led organization that was helping the US military. In many known cases, the Alliance received bounty payments for turning over alleged terrorists and their sympathizers. The practice has resulted in the Guantanamo detention of a number if prisoners later found to be innocent and freed. However, some of those found innocent are still being held at the Cuban base.
For most of his time in detention, Hicks was charged with no crime, and given only sporadic and restrictive access to lawyers and to his family.
Hicks’s trial has been characterized as something of a legal circus, with the colonel in charge of the court leaving many with the impression that the rules and procedures of these new bodies are still unclear.
At one point in the trial, the presiding judge, Colonel Ralph Kohlmann, ruled that one of Hicks’s civilian lawyers, including New York criminal attorney Joshua Dratel, could not represent Hicks because he had not signed a form demanded by the court saying he would conform to the regulations governing proceedings.
Dratel protested, saying he could not sign the form because the regulations governing the conduct of attorneys had not yet been formulated by the Secretary of Defense. He said he was not going to sign a blank check for his ethical obligations.
Among Judge Kohlmann’s other rulings was that an assistant to Hick’s military counsel, Marine Major Michael Mori, could not represent him because she was not a serving member of the military.
The judge also ruled in his own favor when Major Mori attempted to argue that judge Kohlmann was not impartial because he had not only effectively ruled against Hicks's defense team, but had also tried to schedule the hearing at a time when Hicks's civil lawyer was unavailable.
The judge also refused to follow the defense's suggested schedule of hearings, saying it would mean that the trial would not get underway until 2008.
Hicks offered no plea during the day’s proceedings. But late the same night, his lawyers notified the court he would plead guilty to one of the two charges against him – providing material support for terrorists. He entered no plea on the second charge – that he took part in paramilitary combat with the intent of killing American and Coalition troops. (CHECK)
As the Hicks prosecution draws to a close, the process through which it proceeded was being roundly criticized by human rights organizations, legal authorities and lawmakers.
As Mary Shaw of Amnesty International put it to IPS, “David Hicks has been detained for more than five years at Guantanamo without trial and with very limited access to his family and attorneys. He claims to have been subjected to torture and other abuses while imprisoned, but lacks the critical right to habeas corpus to challenge this treatment. Being charged and brought to trial under the hastily constructed and ill-advised military commissions system, Hicks has been denied basic rights that the United States has traditionally upheld.”
At the heart of that process is the Military Commissions Act (MCA), which was signed into law by President Bush on October 17, 2006. The act was the second attempt by the Bush administration to strip detainees of their statutory right of access to civilian courts by using habeas corpus to question the legality of their detention. This right has been twice affirmed by the Supreme Court, first in a landmark case, Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006. The act also allows for evidence obtained through torture - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an "enemy combatant."
The sentiments of Brian J. Foley, a professor at the Florida Coastal School of Law and a widely recognized constitutional lawyer, are typical of large numbers of attorneys. He told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”
He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies. As a result, our investigators lack an accurate picture of the real threat (whatever that is) and probably have an exaggerated view -- which is keeping our country in fear and wasting valuable resources and energies. Investigators are also susceptible to being toyed with by any real terrorist they've captured, who might simply send them scurrying in the opposite direction of a real attack. It's time our supposed leaders got hardheaded, and not just hard-hearted, about addressing terrorism. A tribunal system that uses only accurate evidence would be a step in that direction."
Court cases challenging the conditions of detention have been brought by lawyers representing or being coordinated by the Center for Constitutional Rights, a New York-based legal advocacy group that has mobilized hundreds of private attorneys to defend Guantanamo detainees. The CCR has again filed suit challenging the constitutionality of the MCA, particularly of the suspension of habeas corpus. If the Supreme Court decides to hear the case again, arguments would probably be heard in the spring.
And, as the high court makes its decision, US Republican Senator Arlen Specter on March 22, 2007 submitted an amicus brief to the Court in support of the CCR’s petition urging yet another court review.
