By William Fisher
As the long–awaited trial of Guantanamo detainee Salim Ahmed Hamdan opened this week at the U.S. naval base in Cuba, human rights groups filed suit demanding that the Department of Justice (DOJ) produce documents related to the U.S. government’s ghost detention, torture, and extraordinary rendition program, and Attorney General Michael Mukasey called on Congress to quickly pass new legislation to guard against judges imposing a patchwork of conflicting rules that could produce confusion, more court challenges and even lengthier delays for prisoners who have been held at Guantanamo for as long as seven years.
Hamdan, Osama bin Laden's alleged former driver, is the first terror suspect to face trial at Guantanamo in seven years and the first test of whether that system can dispense fair and impartial justice. The charges against the Yemeni father of two will proceed before a military commission -- the first since the end of World War II -- with a jury of uniformed officers and rules that many constitutional authorities believe give great deference to the prosecution. Evidence obtained from "cruel" and "inhuman" interrogation methods as well as hearsay evidence will be admissible under certain circumstances. Hamdan faces a maximum of life in prison if convicted.
"This was supposed to be the premier system for bringing to justice the masterminds of the worst crime ever committed on U.S. soil," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The only result in seven years was the conviction of an Australian kangaroo trapper, who is now free."
He was referring to Australian David M. Hicks, who last year pleaded guilty to a terrorism charge in the only Guantanamo case to be fully adjudicated. Hicks was sent to Australia as part of a political deal and was later released from prison there.
Hamdan’s lawyers have argued he was beaten and abused at Guantanamo and subjected to a program of systematic sleep deprivation that they said constitutes torture.
Hamdan is one of about 20 prisoners whose cases are scheduled to be heard by juries composed of military service members rather than civilians.
The Hamdan trials, as well as those that are to follow, have been widely criticized by constitutional scholars. For example, Brian J. Foley, Visiting Associate law professor at Boston University, told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”
He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies.”
Defenders of the military commissions are defending its multi-layered due process procedures -- including the right to appeal a conviction to federal court -- that Congress added since Bush proposed the panels. Proponents of the new system say people who committed heinous acts against the United States do not deserve the constitutional protections of its federal courts.
Even if Hamdan is acquitted of conspiracy and material support of terrorism charges – an unlikely outcome -- he probably would not be released because he has been designated an "enemy combatant" by the military. The military contends that prosecutors would be unchanged by an acquittal even if international pressure mounts for his release.
Such international pressure came last week, when hundreds of European legislators filed a court motion to postpone Hamdan's trial while he challenges the legality of Military Commissions.
In a new legal brief, the Europeans said they were “concerned that (Hamdan's) imminent military commission trial will not exclude evidence that contravenes international standards of fair trial, due process and the protection of human rights."
But last week, a federal judge ruled that Hamdan’s Military Commission trial should continue, and suggested that appellate relief could come from the military’s own internal process or from the U.S. Federal Court of Appeals.
Hamdan has already become something of an icon in U.S. constitutional history. In a lawsuit brought by Hamdan's attorneys, the Supreme Court in 2006 struck down the military commission system, ruling that it was not authorized by federal law and violated the Geneva Conventions. Congress reacted by passing the Military Commissions Act of 2006, under which
Hamdan is being tried.
The Act banned evidence obtained using torture but said statements derived from harsh interrogations are allowable if the judge finds the evidence reliable and relevant. In 2005, Congress banned "cruel, inhuman, or degrading treatment," but statements made under such duress before that date could be admissible. Many of Hamdan's interrogations occurred before the congressional action, according to court testimony.
The Hamdan proceedings are seen by observers as a way to test the long-delayed military system on an alleged low-level al-Qaeda foot soldier and thus be primed for the trials of “high value” terrorist leaders to come. These include proceedings against Khalid Sheik Mohammed, self-proclaimed mastermind of the Sept. 11, 2001, attacks, Abu Zubaydah, and other accused planners.
One of the most prominent figures to argue for delay of Hamdan’s case is Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo. He resigned his position late last year in protest over what he said was political interference.
“My policy as chief prosecutor had been that we would not offer any evidence obtained by waterboarding, specifically, or any other interrogation techniques that were unduly coercive,” Davis said, adding, “I felt I couldn’t ensure full, fair and open trials, and I resigned—asked to resign.” In April, he testified as a witness for Hamdan and offered a harsh critique of the military commission system.
Attorney General Mukasey’s plea to Congress related to legislating rules to avoid confusion and further delays in the large number of habeas corpus suits already filed with the federal appeals court in which Guantanamo detainees are challenging the basis of their detention. But with only five weeks remaining in its legislative calendar, it is doubtful that the current Congress could develop a plan that would be acceptable to the Bush Administration and to both Republican and Democratic lawmakers.
As the Hamdan trial began, leading human rights groups filed a court motion under the Freedom of Information Act (FOIA) for a preliminary injunction to compel the Department of Justice and other agencies to release information requested in 2004 and 2006. The requested information relates to the government’s program of secret or irregular detention.
The groups are Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law’s Center for Human Rights and Global Justice (NYU IHRC/CHRGJ).
“The more the DOJ stalls in admitting its role in the rendition, disappearances, and torture program, the more obvious it becomes that it has greatly contributed to the illegality that has come to define this administration over the past seven years,” said Jayne Huckerby, Research Director of the CHRGJ.
Monday, July 21, 2008
Sunday, July 13, 2008
Free at Last, Free at Last – or Not
By William Fisher
As a federal appeals court ruled that the U.S. military improperly labeled a Chinese Muslim held at Guantanamo Bay an “enemy combatant” and ordered that he be released, transferred or granted a new hearing, an influential Congressional committee delivered a scathing criticism of China’s closed trial of 15 co-religionists on terrorism charges -- resulting in the immediate execution of two defendants, three suspended death sentences, and ten sentences to life imprisonment.
The Chinese Muslims are known as Uighurs, part of a Muslim minority from western China. They have been reliably reported to have been systematically persecuted by Chinese authorities.
The legislators’ charges came from leaders of the Congressional Human Rights Committee (CHRC), Co-Chairmen Rep. Jim McGovern, a Massachusetts Democrat, and Virginia Republican Rep. Frank Wolf. The two lawmakers condemned “the harsh pre-Olympic crackdown” in the Xinjiang Uighur Autonomous Region (XUAR) of China. They also expressed their strong concern over credible reports detailing abuses of due process and rule of law in the July 9th closed trial.
In a statement, Rep. Wolf said, “The Chinese government should not be permitted to use the War on Terror or Olympic security as a front to persecute the Uighurs. These ‘trials’ appear to be no more than a ploy to oppress religious freedom and ethnic minority groups.”
Rep. McGovern added, “China must allow minimum standards of international law, and must open trials to independent observers. China clearly fails in its obligations under international law and certainly fails in its commitments to improve human rights as the host of the 2008 Olympic Games.”
The group called on the Chinese government to “uphold the commitments they made to the international community when they were awarded the privilege of hosting the 2008 Olympic Games and improve their deplorable human rights record.”
The Uighurs also made other news in the U.S. last week, when a federal appeals court ruled that the U.S. military improperly labeled Huzaifa Parhat, a Chinese Muslim held at Guantanamo Bay, an “enemy combatant.” The Court ordered that he be released, transferred or granted a new hearing. The ruling by the U.S. Court of Appeals in Washington marks the first time a federal court has weighed in on the issue of a Guantanamo detainee’s classification and granted him the opportunity to try to secure his release through civilian courts.
A lawyer for Parhat, who has been kept virtually incommunicado for more than six years, said he and other members of Parhat’s legal team would seek to have him freed immediately.
Parhat is one of 17 Uighur Muslims still being held at Guantanamo even though the U.S. government acknowledges they pose no threat.
