By William Fisher
Who should we blame for retired military men getting themselves hired by TV networks to be talking head cheerleaders for “progress” in Iraq? The Pentagon? The media? Our elected officials and presidential wanabees? The public?
I think my friend Steven Aftergood has it just about right. Here’s what he told me:
“It is unrealistic to expect the Pentagon to do anything other than to advance its own institutional interests in the media and elsewhere. Furthermore, it is not surprising when retired career military officers present a perspective that coincides with that of their former cohort.”
But he added, “Two things are disturbing, however. One is the secret, unacknowledged coordination between the Pentagon and the purportedly independent spokespersons. That stinks. But what’s worse is the failure of the media to come to terms with the way it was manipulated. Media organizations are supposed to be skeptical of authority, and evenhanded in their approach to public policy issues. This story illustrates how badly they failed to justify the public trust.”
But is this shameful compromising of our media just another one-news-cycle story? Maybe not. I think this story should still has some legs left.
Witness what some in Congress are doing.
As America’s television networks continued their silence about their use of retired military officers to “sell” progress in Iraq, members of the U.S. House of Representatives called on the Defense Department Inspector General to investigate the Pentagon-sponsored public relations effort.
Rep. Rosa DeLauro, a Connecticut Democrat, and 40 others members of Congress, called on the Inspector General (IG) to investigate how high-ranking officials within the Defense Department were allowed to operate a program “aimed at deceiving the American people.”
"When the Department of Defense misleads the American people by having them believe that they are listening to the views of objective military analysts when in fact these individuals are simply replaying DoD talking points, the department is clearly betraying the public trust," the lawmakers wrote in a joint letter to Defense Department Inspector General Claude M. Kicklighter.
"Not only must the Inspector General now account for what it did and did not know about this state-sponsored propaganda effort, but they must also explain why, if they knew about the propaganda campaign, it was allowed to proceed," DeLauro said.
"Additionally, we are calling for the Inspector General to launch an investigation to ensure no detail surrounding this program remains hidden," she added. The House members also want to know if the inspector general considers the program to be illegal.
Retired officers who acted as military analysts for major news outlets were given V.I.P. access to the Pentagon, with regular briefings by then-Defense Secretary Donald Rumsfeld and a sponsored trip to the Guantanamo Bay military prison in Cuba.
The operation was abruptly halted after it was reported by The New York Times. The times” massive probe revealed that some 75 retired military officers, prepped by the Pentagon, served as paid television commentators since the run-up to the Iraq war -- and many also have conflicting ties to defense contractors. These business links were seldom disclosed to viewers, and sometimes not even to the networks on which they appeared, the newspaper said.
The Times report said the officers got private briefings, trips and access to classified intelligence meant to influence their comments.
"Records and interviews show how the Bush administration has used its control over access and information in an effort to transform the analysts into a kind of media Trojan horse -- an instrument intended to shape terrorism coverage from inside the major TV and radio networks," the newspaper wrote.
The Pentagon defended its work with the analysts, saying they were given only accurate information.
Ken Allard, a retired Army colonel, pointed out in the Times article that it was “sometimes enough just for the Pentagon's cynical commissars to make retirees feel important, to give them a sense that they were still players.” For other so-called “talking heads,” pleasing the Pentagon was strictly mercenary.
The Times’ revelations have sparked a serious backlash among many journalists and advocates of more transparency in government. But despite an avalanche of similar criticism throughout the blogosphere, and by a handful of journalism veterans and critics, the news chiefs and on-air hosts at CNN, FOX, ABC, NBC, and CBS, have had little reaction to the revelations concerning the "Media Generals." Most declined to comment publicly, but have ceased using the officers on-air. Some are reportedly tightening their guidelines for hiring military commentators.
This is not the first time the Pentagon has engaged in concealed efforts to influence public opinion. In December 2005, at the beginning of the insurgency in Iraq, media reports revealed that a contractor to the Defense Department was paying off Iraqi journalists to write “good news” stories about American progress there.
The Pentagon carried out the effort as part of an organized and well-funded program, and did so in secret. The Los Angeles Times broke the story.
Irony or ironies -- the Defense Department scheme was being carried out at the same time the State Department's exchange program was working to teach foreign journalists about the role and responsibility of a free press.
Some critics saw this as the worst aspect of this situation because it added to the perception of U.S. hypocrisy -- at a time when the government is spending millions of dollars trying to "win hearts and minds" around the world.
Only one senior administration official commented on the “Iraq Payola” scheme. Appearing on ABC's "This Week" program, National Security Adviser Stephen Hadley joined Iraqi journalists in the view that, if the DOD investigation supported the allegations, the idea was bad policy and should be stopped. It is unclear whether the program remains in operation.
Earlier, the media uncovered another DOD program known as "Total Information Awareness." TIA was an advanced form of "data mining," that would have effectively provided government officials immediate access to personal information such as phone calls, e-mails and Web searches, financial records, purchases, prescriptions, school and medical records and travel history.
Disclosure of the program triggered a furor among the public and in Congress and it was shut down. But nobody was fired or reprimanded.
As shameful as this episode surely is, another friend sounds an even more ominous note. Majorie Cohn, president of the National Lawyers Guild, looked back at the run-up to the U.S. invasion of Iraq, and told me:
“During the run-up to the war on Iraq, the Pentagon gave its ‘analysts’ talking points: Iraq has chemical and biological weapons; Iraq is developing nukes; Iraq could give its WMD to Al Qaeda; and an invasion would be quick and cheap. This disinformation campaign was designed to condition Congress and the American people to accept Bush's illegal and unnecessary invasion of Iraq.”
Now, she said, “we are seeing the same pattern as many in the Bush administration prepare for an attack on Iran. Petraeus, Crocker, Gates, Bush and Cheney are mouthing the mantra that Iran has nukes and is a danger to America. Watch for other ‘analysts’ to parrot this line. Since there appears to be a split in the administration about the wisdom of such an attack, public pressure could tilt the balance away from war.”
Let us pray!
In the 1930s, the man considered to be the “father of modern public relations”, Edward L. Bernays, wrote a book called “The Engineering of Consent.” His thesis was that ideas and attitudes can be shaped by messages communicated time and time and time again – enhanced by so-called “third part endorsement” – such as that conveniently provided by retired generals and colonels.
The run-up to the Iraq invasion provided the beautiful evidence to support that thesis. And if you think Bernays is some relic from the past, think again.
The Bernays Doctrine is alive and well – and living in the White House and the Pentagon.
Thursday, May 08, 2008
Wednesday, May 07, 2008
Abuse Claims Rise Against Pentagon, Contractors
By William Fisher
As human rights groups demanded the release of a report on a long-running investigation of the role of the Federal Bureau of Investigation (FBI) in the unlawful interrogations of detainees in Iraq, Afghanistan and Guantánamo Bay, new torture claims were leveled at two U.S. military contractors by a former Abu Ghraib “ghost” detainee who was wrongly imprisoned and later released without charge.
The American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request this week with the Departments of Justice and Defense demanding release of a report by the Justice Department's Inspector General (OIG), which the group says has been completed for months but blocked by the Defense Department.
The OIG investigation was initiated in 2005 after the ACLU obtained documents in which FBI agents described interrogations that they had witnessed at Guantánamo Bay.
While the documents were most notable for their description of illegal interrogation methods used by military interrogators, they also raised serious questions about the FBI's participation in abusive interrogations, the actions of FBI personnel who witnessed abusive interrogations, and the response of FBI officials to reports of abuse.
Testifying before a Congressional committee last week, FBI Director Robert Mueller denied that the FBI participated in any of the interrogations. The Defense Department has said the OIG’s report must be reviewed and redacted to eliminate classified information before it can be made public.
The OIG report and all documents related to this investigation is part of a broader effort to uncover information about the Bush administration's torture policies. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA
lawsuit enforcing the request -- including the Bush administration's 2003 "torture memo" written by John Yoo when he was a deputy at the DOJ's Office of Legal Counsel.
This week, Yoo – under threat of subpoena -- agreed to testify voluntarily before a congressional committee investigating the legal basis used to justify the Bush Administration’s torture policies.
Jameel Jaffer, Director of the ACLU’s National Security Project, told us, “The Inspector General completed this report many months ago. The problem is with the Defense Department, which is using its classification review as a pretext for delaying the report's release. In this case as in many others, the Defense Department is misusing its classification authority to suppress information about the abuse and torture of prisoners.”