In his brief, Senator Specter writes, "Congress has struggled with the important constitutional questions presented in these cases. The arguments have been aired and re-aired. The time is ripe for this Court to address the constitutional infirmity of the MCA's attempt to curtail the right of habeas corpus. Habeas must be restored to ensure that the rule of law prevails at Guantánamo."
Sen. Specter, a former US attorney, is the ranking member of the powerful Senate Judiciary Committee, which has jurisdiction of legislation such as the MCA. He was the committee’s chairman when the act was passed, but became its leading minority member when control of the senate passed to the Democrats as a result of the 2006 election.
Specter, considered a moderate Republican, is also locked in what promises to be an epic battle within the Congress to amend to MCA in order to restore habeas corpus rights to detainees through the Habeas Corpus Restoration Act of 2007.
The essence of Specter’s position is that if the US Constitution did not confer habeas corpus rights, it would not have said they could be suspended only in times of invasion or insurrection – neither of which applies today.
His principal adversary in this battle is Sen. Lindsey Graham, a conservative Republican from South Carolina, and one of the principal authors of the legislation. Sen. Graham maintains that no war prisoner or “enemy combatant” has ever enjoyed the right to come before a US civil court to question the basis of his detention.
The proposed new law is being strongly supported by human rights groups and legal scholars. Amnesty International, for example, told IPS, “Amnesty International urges all members of Congress to take a significant first step in restoring U.S. leadership on human rights by supporting (the proposed law), to return habeas rights to people in U.S. custody.
The view of most opponents of the government’s current system is summed up by a CCR spokesperson:
"The military commissions are illegal under U.S. and international law for many reasons, most important that they allow the admission of evidence obtained through torture and other coercion. Two of Mr. Hicks' attorneys were barred from the proceedings yesterday. According to his family and his lawyers, he is deeply depressed. It is likely he pled guilty to the charge of providing material support in order to be able to serve his time in Australia and leave the black hole that is Guantánamo.
"Hick's guilty plea should not be seen as legitimizing in any way an utterly illegal system of off-shore penal colonies, abuse, and 'trials' that violate fundamental due process rights. If Hicks is to be tried, he could and should be tried in a real court - as the U.S. has done with similar charges in the past. What really were Hick's choices?
"This is the first military commission to be held - out of 800 detainees, only 10 were ever designated to be charged and that number has dropped to three at present. There remain 385 men at Guantánamo that the government has never shown it had a reason to hold, who have been held indefinitely with no hope of being able to prove their innocence. This is a deeply flawed process whose rules change at the will of the government with no guarantees of due process or the rule of law."
Friday, March 16, 2007
HOUSE EXPANDS WHISTLEBLOWER PROTECTIONS
By William Fisher
For the past six years, Rep. Henry Waxman has looked like a man desperately in need of anti-depressant medication.
As the ranking minority member of the House Oversight and Government Reform Committee, the California Democrat was thwarted by his Republican colleagues in virtually every effort to exercise Congressional oversight into Bush Administration secrecy, waste, fraud, and abuse.
But this week the balding, diminutive bulldog of the House looked like a new grandpa eager to hand out cigars.
Mr. Waxman’s magical transformation turned on four words: November (when his party won control of both houses of congress); chairman (to which he was elevated by the election results); subpoena (the legal power to summon reluctant witnesses to testify at hearings, an authority reserved to the majority); and control (the power of the majority party to determine which issues get voted on the floor of the House and which ones die).
On that floor this week, Waxman led a successful charge for passage of no less than five bills designed to pull back the curtain of secrecy that has been a hallmark of the Bush Administration. Most of these bills had been languishing for years. All passed the House with varying degrees of Republican support.
The legislation included: The Whistleblower Protection Enhancement Act, which extends whistleblower protections to federal workers and contractors who specialize in national security issues; the Presidential Library Donation Reform Act, which requires that all organizations established for the purpose of raising funds for presidential libraries or their related facilities report on a quarterly basis all contributions of $200 or more; the Freedom of Information Act Amendments, which contains a dozen substantive provisions designed to increase public access to government information by strengthening the Freedom of Information Act (FOIA); and the Accountability in Contracting Act, which limits the length of noncompetitive contracts, minimizes no-bid and cost-plus contracts, requires public disclosure of justifications for no-bid contracts and disclosure of contractor overcharges, and provides additional funding for contract oversight.