The decision was the latest in a series of legal setbacks for the George W. Bush administration and its efforts to defend the military commissions process at the U.S. naval base at Guantanamo Bay, Cuba.
The order came just days after the Supreme Court ruled that the approximately 270 remaining detainees at Guantanamo have a constitutional right of habeas corpus, which allows them to challenge their detention in federal courts. That ruling marked the third time since 2004 that the nation’s highest court has limited the government’s power to use the military to detain and prosecute foreign nationals at Guantanamo.
The appeals court specified that Parhat could “seek release immediately” through a writ of habeas corpus in light of the Supreme Court’s recent decision. Parhat’s case and scores like it had been put on hold until the Supreme Court made its ruling on the habeas corpus issue.
“Now all of these cases have been revived and this is the first case to move forward,” said David Cole, a constitutional law professor at Georgetown University. “And here is somebody that the military has been holding on to for six years and the federal court now says he shouldn’t have been held in the first place.”
He added, “Absent this independent judicial review, he might have been sitting there for another 10 to 15 years. Now he has a chance to find freedom,” said Cole, one of the nation’s preeminent constitutional scholars.
Two years ago, five Uighurs were released from Guantanamo to seek asylum in Albania, after the United States said it could not return them to China because they would face persecution there. The released Uighers live in an Albanian refugee camp, unable to speak the language and forbidden to work.
All of 17 Uighurs being held at Guantanamo have been cleared for release as part of annual reviews. The government says that, while they are still designated enemy combatants, they are not considered significant threats or to have further intelligence value.”
The Uighurs are part of a large group of Guantanamo detainees who have been cleared for release, but nonetheless remain in detention. The State Department claims it cannot find countries willing to accept these detainees. U.S authorities have balked at allowing the Uighurs into the United States.
Parhat, 37, and the other Uighurs were captured in Afghanistan after the Sept. 11 attacks. He insisted he sought refuge there from an oppressive Chinese government and never fought against the United States. The U.S. government has produced no evidence suggesting that he ever intended to fight, but it designated him an enemy combatant because of alleged links to the East Turkestan Islamic Movement, a separatist group demanding independence from China that Washington says has links to Al Qaeda.
While refusing to return the Uighers to China, the U.S. did allow Chinese officials to visit Guantanamo to interrogate the Uighur detainees.
Despite the court’s ruling, Parhat’s future is unclear. And while the U.S. government ponders its legal options, says Human Rights Watch, Parhat and his 16 fellow Uighurs continue their life in a cage.
Parhat wakes at 4:30 or 5:00 A.M., prays, goes back to sleep, walks in circles -- north, south, east, west -- round his 6-by-12 foot cell for an hour, goes back to sleep for another two or more hours, wakes and reads the Koran or a magazine (written in a language that he does not understand), pray, walks in circles once more, eats lunch, prays, walks in circles, prays, walk in circles, goes back to sleep at 10:00 p.m.
As a federal appeals court ruled that the U.S. military improperly labeled a Chinese Muslim held at Guantanamo Bay an “enemy combatant” and ordered that he be released, transferred or granted a new hearing, an influential Congressional committee delivered a scathing criticism of China’s closed trial of 15 co-religionists on terrorism charges -- resulting in the immediate execution of two defendants, three suspended death sentences, and ten sentences to life imprisonment.
The Chinese Muslims are known as Uighurs, part of a Muslim minority from western China. They have been reliably reported to have been systematically persecuted by Chinese authorities.
The legislators’ charges came from leaders of the Congressional Human Rights Committee (CHRC), Co-Chairmen Rep. Jim McGovern, a Massachusetts Democrat, and Virginia Republican Rep. Frank Wolf. The two lawmakers condemned “the harsh pre-Olympic crackdown” in the Xinjiang Uighur Autonomous Region (XUAR) of China. They also expressed their strong concern over credible reports detailing abuses of due process and rule of law in the July 9th closed trial.
In a statement, Rep. Wolf said, “The Chinese government should not be permitted to use the War on Terror or Olympic security as a front to persecute the Uighurs. These ‘trials’ appear to be no more than a ploy to oppress religious freedom and ethnic minority groups.”
Rep. McGovern added, “China must allow minimum standards of international law, and must open trials to independent observers. China clearly fails in its obligations under international law and certainly fails in its commitments to improve human rights as the host of the 2008 Olympic Games.”
The group called on the Chinese government to “uphold the commitments they made to the international community when they were awarded the privilege of hosting the 2008 Olympic Games and improve their deplorable human rights record.”
The Uighurs also made other news in the U.S. last week, when a federal appeals court ruled that the U.S. military improperly labeled Huzaifa Parhat, a Chinese Muslim held at Guantanamo Bay, an “enemy combatant.” The Court ordered that he be released, transferred or granted a new hearing. The ruling by the U.S. Court of Appeals in Washington marks the first time a federal court has weighed in on the issue of a Guantanamo detainee’s classification and granted him the opportunity to try to secure his release through civilian courts.
A lawyer for Parhat, who has been kept virtually incommunicado for more than six years, said he and other members of Parhat’s legal team would seek to have him freed immediately.
Parhat is one of 17 Uighur Muslims still being held at Guantanamo even though the U.S. government acknowledges they pose no threat.
The decision was the latest in a series of legal setbacks for the George W. Bush administration and its efforts to defend the military commissions process at the U.S. naval base at Guantanamo Bay, Cuba.
The order came just days after the Supreme Court ruled that the approximately 270 remaining detainees at Guantanamo have a constitutional right of habeas corpus, which allows them to challenge their detention in federal courts. That ruling marked the third time since 2004 that the nation’s highest court has limited the government’s power to use the military to detain and prosecute foreign nationals at Guantanamo.
The appeals court specified that Parhat could “seek release immediately” through a writ of habeas corpus in light of the Supreme Court’s recent decision. Parhat’s case and scores like it had been put on hold until the Supreme Court made its ruling on the habeas corpus issue.
“Now all of these cases have been revived and this is the first case to move forward,” said David Cole, a constitutional law professor at Georgetown University. “And here is somebody that the military has been holding on to for six years and the federal court now says he shouldn’t have been held in the first place.”
He added, “Absent this independent judicial review, he might have been sitting there for another 10 to 15 years. Now he has a chance to find freedom,” said Cole, one of the nation’s preeminent constitutional scholars.
Two years ago, five Uighurs were released from Guantanamo to seek asylum in Albania, after the United States said it could not return them to China because they would face persecution there. The released Uighers live in an Albanian refugee camp, unable to speak the language and forbidden to work.
All of 17 Uighurs being held at Guantanamo have been cleared for release as part of annual reviews. The government says that, while they are still designated enemy combatants, they are not considered significant threats or to have further intelligence value.”
The Uighurs are part of a large group of Guantanamo detainees who have been cleared for release, but nonetheless remain in detention. The State Department claims it cannot find countries willing to accept these detainees. U.S authorities have balked at allowing the Uighurs into the United States.
Parhat, 37, and the other Uighurs were captured in Afghanistan after the Sept. 11 attacks. He insisted he sought refuge there from an oppressive Chinese government and never fought against the United States. The U.S. government has produced no evidence suggesting that he ever intended to fight, but it designated him an enemy combatant because of alleged links to the East Turkestan Islamic Movement, a separatist group demanding independence from China that Washington says has links to Al Qaeda.
While refusing to return the Uighers to China, the U.S. did allow Chinese officials to visit Guantanamo to interrogate the Uighur detainees.
Despite the court’s ruling, Parhat’s future is unclear. And while the U.S. government ponders its legal options, says Human Rights Watch, Parhat and his 16 fellow Uighurs continue their life in a cage.