“There's no good reason why the report should be withheld from the public. It's being withheld not for legitimate security reasons, but in order to protect high-level government officials from embarrassment, criticism, and possibly even criminal prosecution,” he said.
In related developments, the Center for Constitutional Rights (CCR), an advocacy group, leveled new torture claims against two U.S. military contractors by a former Abu Ghraib “ghost” detainee, and labeled as “wholly inadequate” a single page unclassified summary of the OIG’s report released on the case of Maher Arar, the Canadian rendition victim “rendered” by U.S. authorities to be tortured in Syria for ten months more than five years ago.
In a letter to the OIG, CCR lawyers contrasted the one-page summary with the Canadian public inquiry, which released two public reports after a two-year investigation. The Canadian Government issued a formal apology to Arar and paid him $10 million. It was the Royal Canadian Mounted Police (RCMP) that provided U.S. authorities with information that Arar was a suspected terrorist .
Arar attempted to sue the U.S. Government, but his case was dismissed after the government invoked the so-called “state secrets privilege,” which bars from the courts information that would compromise national security.
The letter charges that the delay of the OIG report’s release has been reportedly “due to efforts by very senior Department of Justice (DOJ) officials to suppress it” because it would expose “serious misconduct”. It added that “the continued delay in releasing report calls into serious question the independence of the DHS OIG.”
Arar said, “By suppressing the report and issuing one page of publicly available information, this U.S. administration adds insult to injury. This ‘summary’ raises more questions than answers about the government’s behavior, and does not answer the central question— why I was sent to Syria to be tortured. ”
The suit against the contactors, filed last week in Los Angeles federal court on behalf of Emad Al-Janabi, a 43-year-old Iraqi blacksmith, alleges that Al-Janabi was wrongly imprisoned, beaten and forced from his home by people in U.S. military uniforms and civilian clothing in September 2003. He was released from Abu Ghraib without charge in July 2004.
The defendants are contractors CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Communications Titan Corporation, of San Diego, Calif.; and former CACI contractor Steven Stefanowicz, a Los Angeles resident known at Abu Ghraib as “Big Steve.”
The suit charges that the contractors subjected Al-Janabi to physical and mental torture in sessions where the defendants acted as interrogators and translators. It alleges the contractors transported him to a detainee site in a wooden box and covered with a hood; scarred on his face when his eyes were clawed by an interrogator; exposed him to a mock execution of his brother and nephew; hung upside down with his feet chained to the steel slats of a bunk bed until he lost consciousness; and repeatedly deprived of food and sleep and threatened with dogs.
In October of 2003, during a surprise inspection of Abu Ghraib, the International Committee of the Red Cross discovered Mr. Al-Janabi naked, chained and bruised in a cell in the “hard site” of the prison. He was a so-called “ghost detainee” who was intentionally hidden from the Red Cross on subsequent inspections and held without appearing on the prisoner lists.
The lawsuit – which alleges multiple violations of U.S. law, including torture, war crimes, and civil conspiracy – notes that CACI provided interrogators used at Abu Ghraib and that L-3 employed all translators used there. Mr. Stefanowicz was linked to Abu Ghraib abuses in military court martial proceedings and was said to have directed low-level U.S. military personnel in detainee interrogations.
The lawsuit also alleges that a newly published book, “Our Good Name”, by CACI Chairman J.P. (Jack) London, reveals that CACI’s internal investigation failed to include any interviews of detainees or of a former employee whistleblower.
According to the lawsuit, “CACI has repeatedly made, and continues to make, knowingly false statements to the effect that none of its employees was involved in torturing prisoners. In fact, co-conspirators have admitted that Big Steve and several other corporate employees were involved in the torture,” and at least one publicly released Abu Ghraib photograph shows a former CACI employee interrogating a prisoner in a dangerous and harmful stress position not authorized by relevant military regulations governing interrogation.
In the U.S. Congress, the Senate Intelligence Committee voted last week to limit Central Intelligence Agency (CIA) interrogators to techniques approved by the military, which would effectively bar them from waterboarding prisoners, congressional officials said.
The vote on an amendment by Sen. Diane Feinstein, a Democrat from California, taken behind closed doors as the committee debated legislation to authorize money for intelligence operations in 2009, marks at least the second attempt by intelligence overseers in Congress to regulate CIA questioning of detainees.
President Bush vetoed the 2008 intelligence authorization bill in March because it included the same curbs on questioning techniques. This interrogation provision, if passed by the full Senate and House, would likely face the same fate.
As human rights groups demanded the release of a report on a long-running investigation of the role of the Federal Bureau of Investigation (FBI) in the unlawful interrogations of detainees in Iraq, Afghanistan and Guantánamo Bay, new torture claims were leveled at two U.S. military contractors by a former Abu Ghraib “ghost” detainee who was wrongly imprisoned and later released without charge.
The American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request this week with the Departments of Justice and Defense demanding release of a report by the Justice Department's Inspector General (OIG), which the group says has been completed for months but blocked by the Defense Department.
The OIG investigation was initiated in 2005 after the ACLU obtained documents in which FBI agents described interrogations that they had witnessed at Guantánamo Bay.
While the documents were most notable for their description of illegal interrogation methods used by military interrogators, they also raised serious questions about the FBI's participation in abusive interrogations, the actions of FBI personnel who witnessed abusive interrogations, and the response of FBI officials to reports of abuse.
Testifying before a Congressional committee last week, FBI Director Robert Mueller denied that the FBI participated in any of the interrogations. The Defense Department has said the OIG’s report must be reviewed and redacted to eliminate classified information before it can be made public.
The OIG report and all documents related to this investigation is part of a broader effort to uncover information about the Bush administration's torture policies. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA
lawsuit enforcing the request -- including the Bush administration's 2003 "torture memo" written by John Yoo when he was a deputy at the DOJ's Office of Legal Counsel.
This week, Yoo – under threat of subpoena -- agreed to testify voluntarily before a congressional committee investigating the legal basis used to justify the Bush Administration’s torture policies.
Jameel Jaffer, Director of the ACLU’s National Security Project, told us, “The Inspector General completed this report many months ago. The problem is with the Defense Department, which is using its classification review as a pretext for delaying the report's release. In this case as in many others, the Defense Department is misusing its classification authority to suppress information about the abuse and torture of prisoners.”
“There's no good reason why the report should be withheld from the public. It's being withheld not for legitimate security reasons, but in order to protect high-level government officials from embarrassment, criticism, and possibly even criminal prosecution,” he said.
In related developments, the Center for Constitutional Rights (CCR), an advocacy group, leveled new torture claims against two U.S. military contractors by a former Abu Ghraib “ghost” detainee, and labeled as “wholly inadequate” a single page unclassified summary of the OIG’s report released on the case of Maher Arar, the Canadian rendition victim “rendered” by U.S. authorities to be tortured in Syria for ten months more than five years ago.
In a letter to the OIG, CCR lawyers contrasted the one-page summary with the Canadian public inquiry, which released two public reports after a two-year investigation. The Canadian Government issued a formal apology to Arar and paid him $10 million. It was the Royal Canadian Mounted Police (RCMP) that provided U.S. authorities with information that Arar was a suspected terrorist .
Arar attempted to sue the U.S. Government, but his case was dismissed after the government invoked the so-called “state secrets privilege,” which bars from the courts information that would compromise national security.
The letter charges that the delay of the OIG report’s release has been reportedly “due to efforts by very senior Department of Justice (DOJ) officials to suppress it” because it would expose “serious misconduct”. It added that “the continued delay in releasing report calls into serious question the independence of the DHS OIG.”
Arar said, “By suppressing the report and issuing one page of publicly available information, this U.S. administration adds insult to injury. This ‘summary’ raises more questions than answers about the government’s behavior, and does not answer the central question— why I was sent to Syria to be tortured. ”
The suit against the contactors, filed last week in Los Angeles federal court on behalf of Emad Al-Janabi, a 43-year-old Iraqi blacksmith, alleges that Al-Janabi was wrongly imprisoned, beaten and forced from his home by people in U.S. military uniforms and civilian clothing in September 2003. He was released from Abu Ghraib without charge in July 2004.
The defendants are contractors CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Communications Titan Corporation, of San Diego, Calif.; and former CACI contractor Steven Stefanowicz, a Los Angeles resident known at Abu Ghraib as “Big Steve.”