Arguably, the Whistleblower Protection measure has been the most contentious. While there has been protection for whistleblowers who are federal employees, this has not covered those who work in agencies that deal with national security issues.
Both the House and Senate have held numerous hearings featuring testimony chronicling the travails of these whistleblowers – ranging from revocation of their security clearances to dismissal. But neither body has enacted legislation on the subject.
The five Waxman bills now go on to the Senate. Legislation similar to some of the five have been introduced in previous congresses, but never debated or passed. Congressional observers give this new legislation more than a fighting chance of passage.
However, President Bush has already signaled that he will veto the whistleblowers’ legislation. A memo to the committee from the Office of Management and Budget says, “It could compromise national security, is unconstitutional, and is overly burdensome and unnecessary.”
The bill, OMB says, “would expand, for the first time, whistleblower protections to employees at national security agencies who disclose classified information to Congress. H.R. 985 would permit an employee to make an individualized determination – without further review and perhaps without all relevant information – to disclose classified information. Such an independent, uncoordinated decision to disclose classified information could jeopardize not only national security programs, but also the security of the people involved in such programs.”
OMB adds, “Rather than promote and protect genuine disclosures of matters of real public concern, it would likely increase the number of frivolous complaints and waste resources. If (the bill) were presented to the President, his senior advisors would recommend that he veto the bill.”
Waxman’s committee takes a decidedly different view. “These are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified information on a routine basis. Our own government has concluded that they can be trusted to work on the most sensitive law enforcement and intelligence projects. This bill would finally give these courageous individuals the protection they deserve, ”the panel says.
The proposed legislation would also ensure that employees who work for companies with government contracts are protected when they report waste, fraud, and abuse of U.S. taxpayer dollars. Existing legal protections for these employees are deficient, and often they fear that reporting an abuse of taxpayer dollars will cost them their jobs.
Another provision includes a clarification regarding disclosure of actions that threaten the integrity of federal science. Over the last few years, the politicization of science has been rampant. It is important that employees who see such examples know that they are eligible for whistleblower protection, and that our science-based agencies get the clear message that retaliating against these employees is unacceptable.
The bill responds to court decisions by the U.S. Court of Appeals for the Federal Circuit limiting the scope of disclosures protected under current law. It clarifies that “any” disclosure regarding waste, fraud, or abuse means “without restriction as to time, place, form, motive, context, or prior disclosure” and includes formal or informal communication. The bill also provides that a whistleblower can rebut the presumption that a federal official performed his or her duties in accordance with the law by providing substantial evidence to the contrary. The Federal Circuit has required a higher standard, irrefutable proof, to rebut this presumption. Furthermore, the bill allows whistleblowers access to federal district courts if the Merit Systems Protection Board (MSPB) does not take action on their claims within 180 days.
Testimony previously presented to Congress highlights the dilemma facing national security whistleblowers. It is a litany of retaliations taken against people who have spoken out about abuse of Iraqi prisoners at Abu Ghraib, illicit federal wiretapping, and other alleged misconduct.
Perhaps the most high-profile example is Sibel Edmonds. She began working for the FBI shortly after the Sept. 11 attacks, translating top-secret documents pertaining to suspected terrorists. She was fired in the spring of 2002 after reporting concerns about sabotage, intimidation, corruption, and incompetence to superiors. In October 2002, at the request of FBI Director Robert Mueller, then Attorney General John Ashcroft imposed a gag order on Ms. Edmonds, citing possible damage to diplomatic relations or national security. Ms. Edmonds sued and appealed her case all the way to the Supreme Court. But the high court agreed with lower courts that trying her case would compromise “state secrets.”
Ms. Edmonds is the founder of the National Security Whistleblowers Coalition (NSWBC). She told us, “National Security employees’ should not have to sacrifice their careers or financial security in doing what is right. Good employees are being chased out of jobs and fired by those who either are engaged in wrongful behavior or don’t want to hear about.”