Parhat wakes at 4:30 or 5:00 A.M., prays, goes back to sleep, walks in circles -- north, south, east, west -- round his 6-by-12 foot cell for an hour, goes back to sleep for another two or more hours, wakes and reads the Koran or a magazine (written in a language that he does not understand), pray, walks in circles once more, eats lunch, prays, walks in circles, prays, walk in circles, goes back to sleep at 10:00 p.m.
Thursday, July 03, 2008
THOSE PESKY JUDICIAL ACTIVISTS
By William Fisher
Maher Arar, the poster boy for the U.S. Government’s program of “extraordinary rendition” has again been denied his day in court and Congressional efforts to rein in the Bush Administration’s widespread use of national security as a defense appear to be foundering.
Late last month, a federal Court of Appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller, and other senior government officials, could not be heard. After government lawyers invoked the “state secrets” privilege, the court concluded that hearing Arar’s claims would interfere with sensitive matters of foreign policy and national security.
Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York’s John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to U.S. authorities by the Canadian Government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of Al Qaeda.
When the government invokes the “state secrets” privilege, Federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, it dismissed a suit over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition."
In a rare move, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list.
In one of the Arar case’s more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. Government that denied Arar admission to America.
Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada’s role in his rendition and awarded him a $10 million settlement.
The U.S. Government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the U.S. had mishandled the case. “We do not think that this case was handled as it should have been,” Ms. Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”
The court also rejected Arar’s claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.
Arar’s lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Constitutional Rights (CCR), told us, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”
Maria LaHood, a senior CCR attorney, told us that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case.
She added, “Giving short shrift to the facts, the majority opinion grants impunity to U.S. officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The Defendants have again blocked Maher's access to justice, this time with the Court's seal of approval.”
Meanwhile, legislation to curb the government’s use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania’s Arlen Specter, the senior Republican on the Judiciary Committee.
It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.
"It's long past time for Congress to address the state secrets privilege. Congress needs to ensure -- and the American people need to feel confident -- that the courts are adjudicating the privilege properly and not just giving the Executive a free pass. No one in America should be above the law. That's why this legislation is so critical,” Sen. Kennedy said.
But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall.
Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June 2007 on the report of the Department of Homeland Security Office of Inspector General on Arar’s removal.
Arar testified at the hearing – the first time he has appeared before any U.S. governmental body. His testimony was via video because he is still on the government’s ”no-fly” watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not.
At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the American government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants.
Earlier, Skinner's testimony and a 50-page report found that U.S. immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on “ambiguous" assurances from Syria that he would not be. Skinner also questioned U.S. officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture.
Barring the unlikely chance that the Supremes will agree to hear this case, the Bushies will see it as merely another notch in the belt of injustice it has so successfully tied around the neck of the lady with the scales. It will likely fall the next president to start undoing Dubya’s sterling legacy.
So the question is: Who do you think is more likely to take this issue on, starting with an official government apology -- Obama or McCain?
Maher Arar, the poster boy for the U.S. Government’s program of “extraordinary rendition” has again been denied his day in court and Congressional efforts to rein in the Bush Administration’s widespread use of national security as a defense appear to be foundering.
Late last month, a federal Court of Appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller, and other senior government officials, could not be heard. After government lawyers invoked the “state secrets” privilege, the court concluded that hearing Arar’s claims would interfere with sensitive matters of foreign policy and national security.
Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York’s John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to U.S. authorities by the Canadian Government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of Al Qaeda.
When the government invokes the “state secrets” privilege, Federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, it dismissed a suit over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition."
In a rare move, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list.
In one of the Arar case’s more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. Government that denied Arar admission to America.
Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada’s role in his rendition and awarded him a $10 million settlement.
The U.S. Government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the U.S. had mishandled the case. “We do not think that this case was handled as it should have been,” Ms. Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”
The court also rejected Arar’s claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.
Arar’s lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Constitutional Rights (CCR), told us, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”
Maria LaHood, a senior CCR attorney, told us that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case.
She added, “Giving short shrift to the facts, the majority opinion grants impunity to U.S. officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The Defendants have again blocked Maher's access to justice, this time with the Court's seal of approval.”
Meanwhile, legislation to curb the government’s use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania’s Arlen Specter, the senior Republican on the Judiciary Committee.
It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.
"It's long past time for Congress to address the state secrets privilege. Congress needs to ensure -- and the American people need to feel confident -- that the courts are adjudicating the privilege properly and not just giving the Executive a free pass. No one in America should be above the law. That's why this legislation is so critical,” Sen. Kennedy said.
But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall.
Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June 2007 on the report of the Department of Homeland Security Office of Inspector General on Arar’s removal.
Arar testified at the hearing – the first time he has appeared before any U.S. governmental body. His testimony was via video because he is still on the government’s ”no-fly” watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not.
At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the American government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants.
Earlier, Skinner's testimony and a 50-page report found that U.S. immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on “ambiguous" assurances from Syria that he would not be. Skinner also questioned U.S. officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture.
Barring the unlikely chance that the Supremes will agree to hear this case, the Bushies will see it as merely another notch in the belt of injustice it has so successfully tied around the neck of the lady with the scales. It will likely fall the next president to start undoing Dubya’s sterling legacy.
So the question is: Who do you think is more likely to take this issue on, starting with an official government apology -- Obama or McCain?
Monday, June 09, 2008
Yes, we can – pander.
By William Fisher
Barack Obama’s recent speech to the American Israel Public Affairs Council – AIPAC – dragged many of his supporters back from denial to political reality.
These Obamakins are hungry to believe his candidacy signals an authentic change in how politicians behave and the way American politics are run.
They’ve had it with the slice-and-dice-say-and-do-anything-to-win Karl Rove playbook. They’re weary of political messages that tell us more about focus groups than about candidates. They’re disgusted with the dumbing down of our country’s political discourse.
And after eight years of George W. Bush, who could blame them?
But Barack’s AIPAC speech left many of them wondering if they were perhaps a tad naïve.
Much of what the Illinois Senator told his Jewish-American audience in Miami was totally predictable. He confirmed America’s everlasting friendship with Israel. He vowed we would always be there to protect the security of the Middle East’s only democracy. He pledged his allegiance to a two-state solution.
But he went further. He said Israel should always be a Jewish state – a thumb in the eye of Palestinians pushing their right of return. And he pledged that Jerusalem would always be the capital of Israel and that it would be undivided. That was an even bigger thumb in the eye.
These were inflammatory – and unnecessary – promises we would expect from a novice or an ideologue – or a politician pandering to a key constituency.
The next American president will have to lead our efforts to play honest broker between the Israelis and the Palestinians. This is a role only the U.S. can play because there is no other nation that has our relationship of trust with Israel.
Hopefully, if Sen. Obama wins the election, he won’t wait until the last year of his presidency to re-start the peace process. But whenever he starts, America’s legitimacy and credibility as an honest broker won’t be helped by his over-the-top and gratuitous remarks.
Because honest and even-handed negotiations can’t be enhanced by trashing what one side or the other considers a core position. Even if it plays well in Miami.
What would we be calling these remarks if they came from John McCain? Right – pandering 101!
But what can we call them if they come from the guy who has staked his political future – and ours -- on the promise of change?
How about sad?
Barack Obama’s recent speech to the American Israel Public Affairs Council – AIPAC – dragged many of his supporters back from denial to political reality.
These Obamakins are hungry to believe his candidacy signals an authentic change in how politicians behave and the way American politics are run.
They’ve had it with the slice-and-dice-say-and-do-anything-to-win Karl Rove playbook. They’re weary of political messages that tell us more about focus groups than about candidates. They’re disgusted with the dumbing down of our country’s political discourse.
And after eight years of George W. Bush, who could blame them?