The suit charges that the contractors subjected Al-Janabi to physical and mental torture in sessions where the defendants acted as interrogators and translators. It alleges the contractors transported him to a detainee site in a wooden box and covered with a hood; scarred on his face when his eyes were clawed by an interrogator; exposed him to a mock execution of his brother and nephew; hung upside down with his feet chained to the steel slats of a bunk bed until he lost consciousness; and repeatedly deprived of food and sleep and threatened with dogs.
In October of 2003, during a surprise inspection of Abu Ghraib, the International Committee of the Red Cross discovered Mr. Al-Janabi naked, chained and bruised in a cell in the “hard site” of the prison. He was a so-called “ghost detainee” who was intentionally hidden from the Red Cross on subsequent inspections and held without appearing on the prisoner lists.
The lawsuit – which alleges multiple violations of U.S. law, including torture, war crimes, and civil conspiracy – notes that CACI provided interrogators used at Abu Ghraib and that L-3 employed all translators used there. Mr. Stefanowicz was linked to Abu Ghraib abuses in military court martial proceedings and was said to have directed low-level U.S. military personnel in detainee interrogations.
The lawsuit also alleges that a newly published book, “Our Good Name”, by CACI Chairman J.P. (Jack) London, reveals that CACI’s internal investigation failed to include any interviews of detainees or of a former employee whistleblower.
According to the lawsuit, “CACI has repeatedly made, and continues to make, knowingly false statements to the effect that none of its employees was involved in torturing prisoners. In fact, co-conspirators have admitted that Big Steve and several other corporate employees were involved in the torture,” and at least one publicly released Abu Ghraib photograph shows a former CACI employee interrogating a prisoner in a dangerous and harmful stress position not authorized by relevant military regulations governing interrogation.
In the U.S. Congress, the Senate Intelligence Committee voted last week to limit Central Intelligence Agency (CIA) interrogators to techniques approved by the military, which would effectively bar them from waterboarding prisoners, congressional officials said.
The vote on an amendment by Sen. Diane Feinstein, a Democrat from California, taken behind closed doors as the committee debated legislation to authorize money for intelligence operations in 2009, marks at least the second attempt by intelligence overseers in Congress to regulate CIA questioning of detainees.
President Bush vetoed the 2008 intelligence authorization bill in March because it included the same curbs on questioning techniques. This interrogation provision, if passed by the full Senate and House, would likely face the same fate.
Thursday, May 01, 2008
Prosecutor’s Holy Grail: Another Scalp
By William Fisher
After a four-year legal battle, a Federal judge has dismissed all charges against an avant-garde artist who public officials condemned as a bio-terrorist in a case critics are calling “a persecution, not a prosecution.”
The artist is Dr. Steven Kurtz, a professor of Visual Studies at the University of Buffalo, and a founding member of the award-winning collective Critical Art Ensemble (CAE).
The case started in May of 2004. While Kurtz was preparing for an exhibition of an art installation at MASS MoCA, a museum in North Adams, Massachusetts, his wife of twenty years died in her sleep. When police responded to his 911 call, they noticed a small food-testing lab and petri dishes containing bacteria cultures.
The lab was part of the scheduled installation, which would have allowed museum visitors to see if their store bought food contained genetically modified (GM) organisms. The cultures were part of a multi-media project commissioned by the UK-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Program.
The project used the harmless bacteria Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programs and their cost to global public health. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.
Local police called the Federal Bureau of Investigation (FBI). While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was detained under the Patriot Act on suspicion of bioterrorism. The street where Kurtz's home was located was cordoned off, his house searched, and his property seized. Federal agents confiscated Kurtz's art projects, computers, and all copies of a book manuscript Kurtz was working on, as well as his reference books and notes. The book, Marching Plague: Germ Warfare and Global Public Health (New York: Autonomedia), had to be entirely reconstructed and was finally published in 2006.
The then Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then U.S. Attorney in Buffalo, Michael A. Battle -- the lawyer who was later to become the Department of Justice employee who notified eight U.S. Attorneys that they were being fired -- praised the work of the Buffalo Joint Terrorism Task Force.
But after a several-month-long investigation, the FBI and the Department of Homeland Security (DHS) failed to provide any evidence of "bioterrorism" On the contrary, FBI tests revealed within a few days of the incident that there were no harmful biological agents in Kurtz's house and that his wife had died of heart failure.
Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. The government claimed that when Dr. Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the University of Pittsburgh and the supplier, American Type Culture Collection (ATCC). Neither the University nor ATCC had brought any complaint, and observers pointed out that scientists routinely share nonhazardous cultures. The Department of Justice (DoJ) further claimed that this alleged contract discrepancy constituted federal mail and wire fraud.
Because the charges against the two academics were brought under the Patriot Act, the maximum penalty was increased from five years to 20.
Earlier, Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies. During the legal wrangling, he had two minor strokes and a major stroke that required months of rehabilitation. He was indicted as he was preparing to undergo a stem cell transplant, his second in seven years.
But Kurtz rejected any plea deal, instead demanding a public trial. Most of the art world has rallied behind him. His colleagues in the Critical Art Ensemble set up a website and a legal defense fund, and Kurtz continued to teach at the University of Buffalo.
When the case finally arrived in a courtroom this month, Federal Judge Richard J. Arcara ruled to dismiss the indictment. It is unclear whether the government will appeal the dismissal.
Lucia Sommer, Coordinator of the CAE Defense Fund, which raised funds for Kurtz’ legal defense, told us that the judge’s decision “is further testament to our original statements that Dr. Kurtz is completely innocent and never should have been charged in the first place.”
Kurtz's supporters said, "The government has pursued this case relentlessly, spending enormous amounts of public resources. Most significantly, the legal battle has exhausted the financial, emotional, and physical resources of Ferrell and Kurtz, as well as their families and supporters. The professional and personal lives of both defendants have suffered tremendously."
The case against Kurtz and Ferrell came to a nation still gripped by the terrorist attacks of 9/11 and the 2001 anthrax attacks. The anthrax attacks occurred over the course of several weeks beginning in September 2001. Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others. Despite a massive government investigation costing millions and covering several Continents, the crime remains unsolved.
The FBI named a government researcher, Dr. Steven Hatfill, as "a person of interest" in the investigation. His name was widely publicized in the media for months, but he has never been charged with any crime. Hatfill sued the New York Times for libel, contending that that the newspaper erroneously linked him to the anthrax attacks.
In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine in a motion to dismiss the libel suit. The Times argued that the classification restrictions imposed on the case by the government were tantamount to an assertion of the state secrets privilege.
The “state secrets” doctrine, the newspaper said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because The Times has been denied access to such evidence, specifically documents and testimony concerning the work done by (Hatfill) on classified government projects relating to bioweapons, including anthrax.”
The court agreed and the case was dismissed in January 2007.
The Kurtz-Ferrell prosecution has drawn widespread criticism from both the art world and from legal experts. The New York Civil Liberties Union (NYCLU) questioned the propriety of a grand jury investigation into Kurtz's work. "It doesn't appear that this investigation satisfies the FBI standards that the facts and circumstances of the case must reasonably indicate that a crime has been committed," said Donna Lieberman, Executive Director of the NYCLU.
Patricia J. Williams, professor of law at Columbia University, questioned whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She wrote, "Recently scholars from around the world have been barred from the U. S. for reasons stated and unstated, but all in the name of Homeland Security. They include a South African peace activist, a Canadian antipoverty worker, an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British musician, a Bolivian historian."
Critical Art Ensemble (which Kurtz co-founded in 1987 with Steven Barnes) has won numerous awards for its bio-art, including the prestigious 2007 Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression Grant, honoring more than two decades of distinguished work.
After a four-year legal battle, a Federal judge has dismissed all charges against an avant-garde artist who public officials condemned as a bio-terrorist in a case critics are calling “a persecution, not a prosecution.”
The artist is Dr. Steven Kurtz, a professor of Visual Studies at the University of Buffalo, and a founding member of the award-winning collective Critical Art Ensemble (CAE).
The case started in May of 2004. While Kurtz was preparing for an exhibition of an art installation at MASS MoCA, a museum in North Adams, Massachusetts, his wife of twenty years died in her sleep. When police responded to his 911 call, they noticed a small food-testing lab and petri dishes containing bacteria cultures.
The lab was part of the scheduled installation, which would have allowed museum visitors to see if their store bought food contained genetically modified (GM) organisms. The cultures were part of a multi-media project commissioned by the UK-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Program.
The project used the harmless bacteria Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programs and their cost to global public health. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.