She added, “A national security employee has to choose between career and conscience when confronted with agency wrongdoing. We need to adopt protections for employees that allow them to be secure in their jobs and encourage them to report waste, fraud, and abuse of power.”
The stories congress has heard from others are equally troublesome. For example:
Specialist Samuel Provance said he was demoted and humiliated after telling a general investigating the Abu Ghraib scandal that senior officers had covered up detainee abuses at Abu Ghraib. He said he tried to tell the general “things he didn’t want to hear,” adding, "Young soldiers were scapegoated while superiors misrepresented what had happened and tried to misdirect attention away from what was really going on." Provance lost his security clearance, was placed under a “gag order,” and is now stationed in Germany, where his responsibilities consist of "picking up trash and guard duty.”
Lt. Col. Anthony Shaffer was among the first to allege that the Pentagon ran a data-mining program known as “Able Danger.” He said he believes that the program identified Mohammed Atta before he became the lead hijacker in the 2001 terrorist attacks, though a Pentagon review found no evidence to support that conclusion. Shaffer’s security clearance was revoked.
Russell Tice, a former intelligence officer at the National Security Agency (NSA), charged that there were "illegalities and unconstitutional activity" in the agency’s so-called ‘special-access programs’ but was advised that he could not discuss them even with members of the Senate and House Intelligence Committees in closed session. He told the Committee the Defense Department’s harassment of him included spreading rumors that he suffers from bipolar disease.
Mike German resigned as an FBI agent after reporting that other agents and managers mishandled a major counterterrorism case in 2002 and falsified records. The Justice Department inspector general confirmed German's allegations, and that he was retaliated against – his security clearance was revoked.
Richard Levernier's job as a senior Department of Energy nuclear security specialist was to test how well prepared America's nuclear weapons sites were to defend against a terrorist attack. He testified that the tests he supervised showed a 50 percent failure rate. When he reported this to his superiors, he was demoted and his security clearance revoked. He says he was forced into early retirement.
Bunnatine H. "Bunny" Greenhouse, the senior contracting officer for the Army Corps of Engineers, objected -- first, internally, then publicly -- to a multi-billion dollar, no-bid contract with the Halliburton Company for work in Iraq. She was removed from the senior executive service, the top rank of civilian government employees, because of “poor performance reviews.” But Greenhouse's attorney, Michael D. Kohn, says the performance reviews "were conducted by the very subjects" of Greenhouse's allegations…” Greenhouse went public with her concerns over the volume of Iraq-related work given to Halliburton by the Corps without competition, but her complaints within the agency were ignored. She started gave interviews to national publications and testified before a Democrat-sponsored Capitol Hill event on contracting in Iraq.
"I can unequivocally state that the abuse related to contracts awarded to (Halliburton subsidiary) KBR represents the most blatant and improper abuse I have witnessed" in 20 years working on government contracts, Greenhouse said.
All these witnesses said they tried to follow the chain of command for reporting wrongdoing, but were rebuffed or stonewalled. Some started by going to their immediate supervisors; others went to the Inspectors General of their agencies; a few eventually told their stories to congresspersons or to the media.
The timing of the House vote on the Waxman legislation could not have been more appropriate. It came during Sunshine Week, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, non-profits, schools and others interested in the public's right to know.
Whether the Bush Administration supports that right remains to be seen.
For the past six years, Rep. Henry Waxman has looked like a man desperately in need of anti-depressant medication.
As the ranking minority member of the House Oversight and Government Reform Committee, the California Democrat was thwarted by his Republican colleagues in virtually every effort to exercise Congressional oversight into Bush Administration secrecy, waste, fraud, and abuse.
But this week the balding, diminutive bulldog of the House looked like a new grandpa eager to hand out cigars.
Mr. Waxman’s magical transformation turned on four words: November (when his party won control of both houses of congress); chairman (to which he was elevated by the election results); subpoena (the legal power to summon reluctant witnesses to testify at hearings, an authority reserved to the majority); and control (the power of the majority party to determine which issues get voted on the floor of the House and which ones die).