But Barack’s AIPAC speech left many of them wondering if they were perhaps a tad naïve.
Much of what the Illinois Senator told his Jewish-American audience in Miami was totally predictable. He confirmed America’s everlasting friendship with Israel. He vowed we would always be there to protect the security of the Middle East’s only democracy. He pledged his allegiance to a two-state solution.
But he went further. He said Israel should always be a Jewish state – a thumb in the eye of Palestinians pushing their right of return. And he pledged that Jerusalem would always be the capital of Israel and that it would be undivided. That was an even bigger thumb in the eye.
These were inflammatory – and unnecessary – promises we would expect from a novice or an ideologue – or a politician pandering to a key constituency.
The next American president will have to lead our efforts to play honest broker between the Israelis and the Palestinians. This is a role only the U.S. can play because there is no other nation that has our relationship of trust with Israel.
Hopefully, if Sen. Obama wins the election, he won’t wait until the last year of his presidency to re-start the peace process. But whenever he starts, America’s legitimacy and credibility as an honest broker won’t be helped by his over-the-top and gratuitous remarks.
Because honest and even-handed negotiations can’t be enhanced by trashing what one side or the other considers a core position. Even if it plays well in Miami.
What would we be calling these remarks if they came from John McCain? Right – pandering 101!
But what can we call them if they come from the guy who has staked his political future – and ours -- on the promise of change?
How about sad?
Tuesday, May 20, 2008
GITMO FOREVER?
By William Fisher
Key elements of the Bush Administration’s anti-terrorist detention policies appear to be unraveling, according to human rights and legal advocates.
In the past two weeks alone, a military judge has disqualified a Pentagon legal official from participating in the Guantanamo war crimes trial of Salim Ahmed Hamdan, a former driver for Osama bin Laden, because he had pushed for "sexy" cases that would capture attention. The U.S. government dropped all charges against the man alleged to have been the "20th hijacker" in the September 11th 2001 terrorist attacks because it is believed his military commission trial would expose evidence obtained through torture. And, in a totally unexpected move, Al Jazeera cameraman Sami Al-Haj was released from Guantanamo after six years in detention without charge.
In the Hamdan case, the judge ruled that the military must appoint a replacement to Air Force Brig. Gen. Thomas Hartmann, the legal adviser to the military tribunals, before the Yemeni’s scheduled trial in June.
Hamdan is charged with supporting terrorism and faces life in prison if convicted. His trial would be the first U.S.war crimes trial for a Guantanamo prisoner.
The dropped charges were against Mohammad al-Qahtani, who has been held at Guantanamo Bay since 2002, following his detention in Afghanistan. In February, he was charged with conspiracy, terrorism, and murder in violation of the laws of war, among other offences.
The Center for Constitutional Rights (CCR), which has provided many of the lawyers representing Guantanamo detainees, said it believed the charges against al-Qahtani had been dropped because he had been tortured. "The government's claims against our client were based on unreliable evidence obtained through torture at Guantanamo," the group said.
"Using torture to string together a web of so-called evidence is illegal, immoral and cannot be the basis for a fair trial," the CCR added.
Defense lawyers say Hartmann rushed proceedings in hopes of speedy convictions and sought to improperly influence who was prosecuted, selecting cases based on their potential to sway public opinion of the process.
At an April 28 hearing on the issue, former chief prosecutor Air Force Colonel Morris Davis testified that Hartmann had pushed for "sexy" cases that would capture attention.
Colonel Davis resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
As legal adviser, Hartmann was charged with providing counsel to the official who makes key decisions such as whether to approve charges against individual detainees.
According to Clive Stafford Smith, a British lawyer who represents a number of Guantanamo detainees, Hartmann “was basically telling (Col. Morris) what to do and saying, ‘Look, there’s an election coming up. It’s in November. We’ve got to have prosecutions now against the high-profile guys. It doesn’t matter if you’re not ready to prosecute them, but we need Khalid Sheikh Mohammed on trial because of electioneering’.”
Prosecutors deny that Hartmann never subjected subordinates to unlawful influence.
While the judge’s ruling directly affects only Hamdan's case, lawyers for the Yemeni detainee said it raises questions about the validity of charges that Hartmann was involved in preparing against other suspects at Guantanamo.
A case currently before the Supreme Court -- Boumediene v. Bush – is challenging the legality of military commissions under the constitution. The Court is expected to rule in the next two months.
Hamdan has already become part of American jurisprudence. In 2005, he brought suit against then Defense Secretary Rumsfeld. The Supreme Court ruled in 2006 that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.
The ruling, a rebuke to the administration and its aggressive anti-terror policies, said the proposed trials were illegal under U.S. law and Geneva Conventions.
Three years ago, the Supreme Court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this followup case, the justices focused solely on the issue of trials for some of the men.
Published reports in 2006 described al Qahtani's interrogation. The reports -- based on leaks from the Pentagon -- said he had been subjected to stress positions, sleep deprivation, extreme temperatures, humiliation and other highly coercive practices.
Some lawyers believe military officers did not want to face a discussion of these interrogation techniques in court, nor to have their case collapse publicly because the evidence obtained using such techniques might be ruled inadmissible.
It was recently revealed that Cheney, Secretary of State Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former CIA chief George Tenet, and former Attorney General John Ashcroft, had met in the White House and personally oversaw and approved the torture by authorizing specific torture techniques including waterboarding. President Bush has admitted he knew and approved of their actions.
Human and legal rights advocates have been outspoken on the military commissions issue. Columbia University law professor Scott Horton told us he believes the process used to establish the commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
This viewed is shared by Michael Ratner, CCR’s president, who told us that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury -- only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
And Gabor Rona, International Legal Director for advocacy group Human Rights First, told us, “Much of the world considers the death penalty an international human rights violation even when imposed after the fairest of procedures. To impose it through an untested, ad hoc process that has not yet successfully completed a trial even for a misdemeanor will likely be viewed with deep skepticism.”
In related developments, the American Civil Liberties Union (ACLU), has joined with the National Association of Criminal Defense Lawyers (NACDL), to assemble defense teams to assist in the representation of detainees facing prosecution in the military commissions proceedings at Guantánamo “in order to protect American values of fairness and justice and the constitutional guarantee of due process.”
And another legal advocacy group, the National Lawyers Guild (NLG) called on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute senior Bush Administration officials and lawyers for their role in the torture of prisoners in U.S. custody.
Since the U.S. detention facility on this southeastern corner of Cuba opened in January 2002, only one military commission has reached a verdict, when Australian David Hicks pleaded guilty to terrorism charges in March 2007. It was part of a politically orchestrated deal that returned Hicks to his home country to serve out his sentence. He was released last December.
The Al Jazeera cameraman, who had been on a protracted hunger strike during his detention, was flown back to his native Sudan. The Pentagon has not explained his release.
Key elements of the Bush Administration’s anti-terrorist detention policies appear to be unraveling, according to human rights and legal advocates.
In the past two weeks alone, a military judge has disqualified a Pentagon legal official from participating in the Guantanamo war crimes trial of Salim Ahmed Hamdan, a former driver for Osama bin Laden, because he had pushed for "sexy" cases that would capture attention. The U.S. government dropped all charges against the man alleged to have been the "20th hijacker" in the September 11th 2001 terrorist attacks because it is believed his military commission trial would expose evidence obtained through torture. And, in a totally unexpected move, Al Jazeera cameraman Sami Al-Haj was released from Guantanamo after six years in detention without charge.
In the Hamdan case, the judge ruled that the military must appoint a replacement to Air Force Brig. Gen. Thomas Hartmann, the legal adviser to the military tribunals, before the Yemeni’s scheduled trial in June.