Local police called the Federal Bureau of Investigation (FBI). While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was detained under the Patriot Act on suspicion of bioterrorism. The street where Kurtz's home was located was cordoned off, his house searched, and his property seized. Federal agents confiscated Kurtz's art projects, computers, and all copies of a book manuscript Kurtz was working on, as well as his reference books and notes. The book, Marching Plague: Germ Warfare and Global Public Health (New York: Autonomedia), had to be entirely reconstructed and was finally published in 2006.
The then Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then U.S. Attorney in Buffalo, Michael A. Battle -- the lawyer who was later to become the Department of Justice employee who notified eight U.S. Attorneys that they were being fired -- praised the work of the Buffalo Joint Terrorism Task Force.
But after a several-month-long investigation, the FBI and the Department of Homeland Security (DHS) failed to provide any evidence of "bioterrorism" On the contrary, FBI tests revealed within a few days of the incident that there were no harmful biological agents in Kurtz's house and that his wife had died of heart failure.
Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. The government claimed that when Dr. Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the University of Pittsburgh and the supplier, American Type Culture Collection (ATCC). Neither the University nor ATCC had brought any complaint, and observers pointed out that scientists routinely share nonhazardous cultures. The Department of Justice (DoJ) further claimed that this alleged contract discrepancy constituted federal mail and wire fraud.
Because the charges against the two academics were brought under the Patriot Act, the maximum penalty was increased from five years to 20.
Earlier, Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies. During the legal wrangling, he had two minor strokes and a major stroke that required months of rehabilitation. He was indicted as he was preparing to undergo a stem cell transplant, his second in seven years.
But Kurtz rejected any plea deal, instead demanding a public trial. Most of the art world has rallied behind him. His colleagues in the Critical Art Ensemble set up a website and a legal defense fund, and Kurtz continued to teach at the University of Buffalo.
When the case finally arrived in a courtroom this month, Federal Judge Richard J. Arcara ruled to dismiss the indictment. It is unclear whether the government will appeal the dismissal.
Lucia Sommer, Coordinator of the CAE Defense Fund, which raised funds for Kurtz’ legal defense, told us that the judge’s decision “is further testament to our original statements that Dr. Kurtz is completely innocent and never should have been charged in the first place.”
Kurtz's supporters said, "The government has pursued this case relentlessly, spending enormous amounts of public resources. Most significantly, the legal battle has exhausted the financial, emotional, and physical resources of Ferrell and Kurtz, as well as their families and supporters. The professional and personal lives of both defendants have suffered tremendously."
The case against Kurtz and Ferrell came to a nation still gripped by the terrorist attacks of 9/11 and the 2001 anthrax attacks. The anthrax attacks occurred over the course of several weeks beginning in September 2001. Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others. Despite a massive government investigation costing millions and covering several Continents, the crime remains unsolved.
The FBI named a government researcher, Dr. Steven Hatfill, as "a person of interest" in the investigation. His name was widely publicized in the media for months, but he has never been charged with any crime. Hatfill sued the New York Times for libel, contending that that the newspaper erroneously linked him to the anthrax attacks.
In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine in a motion to dismiss the libel suit. The Times argued that the classification restrictions imposed on the case by the government were tantamount to an assertion of the state secrets privilege.
The “state secrets” doctrine, the newspaper said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because The Times has been denied access to such evidence, specifically documents and testimony concerning the work done by (Hatfill) on classified government projects relating to bioweapons, including anthrax.”
The court agreed and the case was dismissed in January 2007.
The Kurtz-Ferrell prosecution has drawn widespread criticism from both the art world and from legal experts. The New York Civil Liberties Union (NYCLU) questioned the propriety of a grand jury investigation into Kurtz's work. "It doesn't appear that this investigation satisfies the FBI standards that the facts and circumstances of the case must reasonably indicate that a crime has been committed," said Donna Lieberman, Executive Director of the NYCLU.
Patricia J. Williams, professor of law at Columbia University, questioned whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She wrote, "Recently scholars from around the world have been barred from the U. S. for reasons stated and unstated, but all in the name of Homeland Security. They include a South African peace activist, a Canadian antipoverty worker, an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British musician, a Bolivian historian."
Critical Art Ensemble (which Kurtz co-founded in 1987 with Steven Barnes) has won numerous awards for its bio-art, including the prestigious 2007 Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression Grant, honoring more than two decades of distinguished work.
Saturday, April 26, 2008
HOW MUCH FREEDOM OF INFORMATION?
By William Fisher
The U.S. Central Intelligence Agency has refused to release more than 7,000 documents related to its programs of secret detentions, renditions, and torture, and is asking a federal judge to dismiss a Freedom of Information lawsuit demanding disclosure.
The refusal came last week in the CIA’s response to a lawsuit brought by three human rights groups, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR) and the International Human Rights Clinic at New York University School of Law (NYU IHRC).
The CIA filed a motion with the court for a summary judgment to end the lawsuit and avoid turning over more than 7,000 documents related to its secret “ghost” detention and extraordinary rendition programs.
The CIA claimed that it did not have to release the documents because many consist of correspondence with the White House or top Bush administration officials, or because they are between parties seeking legal advice on the programs, including guidance on the legality of certain interrogation procedures. The CIA confirmed that it requested -- and received -- legal advice from attorneys at the Department of Justice Office of Legal Counsel concerning these procedures.
The case is significant for a number of reasons. Among them, said CCR Executive Director Vincent Warren, it marks the first time the CIA “has acknowledged that it has well over 7000 documents that relate to the torture and disappearance of men.”
And Curt Goering, AIUSA senior deputy executive director, said, “Given what we already know about documents written by Bush administration officials trying to justify torture and other human rights crimes, one does not need a fertile imagination to conclude that the real reason for refusing to disclose these documents has more to do with avoiding disclosure of criminal activity than national security.”
He called on the CIA to “stop stonewalling congressional oversight committees and release vital documents related to the program of secret detentions, renditions, and torture.”
The three human rights organizations will file their response brief in court next month.
These organizations filed their Freedom of Information Act (FOIA) requests last June with several U.S. government agencies, including the CIA. These requests sought information about individuals who are -- or have been -- held by the U.S. government or detained with U.S. involvement, and about whom there is no public record.
The requests also sought information about the government’s legal justifications for its secret detention and extraordinary rendition program. Comprehensive information about the identities and locations of prisoners in CIA custody -- as well as the conditions of their detention and the specific interrogation methods used against them -- has never been publicly revealed.
Emi MacLean, a CCR attorney, told IPS, “The CIA has been running a program of enforced disappearance and torture. What we are asking for is fundamental to a democratic society -- some essential transparency and accountability. We need to know what is being done in our name. Indeed, the documents withheld by the government demonstrate that this basic accountability is what they have been worried about from the very beginning.”
“The CIA has employed illegal techniques such as torture, enforced disappearances, and extraordinary rendition,” said Meg Satterthwaite, Director of the NYU IHRC. “It cannot use FOIA exemptions as a shield to hide its violations of U.S. and international law.”
In its legal filings, the CIA acknowledged that this program “will continue.” Some prisoners have been transferred to prisons in other countries for proxy detention where they face the risk of torture and where they continue to be held secretly, without charge or trial. Human rights reports indicate that the fate and whereabouts of at least 30 people believed to have been held in secret U.S. custody remain unknown.
In September 2006, President Bush publicly acknowledged the existence of CIA-operated secret prisons. At the same time, 14 detainees from these facilities were transferred to Guantánamo and several more have arrived since. The administration has admitted to using so-called “alternative interrogation procedures” on those held in the CIA program, including waterboarding. The international community and the United States, in other contexts, have unequivocally deemed these techniques torture.
One of the centers of particular interest in this case is a CCR client, Majid Khan. Khan emigrated from his native Pakistan to the U.S. in 1996 and is a legal U.S. resident. On a trip to Pakistan to visit his wife, Khan was abducted by Pakistani officials and transferred to one of the CIA’s secret prisons. Among those transferred to Guantanamo Bay to be tried before a Military Commission, he was the first of the so-called "high value" detainees to have legal representation.
Congress has also been unable to obtain CIA records. The few documents released in the human rights groups’ lawsuit demonstrate a pattern of withholding information from Congress.
In a pointed 2003 bipartisan letter, then-Chair and Ranking Member of the House Select Committee on Intelligence requested that the then CIA Director George Tenet provide senior level briefings on the treatment of, and information obtained by, three men known to be held in secret CIA detention.” He told the CIA that their committee was “frustrated with the quality of the information” provided in past briefings.