On that floor this week, Waxman led a successful charge for passage of no less than five bills designed to pull back the curtain of secrecy that has been a hallmark of the Bush Administration. Most of these bills had been languishing for years. All passed the House with varying degrees of Republican support.
The legislation included: The Whistleblower Protection Enhancement Act, which extends whistleblower protections to federal workers and contractors who specialize in national security issues; the Presidential Library Donation Reform Act, which requires that all organizations established for the purpose of raising funds for presidential libraries or their related facilities report on a quarterly basis all contributions of $200 or more; the Freedom of Information Act Amendments, which contains a dozen substantive provisions designed to increase public access to government information by strengthening the Freedom of Information Act (FOIA); and the Accountability in Contracting Act, which limits the length of noncompetitive contracts, minimizes no-bid and cost-plus contracts, requires public disclosure of justifications for no-bid contracts and disclosure of contractor overcharges, and provides additional funding for contract oversight.
Arguably, the Whistleblower Protection measure has been the most contentious. While there has been protection for whistleblowers who are federal employees, this has not covered those who work in agencies that deal with national security issues.
Both the House and Senate have held numerous hearings featuring testimony chronicling the travails of these whistleblowers – ranging from revocation of their security clearances to dismissal. But neither body has enacted legislation on the subject.
The five Waxman bills now go on to the Senate. Legislation similar to some of the five have been introduced in previous congresses, but never debated or passed. Congressional observers give this new legislation more than a fighting chance of passage.
However, President Bush has already signaled that he will veto the whistleblowers’ legislation. A memo to the committee from the Office of Management and Budget says, “It could compromise national security, is unconstitutional, and is overly burdensome and unnecessary.”
The bill, OMB says, “would expand, for the first time, whistleblower protections to employees at national security agencies who disclose classified information to Congress. H.R. 985 would permit an employee to make an individualized determination – without further review and perhaps without all relevant information – to disclose classified information. Such an independent, uncoordinated decision to disclose classified information could jeopardize not only national security programs, but also the security of the people involved in such programs.”
OMB adds, “Rather than promote and protect genuine disclosures of matters of real public concern, it would likely increase the number of frivolous complaints and waste resources. If (the bill) were presented to the President, his senior advisors would recommend that he veto the bill.”
Waxman’s committee takes a decidedly different view. “These are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified information on a routine basis. Our own government has concluded that they can be trusted to work on the most sensitive law enforcement and intelligence projects. This bill would finally give these courageous individuals the protection they deserve, ”the panel says.
The proposed legislation would also ensure that employees who work for companies with government contracts are protected when they report waste, fraud, and abuse of U.S. taxpayer dollars. Existing legal protections for these employees are deficient, and often they fear that reporting an abuse of taxpayer dollars will cost them their jobs.
Another provision includes a clarification regarding disclosure of actions that threaten the integrity of federal science. Over the last few years, the politicization of science has been rampant. It is important that employees who see such examples know that they are eligible for whistleblower protection, and that our science-based agencies get the clear message that retaliating against these employees is unacceptable.
The bill responds to court decisions by the U.S. Court of Appeals for the Federal Circuit limiting the scope of disclosures protected under current law. It clarifies that “any” disclosure regarding waste, fraud, or abuse means “without restriction as to time, place, form, motive, context, or prior disclosure” and includes formal or informal communication. The bill also provides that a whistleblower can rebut the presumption that a federal official performed his or her duties in accordance with the law by providing substantial evidence to the contrary. The Federal Circuit has required a higher standard, irrefutable proof, to rebut this presumption. Furthermore, the bill allows whistleblowers access to federal district courts if the Merit Systems Protection Board (MSPB) does not take action on their claims within 180 days.
Testimony previously presented to Congress highlights the dilemma facing national security whistleblowers. It is a litany of retaliations taken against people who have spoken out about abuse of Iraqi prisoners at Abu Ghraib, illicit federal wiretapping, and other alleged misconduct.