Hamdan is charged with supporting terrorism and faces life in prison if convicted. His trial would be the first U.S.war crimes trial for a Guantanamo prisoner.
The dropped charges were against Mohammad al-Qahtani, who has been held at Guantanamo Bay since 2002, following his detention in Afghanistan. In February, he was charged with conspiracy, terrorism, and murder in violation of the laws of war, among other offences.
The Center for Constitutional Rights (CCR), which has provided many of the lawyers representing Guantanamo detainees, said it believed the charges against al-Qahtani had been dropped because he had been tortured. "The government's claims against our client were based on unreliable evidence obtained through torture at Guantanamo," the group said.
"Using torture to string together a web of so-called evidence is illegal, immoral and cannot be the basis for a fair trial," the CCR added.
Defense lawyers say Hartmann rushed proceedings in hopes of speedy convictions and sought to improperly influence who was prosecuted, selecting cases based on their potential to sway public opinion of the process.
At an April 28 hearing on the issue, former chief prosecutor Air Force Colonel Morris Davis testified that Hartmann had pushed for "sexy" cases that would capture attention.
Colonel Davis resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
As legal adviser, Hartmann was charged with providing counsel to the official who makes key decisions such as whether to approve charges against individual detainees.
According to Clive Stafford Smith, a British lawyer who represents a number of Guantanamo detainees, Hartmann “was basically telling (Col. Morris) what to do and saying, ‘Look, there’s an election coming up. It’s in November. We’ve got to have prosecutions now against the high-profile guys. It doesn’t matter if you’re not ready to prosecute them, but we need Khalid Sheikh Mohammed on trial because of electioneering’.”
Prosecutors deny that Hartmann never subjected subordinates to unlawful influence.
While the judge’s ruling directly affects only Hamdan's case, lawyers for the Yemeni detainee said it raises questions about the validity of charges that Hartmann was involved in preparing against other suspects at Guantanamo.
A case currently before the Supreme Court -- Boumediene v. Bush – is challenging the legality of military commissions under the constitution. The Court is expected to rule in the next two months.
Hamdan has already become part of American jurisprudence. In 2005, he brought suit against then Defense Secretary Rumsfeld. The Supreme Court ruled in 2006 that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.
The ruling, a rebuke to the administration and its aggressive anti-terror policies, said the proposed trials were illegal under U.S. law and Geneva Conventions.
Three years ago, the Supreme Court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this followup case, the justices focused solely on the issue of trials for some of the men.
Published reports in 2006 described al Qahtani's interrogation. The reports -- based on leaks from the Pentagon -- said he had been subjected to stress positions, sleep deprivation, extreme temperatures, humiliation and other highly coercive practices.
Some lawyers believe military officers did not want to face a discussion of these interrogation techniques in court, nor to have their case collapse publicly because the evidence obtained using such techniques might be ruled inadmissible.
It was recently revealed that Cheney, Secretary of State Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former CIA chief George Tenet, and former Attorney General John Ashcroft, had met in the White House and personally oversaw and approved the torture by authorizing specific torture techniques including waterboarding. President Bush has admitted he knew and approved of their actions.
Human and legal rights advocates have been outspoken on the military commissions issue. Columbia University law professor Scott Horton told us he believes the process used to establish the commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
This viewed is shared by Michael Ratner, CCR’s president, who told us that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury -- only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
And Gabor Rona, International Legal Director for advocacy group Human Rights First, told us, “Much of the world considers the death penalty an international human rights violation even when imposed after the fairest of procedures. To impose it through an untested, ad hoc process that has not yet successfully completed a trial even for a misdemeanor will likely be viewed with deep skepticism.”
In related developments, the American Civil Liberties Union (ACLU), has joined with the National Association of Criminal Defense Lawyers (NACDL), to assemble defense teams to assist in the representation of detainees facing prosecution in the military commissions proceedings at Guantánamo “in order to protect American values of fairness and justice and the constitutional guarantee of due process.”
And another legal advocacy group, the National Lawyers Guild (NLG) called on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute senior Bush Administration officials and lawyers for their role in the torture of prisoners in U.S. custody.
Since the U.S. detention facility on this southeastern corner of Cuba opened in January 2002, only one military commission has reached a verdict, when Australian David Hicks pleaded guilty to terrorism charges in March 2007. It was part of a politically orchestrated deal that returned Hicks to his home country to serve out his sentence. He was released last December.
The Al Jazeera cameraman, who had been on a protracted hunger strike during his detention, was flown back to his native Sudan. The Pentagon has not explained his release.
Wednesday, May 14, 2008
A Muslim Spiritual Perspective on Palestine/Israel (with a dash of Obama)
The article below is by Omid Safi, a friend and professor of Islamic studies at the University of North Carolina. Omid is one of the leading Muslim public intellectuals in the country, and is committed to social justice, compassion,and pluralism. This article, written for Tikkun magazine, presents an unconventional view of the future of Israel and of the Palestinian people.
By Omid Safi
I begin my reflections on the 60th anniversary of the establishing of the modern nation-state of Israel, alongside with the events commemorated by Palestinians as the Nakba (The Catastrophe), with a reminder of an event that at first sight might seem to be unrelated: the March 2008 speech by Barack Obama on the need to address racial issues in the United States in order to form a More Perfect Union.
In this speech, Barack Obama a Christian spiritual progressive who would surely find a home among many committed to the Tikkun ideals, spoke about how there is no way for us to immediately and magically get beyond our racial divisions. There is, however, a way for us to begin addressing issues of racial justice by confronting systematic injustices inflicted upon black communities as well as the real economic anxieties of white communities. Obama stressed that we can “address our past without becoming victims of our past.” It is in this spirit that I wish to address the Palestinian Israel situation/tragedy.
Jews have historically been persecuted and marginalized as few other communities in the history of the West have been. The rise of Zionism in many ways was a response to this persecution. While Zionism did begin with European Jews, it is in many ways part and parcel of the same milieu that saw the rise of other nationalist movements. For many Jews, the desire to return to what they have seen as their ancestral homeland is also real, and was a joyous cause for celebration after centuries of exile. Furthermore, there is little doubt that the establishing of the state of Israel has had a positive impact on the survival of Judaism—and Jews—in the Western world that for far too long had attempted to eradicate them. Furthermore, the concerns of the Israeli civilian community for genuine and meaningful security are real, and must also be addressed.
And yet part of our attempts to see with two eyes, hear with two ears, and yet feel with one heart is to recognize and remember that the same establishing of Israel is remembered differently, radically differently, by Palestinians. Going back to the 1917 Balfour Declaration, there has been a history of colonial support for the creation of Israel that remains for many Arabs and Muslims a painful reminder of centuries of oppressive foreign occupation and domination. The establishing of Israel in 1948 involved the forceful and violent ethnic cleansing of some 750,000 Palestinians from their ancestral homelands.[1] The homes and lands of these indigenous Arab inhabitants of Palestine were confiscated and handed over to Jewish immigrants. In a matter of two generations, Palestinians who had made up 90% of the inhabitants of Palestine were forced to become a persecuted minority in their own homeland, or perpetually homeless exiles, much as Jews themselves had been for centuries before. The other major act of injustice on behalf of Israel has been the forty-year occupation of West Bank and Gaza, combined with draconian measures that inflict collective punishments upon Palestinians, in both the Occupied Territories and inside Israel itself. These systematic injustices too are real, and the sub-human condition that many Palestinians live in must be addressed if words like justice are to rise above being hollow mockeries of their lofty reality.
All of the above is too well-known to need documentation at this point. And yet our point is quite simple: if we are to have a common future for all of us in this sacred land, there must be a just and compassionate way to atone for these atrocious realities of the past and the present.