The CIA appears to have avoided answering detailed requests for specific information, responding instead with form letters and references to briefings. In 2005, these practices led to a forceful letter from Michigan Democratic Senator Carl Levin, now the Chairman of the Senate Armed Services Committee, who was attempting to investigate CIA involvement in detainee deaths. In his letter, Levin noted that “The lack of CIA cooperation with the investigations to date has left significant omissions in the record.”
The Freedom of Information Act (FOIA) was signed into law by President Lyndon B. Johnson in 1966. It allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures, but grants a number of exemptions to Federal agencies.
The U.S. Central Intelligence Agency has refused to release more than 7,000 documents related to its programs of secret detentions, renditions, and torture, and is asking a federal judge to dismiss a Freedom of Information lawsuit demanding disclosure.
The refusal came last week in the CIA’s response to a lawsuit brought by three human rights groups, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR) and the International Human Rights Clinic at New York University School of Law (NYU IHRC).
The CIA filed a motion with the court for a summary judgment to end the lawsuit and avoid turning over more than 7,000 documents related to its secret “ghost” detention and extraordinary rendition programs.
The CIA claimed that it did not have to release the documents because many consist of correspondence with the White House or top Bush administration officials, or because they are between parties seeking legal advice on the programs, including guidance on the legality of certain interrogation procedures. The CIA confirmed that it requested -- and received -- legal advice from attorneys at the Department of Justice Office of Legal Counsel concerning these procedures.
The case is significant for a number of reasons. Among them, said CCR Executive Director Vincent Warren, it marks the first time the CIA “has acknowledged that it has well over 7000 documents that relate to the torture and disappearance of men.”
And Curt Goering, AIUSA senior deputy executive director, said, “Given what we already know about documents written by Bush administration officials trying to justify torture and other human rights crimes, one does not need a fertile imagination to conclude that the real reason for refusing to disclose these documents has more to do with avoiding disclosure of criminal activity than national security.”
He called on the CIA to “stop stonewalling congressional oversight committees and release vital documents related to the program of secret detentions, renditions, and torture.”
The three human rights organizations will file their response brief in court next month.
These organizations filed their Freedom of Information Act (FOIA) requests last June with several U.S. government agencies, including the CIA. These requests sought information about individuals who are -- or have been -- held by the U.S. government or detained with U.S. involvement, and about whom there is no public record.
The requests also sought information about the government’s legal justifications for its secret detention and extraordinary rendition program. Comprehensive information about the identities and locations of prisoners in CIA custody -- as well as the conditions of their detention and the specific interrogation methods used against them -- has never been publicly revealed.
Emi MacLean, a CCR attorney, told IPS, “The CIA has been running a program of enforced disappearance and torture. What we are asking for is fundamental to a democratic society -- some essential transparency and accountability. We need to know what is being done in our name. Indeed, the documents withheld by the government demonstrate that this basic accountability is what they have been worried about from the very beginning.”
“The CIA has employed illegal techniques such as torture, enforced disappearances, and extraordinary rendition,” said Meg Satterthwaite, Director of the NYU IHRC. “It cannot use FOIA exemptions as a shield to hide its violations of U.S. and international law.”
In its legal filings, the CIA acknowledged that this program “will continue.” Some prisoners have been transferred to prisons in other countries for proxy detention where they face the risk of torture and where they continue to be held secretly, without charge or trial. Human rights reports indicate that the fate and whereabouts of at least 30 people believed to have been held in secret U.S. custody remain unknown.
In September 2006, President Bush publicly acknowledged the existence of CIA-operated secret prisons. At the same time, 14 detainees from these facilities were transferred to Guantánamo and several more have arrived since. The administration has admitted to using so-called “alternative interrogation procedures” on those held in the CIA program, including waterboarding. The international community and the United States, in other contexts, have unequivocally deemed these techniques torture.
One of the centers of particular interest in this case is a CCR client, Majid Khan. Khan emigrated from his native Pakistan to the U.S. in 1996 and is a legal U.S. resident. On a trip to Pakistan to visit his wife, Khan was abducted by Pakistani officials and transferred to one of the CIA’s secret prisons. Among those transferred to Guantanamo Bay to be tried before a Military Commission, he was the first of the so-called "high value" detainees to have legal representation.
Congress has also been unable to obtain CIA records. The few documents released in the human rights groups’ lawsuit demonstrate a pattern of withholding information from Congress.
In a pointed 2003 bipartisan letter, then-Chair and Ranking Member of the House Select Committee on Intelligence requested that the then CIA Director George Tenet provide senior level briefings on the treatment of, and information obtained by, three men known to be held in secret CIA detention.” He told the CIA that their committee was “frustrated with the quality of the information” provided in past briefings.
The CIA appears to have avoided answering detailed requests for specific information, responding instead with form letters and references to briefings. In 2005, these practices led to a forceful letter from Michigan Democratic Senator Carl Levin, now the Chairman of the Senate Armed Services Committee, who was attempting to investigate CIA involvement in detainee deaths. In his letter, Levin noted that “The lack of CIA cooperation with the investigations to date has left significant omissions in the record.”
The Freedom of Information Act (FOIA) was signed into law by President Lyndon B. Johnson in 1966. It allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures, but grants a number of exemptions to Federal agencies.
WE’VE GOT A (STATE) SECRET
By William Fisher
Congress yesterday moved a step closer to reining in the legal practice that the government has used to block lawsuits by whistleblowers and victims of “extraordinary rendition,” as well as actions that would embarrass the administration.
By an 11-8 vote, the Senate Judiciary Committee passed the State Secrets Protection Act, a measure introduced by Sen. Edward M. Kennedy, Democrat of Massachusetts, and Arlen Specter, a Republican from Pennsylvania. Specter. Specter, the committee’s most senior minority member, was alone among the panel’s nine Republicans to vote in favor of approving the bill.
The measure would establish new rules that would allow judges to review government evidence supporting its claims that bringing a case to civil trial would involve disclosure of classified state secrets and thus compromise national security.
The bill now goes to the full Senate for a vote, though its timing and outcome remain unclear. A similar bill has been introduced in the House of Representatives by Congressmen Jerrold Nadler, Democrat from New York, and Tom Petri, a Wisconsin Republican.
The White House has signaled that President George W. Bush will veto the legislation if it passes both houses of Congress.
The new bill would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed.
The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," Senator Kennedy said.
Under the proposed measure, when the government claims the state secrets privilege, it will be required to submit an affidavit explaining why the information sought should remain secret. If the court agrees that certain evidence is privileged, it must order the government to produce unclassified or blacked-out versions of the sensitive information if doing so would not harm national security.
Judges would be authorized to rule against the government if it refuses to produce this documentation.
The attorney general would be required to report to the House and Senate Intelligence and Judiciary committees every time the government claimed the state secrets privilege.
The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation. The courts have generally accepted such government assertions.
The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25 per cent more cases each year than previous administrations, and has sought dismissal in more than 90% of cases.
The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”
Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."
The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."
And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."
The absence of such rules has resulted in the dismissal of a number of
high-profile lawsuits against the government. For example:
A German citizen, Khaled el-Masri, complained to the court that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition." His suit was dismissed because he would not be able to make his case except by using "privileged evidence” that exposed CIA practices -- and the CIA could not defend itself against the allegations "without using privileged evidence."
In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.
Another case involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation.
Legal scholars and civil rights advocates have been outspoken against the Bush Administration’s use of the state secrets privilege as a shield behind which it can conceal virtually any activity.
Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told IPS, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."
Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told IPS that the Bush Administration “has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest.”
He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”
Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, told IPS, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”
And Gabor Rona, International Legal Director of advocacy group Human Rights First, told IPS, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”
But Attorney General Michael Mukasey said he believes Congress probably lacks the authority to alter the state secrets privilege because it is rooted in the Constitution "and is not merely a common law privilege."
He said the bill would transfer responsibility for making national security
judgments from the executive branch to the courts. He contends that federal judges do not have “the constitutional authority nor the institutional expertise to assume such functions."
Congress yesterday moved a step closer to reining in the legal practice that the government has used to block lawsuits by whistleblowers and victims of “extraordinary rendition,” as well as actions that would embarrass the administration.
By an 11-8 vote, the Senate Judiciary Committee passed the State Secrets Protection Act, a measure introduced by Sen. Edward M. Kennedy, Democrat of Massachusetts, and Arlen Specter, a Republican from Pennsylvania. Specter. Specter, the committee’s most senior minority member, was alone among the panel’s nine Republicans to vote in favor of approving the bill.