Perhaps the most high-profile example is Sibel Edmonds. She began working for the FBI shortly after the Sept. 11 attacks, translating top-secret documents pertaining to suspected terrorists. She was fired in the spring of 2002 after reporting concerns about sabotage, intimidation, corruption, and incompetence to superiors. In October 2002, at the request of FBI Director Robert Mueller, then Attorney General John Ashcroft imposed a gag order on Ms. Edmonds, citing possible damage to diplomatic relations or national security. Ms. Edmonds sued and appealed her case all the way to the Supreme Court. But the high court agreed with lower courts that trying her case would compromise “state secrets.”
Ms. Edmonds is the founder of the National Security Whistleblowers Coalition (NSWBC). She told us, “National Security employees’ should not have to sacrifice their careers or financial security in doing what is right. Good employees are being chased out of jobs and fired by those who either are engaged in wrongful behavior or don’t want to hear about.”
She added, “A national security employee has to choose between career and conscience when confronted with agency wrongdoing. We need to adopt protections for employees that allow them to be secure in their jobs and encourage them to report waste, fraud, and abuse of power.”
The stories congress has heard from others are equally troublesome. For example:
Specialist Samuel Provance said he was demoted and humiliated after telling a general investigating the Abu Ghraib scandal that senior officers had covered up detainee abuses at Abu Ghraib. He said he tried to tell the general “things he didn’t want to hear,” adding, "Young soldiers were scapegoated while superiors misrepresented what had happened and tried to misdirect attention away from what was really going on." Provance lost his security clearance, was placed under a “gag order,” and is now stationed in Germany, where his responsibilities consist of "picking up trash and guard duty.”
Lt. Col. Anthony Shaffer was among the first to allege that the Pentagon ran a data-mining program known as “Able Danger.” He said he believes that the program identified Mohammed Atta before he became the lead hijacker in the 2001 terrorist attacks, though a Pentagon review found no evidence to support that conclusion. Shaffer’s security clearance was revoked.
Russell Tice, a former intelligence officer at the National Security Agency (NSA), charged that there were "illegalities and unconstitutional activity" in the agency’s so-called ‘special-access programs’ but was advised that he could not discuss them even with members of the Senate and House Intelligence Committees in closed session. He told the Committee the Defense Department’s harassment of him included spreading rumors that he suffers from bipolar disease.
Mike German resigned as an FBI agent after reporting that other agents and managers mishandled a major counterterrorism case in 2002 and falsified records. The Justice Department inspector general confirmed German's allegations, and that he was retaliated against – his security clearance was revoked.
Richard Levernier's job as a senior Department of Energy nuclear security specialist was to test how well prepared America's nuclear weapons sites were to defend against a terrorist attack. He testified that the tests he supervised showed a 50 percent failure rate. When he reported this to his superiors, he was demoted and his security clearance revoked. He says he was forced into early retirement.
Bunnatine H. "Bunny" Greenhouse, the senior contracting officer for the Army Corps of Engineers, objected -- first, internally, then publicly -- to a multi-billion dollar, no-bid contract with the Halliburton Company for work in Iraq. She was removed from the senior executive service, the top rank of civilian government employees, because of “poor performance reviews.” But Greenhouse's attorney, Michael D. Kohn, says the performance reviews "were conducted by the very subjects" of Greenhouse's allegations…” Greenhouse went public with her concerns over the volume of Iraq-related work given to Halliburton by the Corps without competition, but her complaints within the agency were ignored. She started gave interviews to national publications and testified before a Democrat-sponsored Capitol Hill event on contracting in Iraq.
"I can unequivocally state that the abuse related to contracts awarded to (Halliburton subsidiary) KBR represents the most blatant and improper abuse I have witnessed" in 20 years working on government contracts, Greenhouse said.
All these witnesses said they tried to follow the chain of command for reporting wrongdoing, but were rebuffed or stonewalled. Some started by going to their immediate supervisors; others went to the Inspectors General of their agencies; a few eventually told their stories to congresspersons or to the media.
The timing of the House vote on the Waxman legislation could not have been more appropriate. It came during Sunshine Week, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, non-profits, schools and others interested in the public's right to know.
Whether the Bush Administration supports that right remains to be seen.
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