I write these words not as a nationalist, but as a person of faith who remains convinced that the Divine qualities of al-Rahman and al-Rahim, the Compassionate and the Forgiving Merciful, are the two greatest Divine qualities that human beings can and should embody. I write as one of many who are certain that forgiveness and reconciliation are indeed possible, as they were in South Africa, so long as the reconciliation is an exercise in Truth and Reconciliation.[2] The truth must be told, as bitter as it might be to some of us, and as unpleasant to hear about it as it is associated with the very events that bring joy to others.
I also write these words as a religious humanist, and a historian, whose issue is not with the existence of Jews, or Muslims, or Christians in this holy land, but with the notion that the state somehow belongs to one ethnic or religious group. It is that arrogance of nationalism that I reject in favor of a pluralistic and historically more accurate vision.
I remember that a thousand years ago, over 85% of all Jews lived among Muslims of Arab and Persian backgrounds. I remember that Jews achieved their “Golden Age” in Andalucia, ruled by Muslims. I remember that it was the Muslims who received the majority of the Jewish exiles from Andalucia. I remember that it was the Muslim Ottomans who provided by the welfare and security of the Jewish community, to the point of voluntarily settling Jewish families in the region, including in Jerusalem. We have lived together in the past, and can live together again.
The problem, therefore, is not that of presence of Jews in the Holy Land, the issue is an unjust interpretation of Zionism that has sought and seeks to rid the land of Palestine and Israel of its Arab inhabitants, and render them second-class citizens in their own ancestral homeland. Only after addressing these issues can there be hope to realize the creation of a community where Jews, Christians, and Muslims can live side by side with one another in full dignity and equality.
Speaking on behalf of all those resonate with the dream of such a new Israel, such a new Palestine, that I say the following: We too dare to dream, we dream of a place, of land, a land of place, where Muslim, Christian, and Jew live side by side, where Jerusalem becomes once again the Holy city, the Sacred City, simultaneously al-Quds and Zion.[3] We too have the audacity to hope and dream that God’s love encompass all of God’s children, Jewish and Muslim, Christian, and others. In that dream, we reject the notion, any notion, that this land belong exclusively to one people, or that others are at best tolerated guests. Rights, if they are meaningful, belong to all, otherwise they are nothing more than privileges guaranteed to a chosen few, which effectively work as frameworks for oppression.
There are some Jews and some Arabs who if given a chance would no doubt wish to purge the land of the other. We see this hateful wish written into the charters of movements like HAMAS, which has responded to the Israeli occupation with its own injustice, by inflicting violence upon Israeli society. And as many Palestinians have mournfully reminded us, the creation of Israel has involved the destruction of their own society not as an abstract dream but as an all too vivid reality. It is vital for us to address these past and present realities, and yet we remain hopeful that by addressing them we can avoid the situation of forever remaining their victim.
We dare to dream of a place where the majority of people want to live together, to co-exist, perhaps initially uncomfortably—but we have no choice today other than learning to live together. And We remain convinced that God creates us in love, that love is natural to our state, and it is in fact hate and mistrust that are un-natural. We are taught to hate one another, and if we have been taught hatred, we can un-teach hatred and replace it with an inclusive love. Our hearts are big enough for all of us.
Martin Luther King taught us that we have a choice: nonviolent coexistence or violent co-annihilation.[4] We have gone down the path of attempting to violently annihilate one another, and it has gotten us nowhere but down this vortex of pain and destruction. It is time to try the higher path of nonviolent coexistence, illuminated by love.
We dream of a day where our children, Jewish children and Arab children, go to school together, live in the same communities, and work the same fields together. That day is possible, and our co-existence is possible, but only if we dare to rise above our own worst fears, and reach out to others who wish to co-exist with us. Martin was right: we are all bound up in an inescapable network of mutuality. Buber was right: we achieve our full humanity when the I is projected into the Thou. Jesus and Muhammad were right: that which we do to the least of humanity we do to one another. May it be that when the 100th anniversary of Israel is celebrated, it is also a celebration of how the dreams of multiple communities became realized, not one at the expense of another. It is to that common humanity that we appeal. May the path to Truth and Reconciliation begin with each of us, today.
[1] Ilan Pappe, The Ethnic Cleansing of Palestine, (Oxford: Oneworld: 2006);
[2] For a spiritual perspective, see Desmond Tutu, No Future Without Forgiveness, (New York: Image, 1999).
[3] There are many who share this dream, including Christians like Elias Chacour, the many Israeli peace organizations, and members of the Jerusalem Peace Makers such as Sheikh Abdul Aziz Bukhari.
[4] Martin Luther King, Jr. and James M. Washington, A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (HarperCollins, 1986, 1991).
By Omid Safi
I begin my reflections on the 60th anniversary of the establishing of the modern nation-state of Israel, alongside with the events commemorated by Palestinians as the Nakba (The Catastrophe), with a reminder of an event that at first sight might seem to be unrelated: the March 2008 speech by Barack Obama on the need to address racial issues in the United States in order to form a More Perfect Union.
In this speech, Barack Obama a Christian spiritual progressive who would surely find a home among many committed to the Tikkun ideals, spoke about how there is no way for us to immediately and magically get beyond our racial divisions. There is, however, a way for us to begin addressing issues of racial justice by confronting systematic injustices inflicted upon black communities as well as the real economic anxieties of white communities. Obama stressed that we can “address our past without becoming victims of our past.” It is in this spirit that I wish to address the Palestinian Israel situation/tragedy.
Jews have historically been persecuted and marginalized as few other communities in the history of the West have been. The rise of Zionism in many ways was a response to this persecution. While Zionism did begin with European Jews, it is in many ways part and parcel of the same milieu that saw the rise of other nationalist movements. For many Jews, the desire to return to what they have seen as their ancestral homeland is also real, and was a joyous cause for celebration after centuries of exile. Furthermore, there is little doubt that the establishing of the state of Israel has had a positive impact on the survival of Judaism—and Jews—in the Western world that for far too long had attempted to eradicate them. Furthermore, the concerns of the Israeli civilian community for genuine and meaningful security are real, and must also be addressed.
And yet part of our attempts to see with two eyes, hear with two ears, and yet feel with one heart is to recognize and remember that the same establishing of Israel is remembered differently, radically differently, by Palestinians. Going back to the 1917 Balfour Declaration, there has been a history of colonial support for the creation of Israel that remains for many Arabs and Muslims a painful reminder of centuries of oppressive foreign occupation and domination. The establishing of Israel in 1948 involved the forceful and violent ethnic cleansing of some 750,000 Palestinians from their ancestral homelands.[1] The homes and lands of these indigenous Arab inhabitants of Palestine were confiscated and handed over to Jewish immigrants. In a matter of two generations, Palestinians who had made up 90% of the inhabitants of Palestine were forced to become a persecuted minority in their own homeland, or perpetually homeless exiles, much as Jews themselves had been for centuries before. The other major act of injustice on behalf of Israel has been the forty-year occupation of West Bank and Gaza, combined with draconian measures that inflict collective punishments upon Palestinians, in both the Occupied Territories and inside Israel itself. These systematic injustices too are real, and the sub-human condition that many Palestinians live in must be addressed if words like justice are to rise above being hollow mockeries of their lofty reality.
All of the above is too well-known to need documentation at this point. And yet our point is quite simple: if we are to have a common future for all of us in this sacred land, there must be a just and compassionate way to atone for these atrocious realities of the past and the present.
I write these words not as a nationalist, but as a person of faith who remains convinced that the Divine qualities of al-Rahman and al-Rahim, the Compassionate and the Forgiving Merciful, are the two greatest Divine qualities that human beings can and should embody. I write as one of many who are certain that forgiveness and reconciliation are indeed possible, as they were in South Africa, so long as the reconciliation is an exercise in Truth and Reconciliation.[2] The truth must be told, as bitter as it might be to some of us, and as unpleasant to hear about it as it is associated with the very events that bring joy to others.