The measure would establish new rules that would allow judges to review government evidence supporting its claims that bringing a case to civil trial would involve disclosure of classified state secrets and thus compromise national security.
The bill now goes to the full Senate for a vote, though its timing and outcome remain unclear. A similar bill has been introduced in the House of Representatives by Congressmen Jerrold Nadler, Democrat from New York, and Tom Petri, a Wisconsin Republican.
The White House has signaled that President George W. Bush will veto the legislation if it passes both houses of Congress.
The new bill would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed.
The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," Senator Kennedy said.
Under the proposed measure, when the government claims the state secrets privilege, it will be required to submit an affidavit explaining why the information sought should remain secret. If the court agrees that certain evidence is privileged, it must order the government to produce unclassified or blacked-out versions of the sensitive information if doing so would not harm national security.
Judges would be authorized to rule against the government if it refuses to produce this documentation.
The attorney general would be required to report to the House and Senate Intelligence and Judiciary committees every time the government claimed the state secrets privilege.
The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation. The courts have generally accepted such government assertions.
The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25 per cent more cases each year than previous administrations, and has sought dismissal in more than 90% of cases.
The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”
Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."
The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."
And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."
The absence of such rules has resulted in the dismissal of a number of
high-profile lawsuits against the government. For example:
A German citizen, Khaled el-Masri, complained to the court that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition." His suit was dismissed because he would not be able to make his case except by using "privileged evidence” that exposed CIA practices -- and the CIA could not defend itself against the allegations "without using privileged evidence."
In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.
Another case involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation.
Legal scholars and civil rights advocates have been outspoken against the Bush Administration’s use of the state secrets privilege as a shield behind which it can conceal virtually any activity.
Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told IPS, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."
Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told IPS that the Bush Administration “has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest.”
He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”
Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, told IPS, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”
And Gabor Rona, International Legal Director of advocacy group Human Rights First, told IPS, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”
But Attorney General Michael Mukasey said he believes Congress probably lacks the authority to alter the state secrets privilege because it is rooted in the Constitution "and is not merely a common law privilege."
He said the bill would transfer responsibility for making national security
judgments from the executive branch to the courts. He contends that federal judges do not have “the constitutional authority nor the institutional expertise to assume such functions."
Tuesday, April 22, 2008
THE RETURN OF JOE McCARTHY?
By William Fisher
The U.S. Government’s anti-terrorist financing programs are based on the “guilt by association” tactics of the McCarthy era and have had a widespread negative impact on American charities.
That is the view of Kay Guinane, Director of the Nonprofit Speech Rights Program for OMB (Office of Management and Budget) Watch, an independent not-for-profit government watchdog group. Guinane told us that government actions have resulted in program cutbacks and increased fear of speaking out on important public issues.
The organization accused Congress of continuing “an unfortunate pattern of insufficient congressional oversight of anti-terrorist financing programs, neglecting to address the unnecessarily harsh impacts the programs have on U.S. charities and philanthropy.”
As an example of insufficient congressional oversight of charities’ alleged support of terrorist organizations, OMB Watch cited a recent hearing before the Senate Finance Committee in which the only witness was a government official. The witness was Under Secretary of the Treasury for Terrorism and Financial Intelligence Stuart Levey, who plays a lead role in identifying charities that the Treasury Department claims are supporting terrorist causes.
OMB Watch asked the Committee for an opportunity to testify, but was not invited.
The “McCarthy era” refers to a 1950s Cold War campaign led by then Republican Senator Joseph McCarthy of Wisconsin. McCarthy charged that communist "subversives" had infiltrated the American government and were undermining national security and disclosing secret information. He accused the administration of President Harry S. Truman of sheltering such subversives rather than investigating and ousting them.
As the threat of communism grew, people's fears were fed by McCarthy's charges. Hundreds of citizens were “blacklisted” and lost their jobs. Fearing a communist takeover, Congress made membership in the Communist Party a criminal offense, in a statute known as the Smith Act.
In his opening statement at the Senate hearing, Committee chair Max Baucus, a Montana Democrat, referred to failed criminal prosecutions of charities suspected of having ties to terrorism, asking if the prosecutions "were off base" or if the government should "do a better job of monitoring these organizations?"
Baucus was referring to the government’s prosecution of the Holy Land Foundation (HLF), the largest and best-known organization supporting Muslim causes.
In December 2001, the group was designated as a supporter of terrorism, shut down and had its assets frozen. At that time, President Bush, accompanied by then Attorney General John Ashcroft and Treasury Secretary Paul O'Neill, charged that "Hamas has obtained much of the money that it pays for murder abroad right here in the U.S., money originally raised by the Holy Land Foundation."
But by the time of the trial, in 2007, prosecutors no longer claimed HLF provided support to Hamas or paid for violent acts. Instead, prosecutors admitted all the money went for charitable aid but said the local charities that delivered the aid to Palestinians were controlled by Hamas.
In October 2007, a federal jury in Texas deadlocked on all charges against HLF and most of the charges against five of its leaders. The former board chair and endowment director, Mohammed el-Mezain, was acquitted of 31 of 32 charges against him, with the jury deadlocking on the remaining charge.
The government has indicated that it will retry the case. But, according to OMB Watch, it will again face the problem of secret evidence that unraveled when subjected to scrutiny and the fact that none of the charities HLF was accused of funding are on government lists of terrorist organizations.
In his Senate testimony, Levey noted that Treasury has "designated approximately 50 charities worldwide as supporters of terrorism, including several in the United States, putting a strain on al Qaida's financing efforts."
But OMB Watch says, “Witnesses from charities and foundations could have provided the committee with a full picture of the real damage the financial war on terror is causing charities, foundations, and the people we serve. Instead, the public record is left incomplete, which will likely lead to continuation of flawed programs that do little or nothing to stop terrorism."
Georgetown University law school Prof. David Cole, one of America’s preeminent constitutional scholars, told us, “The ‘material support’ principle is ‘guilt by association’ in 21st-century garb, and presents all of the same problems that criminalizing membership and association did during the Cold War.”
In the name of cutting off support for terrorist organizations, the government has adopted the "paradigm of prevention”, Cole says. “That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future.”
In a chapter of a forthcoming book, “Counterterrorism: Democracy's Challenge,” to be published later this year, Cole writes, "The United States law now makes it a crime to provide anything of support -- from dues to volunteer services -- to any organization or individual that the government has labeled ‘terrorist’. The prohibition is not limited to those who intend to support the illegal or terrorist acts of so-called terrorist organizations. It criminalizes any and all support - including support that is otherwise entirely lawful, peaceful, and nonviolent.”
“Hundreds of individuals and groups have been placed on this ‘terrorist’ list since 2001,” Cole says, adding, “Remarkably, there is no definition in federal statutes of a ‘specially designated terrorist’ or a ‘specially designated global terrorist’. Thus, the President and the Secretary of Treasury can apply this label to literally anyone or any group.”
He told us that the problem requires fundamental changes in the terrorism-financing law. He recommends that the Treasury Department be required to permit closed charities to direct their collected funds to charities mutually approved by the frozen charity and the government.
He also says that Congress should enact a statutory definition of a "specially designated terrorist".
"Right now the Treasury Department makes such designations entirely on the basis of an executive order, and accordingly Congress has given the president essentially a blank check," Cole told us.
Treasury should allow designated entities to use their own funds to pay for their own defense, he argues. "Treasury not only shuts down charities in a secretive one-sided process, but then bars the charities from using any of their own money to defend themselves against the designation," according to Cole.
And the criminal material support statutes should be amended to require proof that an individual supported a proscribed group with the intent to further its illegal activities.
"Today," according to the government, "even aid intended to discourage terrorist activities is a crime under the material support laws," Cole says.
OMB Watch says the "material support" effort has resulted in the government shutting down charities that were not on any government watch list before their assets were frozen.
The organization says the result is that Muslims have no way of knowing which groups the government suspects of ties to terrorism. "Organizations and individuals suspected of supporting terrorism are guilty until proven innocent," it says. OMB Watch told us, "A group could comply 100 percent and still be shut down 'pending an investigation'."
The U.S. Government’s anti-terrorist financing programs are based on the “guilt by association” tactics of the McCarthy era and have had a widespread negative impact on American charities.
That is the view of Kay Guinane, Director of the Nonprofit Speech Rights Program for OMB (Office of Management and Budget) Watch, an independent not-for-profit government watchdog group. Guinane told us that government actions have resulted in program cutbacks and increased fear of speaking out on important public issues.
The organization accused Congress of continuing “an unfortunate pattern of insufficient congressional oversight of anti-terrorist financing programs, neglecting to address the unnecessarily harsh impacts the programs have on U.S. charities and philanthropy.”
As an example of insufficient congressional oversight of charities’ alleged support of terrorist organizations, OMB Watch cited a recent hearing before the Senate Finance Committee in which the only witness was a government official. The witness was Under Secretary of the Treasury for Terrorism and Financial Intelligence Stuart Levey, who plays a lead role in identifying charities that the Treasury Department claims are supporting terrorist causes.
OMB Watch asked the Committee for an opportunity to testify, but was not invited.
The “McCarthy era” refers to a 1950s Cold War campaign led by then Republican Senator Joseph McCarthy of Wisconsin. McCarthy charged that communist "subversives" had infiltrated the American government and were undermining national security and disclosing secret information. He accused the administration of President Harry S. Truman of sheltering such subversives rather than investigating and ousting them.
As the threat of communism grew, people's fears were fed by McCarthy's charges. Hundreds of citizens were “blacklisted” and lost their jobs. Fearing a communist takeover, Congress made membership in the Communist Party a criminal offense, in a statute known as the Smith Act.
In his opening statement at the Senate hearing, Committee chair Max Baucus, a Montana Democrat, referred to failed criminal prosecutions of charities suspected of having ties to terrorism, asking if the prosecutions "were off base" or if the government should "do a better job of monitoring these organizations?"
Baucus was referring to the government’s prosecution of the Holy Land Foundation (HLF), the largest and best-known organization supporting Muslim causes.
In December 2001, the group was designated as a supporter of terrorism, shut down and had its assets frozen. At that time, President Bush, accompanied by then Attorney General John Ashcroft and Treasury Secretary Paul O'Neill, charged that "Hamas has obtained much of the money that it pays for murder abroad right here in the U.S., money originally raised by the Holy Land Foundation."
But by the time of the trial, in 2007, prosecutors no longer claimed HLF provided support to Hamas or paid for violent acts. Instead, prosecutors admitted all the money went for charitable aid but said the local charities that delivered the aid to Palestinians were controlled by Hamas.
In October 2007, a federal jury in Texas deadlocked on all charges against HLF and most of the charges against five of its leaders. The former board chair and endowment director, Mohammed el-Mezain, was acquitted of 31 of 32 charges against him, with the jury deadlocking on the remaining charge.
The government has indicated that it will retry the case. But, according to OMB Watch, it will again face the problem of secret evidence that unraveled when subjected to scrutiny and the fact that none of the charities HLF was accused of funding are on government lists of terrorist organizations.
In his Senate testimony, Levey noted that Treasury has "designated approximately 50 charities worldwide as supporters of terrorism, including several in the United States, putting a strain on al Qaida's financing efforts."
But OMB Watch says, “Witnesses from charities and foundations could have provided the committee with a full picture of the real damage the financial war on terror is causing charities, foundations, and the people we serve. Instead, the public record is left incomplete, which will likely lead to continuation of flawed programs that do little or nothing to stop terrorism."
Georgetown University law school Prof. David Cole, one of America’s preeminent constitutional scholars, told us, “The ‘material support’ principle is ‘guilt by association’ in 21st-century garb, and presents all of the same problems that criminalizing membership and association did during the Cold War.”
In the name of cutting off support for terrorist organizations, the government has adopted the "paradigm of prevention”, Cole says. “That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future.”
In a chapter of a forthcoming book, “Counterterrorism: Democracy's Challenge,” to be published later this year, Cole writes, "The United States law now makes it a crime to provide anything of support -- from dues to volunteer services -- to any organization or individual that the government has labeled ‘terrorist’. The prohibition is not limited to those who intend to support the illegal or terrorist acts of so-called terrorist organizations. It criminalizes any and all support - including support that is otherwise entirely lawful, peaceful, and nonviolent.”
“Hundreds of individuals and groups have been placed on this ‘terrorist’ list since 2001,” Cole says, adding, “Remarkably, there is no definition in federal statutes of a ‘specially designated terrorist’ or a ‘specially designated global terrorist’. Thus, the President and the Secretary of Treasury can apply this label to literally anyone or any group.”
He told us that the problem requires fundamental changes in the terrorism-financing law. He recommends that the Treasury Department be required to permit closed charities to direct their collected funds to charities mutually approved by the frozen charity and the government.
He also says that Congress should enact a statutory definition of a "specially designated terrorist".
"Right now the Treasury Department makes such designations entirely on the basis of an executive order, and accordingly Congress has given the president essentially a blank check," Cole told us.
Treasury should allow designated entities to use their own funds to pay for their own defense, he argues. "Treasury not only shuts down charities in a secretive one-sided process, but then bars the charities from using any of their own money to defend themselves against the designation," according to Cole.
And the criminal material support statutes should be amended to require proof that an individual supported a proscribed group with the intent to further its illegal activities.
"Today," according to the government, "even aid intended to discourage terrorist activities is a crime under the material support laws," Cole says.
OMB Watch says the "material support" effort has resulted in the government shutting down charities that were not on any government watch list before their assets were frozen.
The organization says the result is that Muslims have no way of knowing which groups the government suspects of ties to terrorism. "Organizations and individuals suspected of supporting terrorism are guilty until proven innocent," it says. OMB Watch told us, "A group could comply 100 percent and still be shut down 'pending an investigation'."
Saturday, April 19, 2008
No YouTube Left Behind
By William Fisher
The most discredited bromide in American civic life is: “Give the American people the facts, and they will make the right decisions.”
But who is giving them the facts?
Fox News? Rush Limbaugh? Bill O’Reilly? Lou Dobbs? The hysterical Chris Matthews?
I don’t think so. These people are entertainers pitching themselves as journalists.
Or maybe the fact-gatherers are ABC’s Charlie Gibson and George Stephanopoulos, who spent the first 50 minutes of the last Obama-Clinton debate asking non-questions for which they surely deserve the year’s top Inanity Awards.
Charley and George are not journalists; they’re “gotcha” peddlers. Their interest is in ratings and money, not facts.
The short answer is nobody. And the result is a tragically uninformed electorate.
But this state of affairs didn’t start with TV talking heads. It started in our middle and high schools, with the parents of the young people who attend these schools and with those who teach those students.
The intellectual poverty of our educational system was recently highlighted in an article in the Journal of Higher Education by Ted Gup, a professor of journalism at Case Western Reserve University and author of “Nation of Secrets: The Threat to Democracy and the American Way of Life” (Doubleday, 2007).
Gup recounted the following experience:
“I teach a seminar called ‘Secrecy: Forbidden Knowledge’. I recently asked my class of 16 freshmen and sophomores, many of whom had graduated in the top 10 percent of their high-school classes and had dazzling SAT scores, how many had heard the word "rendition." Not one hand went up. This is after four years of the word appearing on the front pages of the nation's newspapers, on network and cable news, and online. This is after years of highly publicized lawsuits, Congressional inquiries, and international controversy and condemnation. This is after the release of a Hollywood film of that title, starring Jake Gyllenhaal, Meryl Streep, and Reese Witherspoon.”
Gup wrote that this information deficit was no aberration. He said, “Nearly half of a recent class could not name a single country that bordered Israel. In an introductory journalism class, 11 of 18 students could not name what country Kabul was in, although we have been at war there for half a decade. Last fall only one in 21 students could name the U.S. secretary of defense. Given a list of four countries — China, Cuba, India, and Japan — not one of those same 21 students could identify India and Japan as democracies. Their grasp of history was little better. Some students thought that Islam was the principal religion of South America, that Roe v. Wade was about slavery, that 50 justices sit on the U.S. Supreme Court, that the atom bomb was dropped on Hiroshima in 1975.”
Should we be surprised? I don’t think so.
The study of civics has virtually disappeared from our middle and high school curricula. And many of the few schools that still teach this subject are using a textbook – now in its 11th edition -- that the widely respected Center for Inquiry says contains “inaccurate and misleading statements, in particular in its analysis of certain constitutional law issues, including school prayer and global warming."
And despite the ubiquity of blackberries, laptops, and access to television and the Internet by our youth, survey after survey has validated the sorry state of their knowledge, particularly about American history and America’s civic life.