I also write these words as a religious humanist, and a historian, whose issue is not with the existence of Jews, or Muslims, or Christians in this holy land, but with the notion that the state somehow belongs to one ethnic or religious group. It is that arrogance of nationalism that I reject in favor of a pluralistic and historically more accurate vision.
I remember that a thousand years ago, over 85% of all Jews lived among Muslims of Arab and Persian backgrounds. I remember that Jews achieved their “Golden Age” in Andalucia, ruled by Muslims. I remember that it was the Muslims who received the majority of the Jewish exiles from Andalucia. I remember that it was the Muslim Ottomans who provided by the welfare and security of the Jewish community, to the point of voluntarily settling Jewish families in the region, including in Jerusalem. We have lived together in the past, and can live together again.
The problem, therefore, is not that of presence of Jews in the Holy Land, the issue is an unjust interpretation of Zionism that has sought and seeks to rid the land of Palestine and Israel of its Arab inhabitants, and render them second-class citizens in their own ancestral homeland. Only after addressing these issues can there be hope to realize the creation of a community where Jews, Christians, and Muslims can live side by side with one another in full dignity and equality.
Speaking on behalf of all those resonate with the dream of such a new Israel, such a new Palestine, that I say the following: We too dare to dream, we dream of a place, of land, a land of place, where Muslim, Christian, and Jew live side by side, where Jerusalem becomes once again the Holy city, the Sacred City, simultaneously al-Quds and Zion.[3] We too have the audacity to hope and dream that God’s love encompass all of God’s children, Jewish and Muslim, Christian, and others. In that dream, we reject the notion, any notion, that this land belong exclusively to one people, or that others are at best tolerated guests. Rights, if they are meaningful, belong to all, otherwise they are nothing more than privileges guaranteed to a chosen few, which effectively work as frameworks for oppression.
There are some Jews and some Arabs who if given a chance would no doubt wish to purge the land of the other. We see this hateful wish written into the charters of movements like HAMAS, which has responded to the Israeli occupation with its own injustice, by inflicting violence upon Israeli society. And as many Palestinians have mournfully reminded us, the creation of Israel has involved the destruction of their own society not as an abstract dream but as an all too vivid reality. It is vital for us to address these past and present realities, and yet we remain hopeful that by addressing them we can avoid the situation of forever remaining their victim.
We dare to dream of a place where the majority of people want to live together, to co-exist, perhaps initially uncomfortably—but we have no choice today other than learning to live together. And We remain convinced that God creates us in love, that love is natural to our state, and it is in fact hate and mistrust that are un-natural. We are taught to hate one another, and if we have been taught hatred, we can un-teach hatred and replace it with an inclusive love. Our hearts are big enough for all of us.
Martin Luther King taught us that we have a choice: nonviolent coexistence or violent co-annihilation.[4] We have gone down the path of attempting to violently annihilate one another, and it has gotten us nowhere but down this vortex of pain and destruction. It is time to try the higher path of nonviolent coexistence, illuminated by love.
We dream of a day where our children, Jewish children and Arab children, go to school together, live in the same communities, and work the same fields together. That day is possible, and our co-existence is possible, but only if we dare to rise above our own worst fears, and reach out to others who wish to co-exist with us. Martin was right: we are all bound up in an inescapable network of mutuality. Buber was right: we achieve our full humanity when the I is projected into the Thou. Jesus and Muhammad were right: that which we do to the least of humanity we do to one another. May it be that when the 100th anniversary of Israel is celebrated, it is also a celebration of how the dreams of multiple communities became realized, not one at the expense of another. It is to that common humanity that we appeal. May the path to Truth and Reconciliation begin with each of us, today.
[1] Ilan Pappe, The Ethnic Cleansing of Palestine, (Oxford: Oneworld: 2006);
[2] For a spiritual perspective, see Desmond Tutu, No Future Without Forgiveness, (New York: Image, 1999).
[3] There are many who share this dream, including Christians like Elias Chacour, the many Israeli peace organizations, and members of the Jerusalem Peace Makers such as Sheikh Abdul Aziz Bukhari.
[4] Martin Luther King, Jr. and James M. Washington, A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (HarperCollins, 1986, 1991).
Monday, May 12, 2008
IRONIES ABOUND
By William Fisher
In one of the more ironic episodes of the Bush Administration, the Federal Bureau of Investigation last week raided the office and home of the senior official in charge of protecting Federal whistleblowers on suspicion of whistleblower retaliation within his own agency – while he was investigating possible criminal acts within the White House.
Since 2005, Scott Bloch, head of the Office of Special Counsel (OSC), has been under investigation by the Inspector General of the White House Office of Personnel Management (OPM), at the behest of the President’s Office of Management and Budget (OMB).
OPM’s investigation centers on charges that Bloch retaliated against whistleblowers who complained they were transferred out of Washington for political reasons because they disagreed with Bloch’s policies. In the raid, FBI agents sized computers and records.
As OPM’s investigation moved forward, Bloch launched an investigation of the White House by combining several unrelated high-profile allegations, including last year’s firing of eight U.S. Attorneys, thousands of missing emails to and from former White House political advisor Karl Rove, and political briefings of General Services Administration managers, in violation of the Hatch Act.
The missing emails – also demanded by the U.S. Congress – are said to relate to Rove’s alleged involvement in the U.S. attorneys’ dismissals. The Hatch Act forbids putting political pressure on career government employees.
In yet another irony, the FBI raid on Bloch’s office and home came as Congress prepared to mark Washington Whistleblower Week, May 12-16, and on the sixth anniversary of the passage of the No FEAR Act in 2002. The act requires the government to compensate whistleblowers for judgments, awards, and settlements in equal employment opportunity (EEO) and whistleblower cases.
The Administration’s investigation of Bloch comes as a result of a complaint filed by his own staff members and whistleblower groups alleging a host of misconduct charges against Bloch. The complaint charged he discriminated against OSC employees by imposing illegal gag orders, cronyism, and retaliation in forcing employee relocations and the resignations of one-fifth of OSC headquarters legal and investigative staff.
Bloch insists that the ‘forced removals’ were part of a reorganization that sent 12 career OSC employees to new assignments in other cities “to improve performance, not punish any employees.”
One part of that complaint concerns Bloch’s improper interference with the handling of Hatch Act cases, the same statute that Bloch is now invoking as the basis for looking at White House political briefings.
Bloch’s investigation of the White House follows allegations that the Justice Department (DOJ) fired eight U.S. Attorneys for political reasons, that senior officials including Rove violated the Presidential Records Act by using an email account of the Republican National Committee and failing to archive these communications, and that Bush appointees delivered politically-charged briefings to career civil service employees.
Bloch contends that one of the fired U.S. Attorneys, David Iglesias, suffered discriminatory treatment because of his 45-day absence for military service.
Public interest groups including Public Employees for Environmental Responsibility (PEER) and the Project On Government Oversight (POGO) have charged that Bloch has irreconcilable conflicts of interest in his investigations of the White House.
Jeff Ruch, Executive Director PEER told IPS, "Scott Bloch gives opportunism a bad name."
“It makes no sense for Scott Bloch to investigate the White House while the White House investigates Bloch,” Ruch said, noting that Bloch has told allies that the White House has twice asked him to resign. Bloch can only be removed for cause. “
The 600 disclosure cases that Bloch has admitted were dismissed are all instances where civil servants came forward to report waste, fraud and abuse, yet OSC decided that there was no need to investigate," Ruch said.
He added, "Dismissing all 600 cases and deciding that not one deserved investigation -- because, in the words of the OSC spokesperson, they were all ‘minor matters or issues previously investigated’ -- stretches credulity."