For example, one survey found that 52% of Americans could name two or more of the characters from "The Simpsons," but only 28% could identify two of the freedoms protected under the First Amendment. Another poll found that 77% of Americans could name at least two of the Seven Dwarfs from "Snow White," but only 24% could name two or more Supreme Court justices. Yet another survey showed that only two-thirds of Americans could identify all three branches of government; only 55% of Americans were aware that the Supreme Court can declare an act of Congress unconstitutional; and 35% thought that it was the intention of the founding fathers to give the president "the final say" over Congress and the judiciary.
And according to a new statewide study, thousands of Massachusetts public high school graduates arrive at college unprepared for even the most basic math and English classes, forcing them to take remedial courses that discourage many from staying in school. At three high schools in Boston and two in Worcester, at least 70 percent of students were forced to take at least one remedial class because they scored poorly on a college placement test.
Other studies sadly point in the same direction. One showed that a majority of college students thinks the press has too much freedom. Another found that they believe the freedoms of American Muslims should be restricted. Still another found that a majority of high school graduates couldn’t find China on a map. And year after year, America’s knowledge scores vis a vis other industrialized democracies keeps going south.
The totally predictable result is, as David Brooks pointed out in a recent New York Times column, “For the first time in the nation’s history, workers retiring from the labor force are better educated than the ones coming in.”
Lately, amidst our xenophobic immigration debate, there’s been lots of chatter about the new test the government is proposing to determine which immigrants qualify for naturalized U.S. citizenship. The Los Angeles Times’ Rosa Brooks writes, tongue in cheek, that it “will rigorously assess immigrants' knowledge of ‘the fundamental concepts of American democracy’," asking tough questions such as ‘Why do we have three branches of government? , ‘What is the rule of law?’ and ‘What are inalienable rights’? ”
Ms. Brooks says that requiring those who want the privileges of U.S. citizenship to have some minimal knowledge of American civics “is a great idea.” Why, she asks, “should this country mint new so-called citizens who don't know the first thing about American history or law?”
Her zinger, however, is that she wants to make native-born Americans take the test too — and deport them to their last known countries of ancestry if they flunk. Why, she asks, “should we ask first-generation immigrants to know more about the United States than the rest of us?”
Why indeed!
Do we have reason to hope that the millions of young people who have flocked to support Barack Obama’s candidacy represent some kind of a sea change among our youth?
No, we don’t. These young people are “the best and the brightest” – far above the norm. A vastly greater number of American young people are high school dropouts, or kids who graduate from high school despite being functionally illiterate, or even those who go on to college clueless about their country’s history and government.
These are the young people who click on YouTube to amass an encyclopedic knowledge of Paris Hilton’s latest antics.
And despite the Bush Administration’s overblown claims of success for its “No Child Left Behind” program, these are the millions of kids who continue to be left behind.
And who leave our country behind in the process.
The most discredited bromide in American civic life is: “Give the American people the facts, and they will make the right decisions.”
But who is giving them the facts?
Fox News? Rush Limbaugh? Bill O’Reilly? Lou Dobbs? The hysterical Chris Matthews?
I don’t think so. These people are entertainers pitching themselves as journalists.
Or maybe the fact-gatherers are ABC’s Charlie Gibson and George Stephanopoulos, who spent the first 50 minutes of the last Obama-Clinton debate asking non-questions for which they surely deserve the year’s top Inanity Awards.
Charley and George are not journalists; they’re “gotcha” peddlers. Their interest is in ratings and money, not facts.
The short answer is nobody. And the result is a tragically uninformed electorate.
But this state of affairs didn’t start with TV talking heads. It started in our middle and high schools, with the parents of the young people who attend these schools and with those who teach those students.
The intellectual poverty of our educational system was recently highlighted in an article in the Journal of Higher Education by Ted Gup, a professor of journalism at Case Western Reserve University and author of “Nation of Secrets: The Threat to Democracy and the American Way of Life” (Doubleday, 2007).
Gup recounted the following experience:
“I teach a seminar called ‘Secrecy: Forbidden Knowledge’. I recently asked my class of 16 freshmen and sophomores, many of whom had graduated in the top 10 percent of their high-school classes and had dazzling SAT scores, how many had heard the word "rendition." Not one hand went up. This is after four years of the word appearing on the front pages of the nation's newspapers, on network and cable news, and online. This is after years of highly publicized lawsuits, Congressional inquiries, and international controversy and condemnation. This is after the release of a Hollywood film of that title, starring Jake Gyllenhaal, Meryl Streep, and Reese Witherspoon.”
Gup wrote that this information deficit was no aberration. He said, “Nearly half of a recent class could not name a single country that bordered Israel. In an introductory journalism class, 11 of 18 students could not name what country Kabul was in, although we have been at war there for half a decade. Last fall only one in 21 students could name the U.S. secretary of defense. Given a list of four countries — China, Cuba, India, and Japan — not one of those same 21 students could identify India and Japan as democracies. Their grasp of history was little better. Some students thought that Islam was the principal religion of South America, that Roe v. Wade was about slavery, that 50 justices sit on the U.S. Supreme Court, that the atom bomb was dropped on Hiroshima in 1975.”
Should we be surprised? I don’t think so.
The study of civics has virtually disappeared from our middle and high school curricula. And many of the few schools that still teach this subject are using a textbook – now in its 11th edition -- that the widely respected Center for Inquiry says contains “inaccurate and misleading statements, in particular in its analysis of certain constitutional law issues, including school prayer and global warming."
And despite the ubiquity of blackberries, laptops, and access to television and the Internet by our youth, survey after survey has validated the sorry state of their knowledge, particularly about American history and America’s civic life.
For example, one survey found that 52% of Americans could name two or more of the characters from "The Simpsons," but only 28% could identify two of the freedoms protected under the First Amendment. Another poll found that 77% of Americans could name at least two of the Seven Dwarfs from "Snow White," but only 24% could name two or more Supreme Court justices. Yet another survey showed that only two-thirds of Americans could identify all three branches of government; only 55% of Americans were aware that the Supreme Court can declare an act of Congress unconstitutional; and 35% thought that it was the intention of the founding fathers to give the president "the final say" over Congress and the judiciary.
And according to a new statewide study, thousands of Massachusetts public high school graduates arrive at college unprepared for even the most basic math and English classes, forcing them to take remedial courses that discourage many from staying in school. At three high schools in Boston and two in Worcester, at least 70 percent of students were forced to take at least one remedial class because they scored poorly on a college placement test.
Other studies sadly point in the same direction. One showed that a majority of college students thinks the press has too much freedom. Another found that they believe the freedoms of American Muslims should be restricted. Still another found that a majority of high school graduates couldn’t find China on a map. And year after year, America’s knowledge scores vis a vis other industrialized democracies keeps going south.
The totally predictable result is, as David Brooks pointed out in a recent New York Times column, “For the first time in the nation’s history, workers retiring from the labor force are better educated than the ones coming in.”
Lately, amidst our xenophobic immigration debate, there’s been lots of chatter about the new test the government is proposing to determine which immigrants qualify for naturalized U.S. citizenship. The Los Angeles Times’ Rosa Brooks writes, tongue in cheek, that it “will rigorously assess immigrants' knowledge of ‘the fundamental concepts of American democracy’," asking tough questions such as ‘Why do we have three branches of government? , ‘What is the rule of law?’ and ‘What are inalienable rights’? ”
Ms. Brooks says that requiring those who want the privileges of U.S. citizenship to have some minimal knowledge of American civics “is a great idea.” Why, she asks, “should this country mint new so-called citizens who don't know the first thing about American history or law?”
Her zinger, however, is that she wants to make native-born Americans take the test too — and deport them to their last known countries of ancestry if they flunk. Why, she asks, “should we ask first-generation immigrants to know more about the United States than the rest of us?”
Why indeed!
Do we have reason to hope that the millions of young people who have flocked to support Barack Obama’s candidacy represent some kind of a sea change among our youth?
No, we don’t. These young people are “the best and the brightest” – far above the norm. A vastly greater number of American young people are high school dropouts, or kids who graduate from high school despite being functionally illiterate, or even those who go on to college clueless about their country’s history and government.
These are the young people who click on YouTube to amass an encyclopedic knowledge of Paris Hilton’s latest antics.
And despite the Bush Administration’s overblown claims of success for its “No Child Left Behind” program, these are the millions of kids who continue to be left behind.
And who leave our country behind in the process.
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