“Scott Bloch brings the investigative acumen of an Inspector Clouseau to a very complicated and delicate matter,” he said.
POGO’s Director of Investigations, Beth Daley, said “It is not that Bloch has lacked the opportunities to conduct complex investigations since every virtually whistleblower in town goes to the OSC, but Bloch has ignored them all. It is only when a probe serves his political agenda that he latches onto it as if it were the last helicopter leaving Saigon.”
“What we have here is a mutual investigation society. This is the bureaucratic equivalent of a mouse trying to swallow an elephant. The OSC has no standing to conduct the investigation and Scott Bloch cannot possibly investigate the White House while it is investigating him,” Daly declared.
"Bloch has yet to announce a single case where he has ordered an investigation into the employee's charges", PEER charges. The organization says, "in not one of these cases did Bloch's office affirmatively represent a whistleblower to obtain relief before the civil service court system", called the Merit Systems Protection Board.
And Melanie Sloan, executive director of another public interest organization, Citizens for Responsibility and Ethics in Washington, said of Bloch, “Having transformed OSC into a virtual black hole for legitimate complaints of retaliation, Bloch is decidedly not the right person to tackle the issues of misconduct and illegality that surround top White House officials. There is a serious question as to whether Bloch will just provide cover for an administration that has been covering for him.”
The US Office of Special Counsel is an independent federal investigative and prosecutorial agency. Its basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.
Its mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. It is intended to provide a secure channel for federal workers -- except those in the FBI and intelligence agencies -- to disclose information about various workplace improprieties, including a violation of law, rule or regulation, gross mismanagement and waste of funds, abuse of authority, or a substantial danger to public health or safety.
The OPM Inspector General’s investigation is the third probe into Bloch’s operation. The Government Accountability Office (GAO) and a U.S. Senate subcommittee both conducted investigations into mass dismissal of hundreds of whistleblower cases, and Bloch’s targeting of gay employees for removal while refusing to investigate cases involving discrimination on the basis of sexual orientation.
President Bush nominated Bloch for a five-year term in 2003. He was unanimously confirmed by the U.S. Senate. From 2001-2003, Bloch served as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the Department of Justice.
In one of the more ironic episodes of the Bush Administration, the Federal Bureau of Investigation last week raided the office and home of the senior official in charge of protecting Federal whistleblowers on suspicion of whistleblower retaliation within his own agency – while he was investigating possible criminal acts within the White House.
Since 2005, Scott Bloch, head of the Office of Special Counsel (OSC), has been under investigation by the Inspector General of the White House Office of Personnel Management (OPM), at the behest of the President’s Office of Management and Budget (OMB).
OPM’s investigation centers on charges that Bloch retaliated against whistleblowers who complained they were transferred out of Washington for political reasons because they disagreed with Bloch’s policies. In the raid, FBI agents sized computers and records.
As OPM’s investigation moved forward, Bloch launched an investigation of the White House by combining several unrelated high-profile allegations, including last year’s firing of eight U.S. Attorneys, thousands of missing emails to and from former White House political advisor Karl Rove, and political briefings of General Services Administration managers, in violation of the Hatch Act.
The missing emails – also demanded by the U.S. Congress – are said to relate to Rove’s alleged involvement in the U.S. attorneys’ dismissals. The Hatch Act forbids putting political pressure on career government employees.
In yet another irony, the FBI raid on Bloch’s office and home came as Congress prepared to mark Washington Whistleblower Week, May 12-16, and on the sixth anniversary of the passage of the No FEAR Act in 2002. The act requires the government to compensate whistleblowers for judgments, awards, and settlements in equal employment opportunity (EEO) and whistleblower cases.
The Administration’s investigation of Bloch comes as a result of a complaint filed by his own staff members and whistleblower groups alleging a host of misconduct charges against Bloch. The complaint charged he discriminated against OSC employees by imposing illegal gag orders, cronyism, and retaliation in forcing employee relocations and the resignations of one-fifth of OSC headquarters legal and investigative staff.
Bloch insists that the ‘forced removals’ were part of a reorganization that sent 12 career OSC employees to new assignments in other cities “to improve performance, not punish any employees.”
One part of that complaint concerns Bloch’s improper interference with the handling of Hatch Act cases, the same statute that Bloch is now invoking as the basis for looking at White House political briefings.
Bloch’s investigation of the White House follows allegations that the Justice Department (DOJ) fired eight U.S. Attorneys for political reasons, that senior officials including Rove violated the Presidential Records Act by using an email account of the Republican National Committee and failing to archive these communications, and that Bush appointees delivered politically-charged briefings to career civil service employees.
Bloch contends that one of the fired U.S. Attorneys, David Iglesias, suffered discriminatory treatment because of his 45-day absence for military service.
Public interest groups including Public Employees for Environmental Responsibility (PEER) and the Project On Government Oversight (POGO) have charged that Bloch has irreconcilable conflicts of interest in his investigations of the White House.
Jeff Ruch, Executive Director PEER told IPS, "Scott Bloch gives opportunism a bad name."
“It makes no sense for Scott Bloch to investigate the White House while the White House investigates Bloch,” Ruch said, noting that Bloch has told allies that the White House has twice asked him to resign. Bloch can only be removed for cause. “
The 600 disclosure cases that Bloch has admitted were dismissed are all instances where civil servants came forward to report waste, fraud and abuse, yet OSC decided that there was no need to investigate," Ruch said.
He added, "Dismissing all 600 cases and deciding that not one deserved investigation -- because, in the words of the OSC spokesperson, they were all ‘minor matters or issues previously investigated’ -- stretches credulity."
“Scott Bloch brings the investigative acumen of an Inspector Clouseau to a very complicated and delicate matter,” he said.
POGO’s Director of Investigations, Beth Daley, said “It is not that Bloch has lacked the opportunities to conduct complex investigations since every virtually whistleblower in town goes to the OSC, but Bloch has ignored them all. It is only when a probe serves his political agenda that he latches onto it as if it were the last helicopter leaving Saigon.”
“What we have here is a mutual investigation society. This is the bureaucratic equivalent of a mouse trying to swallow an elephant. The OSC has no standing to conduct the investigation and Scott Bloch cannot possibly investigate the White House while it is investigating him,” Daly declared.
"Bloch has yet to announce a single case where he has ordered an investigation into the employee's charges", PEER charges. The organization says, "in not one of these cases did Bloch's office affirmatively represent a whistleblower to obtain relief before the civil service court system", called the Merit Systems Protection Board.
And Melanie Sloan, executive director of another public interest organization, Citizens for Responsibility and Ethics in Washington, said of Bloch, “Having transformed OSC into a virtual black hole for legitimate complaints of retaliation, Bloch is decidedly not the right person to tackle the issues of misconduct and illegality that surround top White House officials. There is a serious question as to whether Bloch will just provide cover for an administration that has been covering for him.”
The US Office of Special Counsel is an independent federal investigative and prosecutorial agency. Its basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.
Its mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. It is intended to provide a secure channel for federal workers -- except those in the FBI and intelligence agencies -- to disclose information about various workplace improprieties, including a violation of law, rule or regulation, gross mismanagement and waste of funds, abuse of authority, or a substantial danger to public health or safety.
The OPM Inspector General’s investigation is the third probe into Bloch’s operation. The Government Accountability Office (GAO) and a U.S. Senate subcommittee both conducted investigations into mass dismissal of hundreds of whistleblower cases, and Bloch’s targeting of gay employees for removal while refusing to investigate cases involving discrimination on the basis of sexual orientation.
President Bush nominated Bloch for a five-year term in 2003. He was unanimously confirmed by the U.S. Senate. From 2001-2003, Bloch served as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the Department of Justice.
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