By William Fisher
Human rights advocates and religious leaders are calling on President-elect Barack Obama to use his first hundred days in office to close the military prison at Guantanamo Bay and repudiate the policies of President George W. Bush on an array of issues ranging from detainee torture and rendition to warrantless wiretapping and signing statements.
But with the nation facing the deepest economic downturn since the Great Depression of the 1930s, it is unclear whether human rights will become the top priority of the Obama Administration and its allies in Congress.
Nonetheless, such leading organizations as Human Rights Watch, Amnesty International, the Center for Constitutional Rights, and Human Rights First are demanding that the President-elect take the lead in effecting speedy action.
Human Rights Watch (HRW) wants the Obama Administration to close the CIA's secret detention centers permanently, apply to the Central Intelligence Agency (CIA) the rules used by the U.S. military to prevent coercive interrogation, close the Guantanamo detention center, repatriate or prosecute all detainees, and ensure that prosecutions are conducted in regular courts, not the “substandard” military commissions.
Kenneth Roth, executive director of HRW said, “Barack Obama must seize back the US leadership in global human rights squandered by outgoing President George Bush in Guantanamo Bay and other scandals.”
The group issued a 564-page report on the state of human rights around the world. The report charged that governments opposing basic rights, including those in Russia and China, had rushed to fill a vacuum left by the United States.
It blamed Bush's “abandonment of long-held principles, including opposition to torture, in the U.S. war against Islamist militants,” but said Obama “could repair the damage once he takes office on January 20. "There is an enormous need for the Obama administration to redeem America's reputation," Roth added.
At the same time, a coalition of equally prominent groups issued a similar “Human Rights Call to Action” at a summit in Washington last week. It demanded that the Obama Administration put an end to “torture, arbitrary detention, and extraordinary rendition, including closing the prison at Guantanamo Bay and rejecting preventive detention models; ending surveillance abuses, attacks on dissent, and targeting of immigrant groups and other communities of color; and ensuring human rights, civil rights and civil liberties.”
The summit included the American Arab Anti Discrimination Committee, the American Civil Liberties Union, Amnesty International USA, the Center for Constitutional Rights, the Constitution Project, Human Rights First, Human Rights Watch, the National Lawyers Guild, the Partnership for Civil Justice, the Torture Abolition Survivors Support Coalition, the US Human Rights Network, and Witness Against Torture
Similar demands are being made by a number of religious leaders and organizations.
National Religious Campaign Against Torture (NRCAT) is urging Obama to issue an executive order ending torture one of his first official acts in office. A letter to the President-elect, signed by close to three dozen prominent religious leaders representing America’s diverse faith traditions, said, “Such a step will help the United States to regain the moral high ground and restore our credibility within the international community at this critical time.”
The organization also joined a number of other groups in calling for “an investigation of torture policies and practices since 9/11.” Rev. Richard L. Killmer, NRCAT Executive Director, told IPS, “In order to create safeguards to make sure that torture does not happen again, it is important to understand what happened. NRCAT supports an independent non-partisan committee of inquiry with subpoena power and sufficient funding to do a thorough investigation and issue a comprehensive report.”
He added, “I think about my seven grandchildren. I can imagine that some day they will say that the United States used to torture, but we don’t do that anymore. The challenge for our nation is to develop sufficient safeguards so that we don’t torture anymore. We need to understand what happen so that those safeguards can be created.”
Another group of prominent religious leaders presented the Obama Administration with what it called a "Come Let Us Reason Together" Agenda. As part of a multi-issue declaration, the group asserted that “The use of torture and cruel, inhuman, or degrading treatment against prisoners is immoral, unwise, and un-American.”
Leaders of the group represent such organizations as Third Way, Public Religion Research, Evangelicals for Human Rights, Evangelicals for Social Action, the National Hispanic Christian Leadership Conference, and Faith in Public Life.
As these organizations went public with their demands, pressure appeared to be growing for a comprehensive independent investigation of human rights abuses allegedly committed by the Bush Administration. But when ABC News's George Stephanopoulos pressed Obama about it on the television program, "This Week," Obama said he was "still evaluating" the situation but added, "My orientation is going to be moving forward."
However, on Obama's transition website, Change.gov, the top-rated publicly-submitted question asked the incoming president whether he would appoint a special prosecutor to investigate "the gravest crimes of the Bush Administration, including torture and warrantless wiretapping."
Other powerful players are taking the view that questions about the Bush administration's torture policies are so serious they can be answered only by a bipartisan, in-depth investigation. Among them is Rep. John Conyers, a Michigan Democrat and chairman of the House Judiciary Committee, who introduced a bill to establish a blue-ribbon commission to investigate Bush's alleged abuse of executive war powers and civil liberties. The commission would be similar to the panel that investigated the terrorist attacks of September 11th, 2001.
The pressure on the Obama team escalated last week when a senior Bush Administration official admitted that Guantanamo interrogators and guards had tortured one of the detainees, Mohammed al Qahtani, a Saudi national accused of planning to take part in the September 11, 2001, attacks
The official, Susan Crawford, a retired judge who oversees the military tribunals for Guantanamo Bay inmates, told The Washington Post, "We tortured Qahtani. His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.
According to press reports, Qahtani had proved impervious to standard military interrogation in 2002 when former Defense Secretary Donald Rumsfeld authorized special methods to break his will.
The American Civil Liberties Union (ACLU) described the admission as "stunning" but said the Bush administration was still planning, on its final full day in office, to prosecute other detainees who had been tortured.
Bush and Vice President Dick Cheney have said that the United States does not torture. But Cheney has admitted publicly that a technique known as waterboarding – which simulates drowning – was administered to three detainees.
Bush Administration officials, including the president, vice president, and Attorney General Michael Mukasey do not acknowledge that waterboarding constitutes torture. But Obama’s nominee for Attorney General, Eric Holder, testifying before the Senate Judiciary Committee last week, unequivocally declared, “waterboarding is torture.”
The significance of the phrase “The First Hundred Days” stems from the administration of Franklin Delano Roosevelt, who took office during the Great Depression. In 1933, he called Congress back from a recess to hold a special emergency session, during which more than 15 bills – the heart of FDR’s New Deal -- were passed and signed into law. The hundred day mantra has been the gold standard for American presidents ever since.
Saturday, January 17, 2009
Tuesday, January 13, 2009
THE BEGINNING OF THE END? OR VICE VERSA?
By William Fisher
Human rights groups are hailing reports that President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba. But they are urging him to provide details on when and how it will be done and what will happen to those now imprisoned there.
In a teleconference today with reporters, Caroline Frederickson, the chief legislative representative of the American Civil Liberties Union (ACLU) said closing GITMO would mean little if detainees were simply moved to some other location. She also said she needed reassurance that the Obama Administration would not propose a system of “preventive detention.”
“It is not enough to simply close Guantanamo or even to suspend the Military Commission trials currently taking place there,” she said. She called on Congress to repeal the Military Commissions Act of 2006, which gave the president authority to detain people, including U.S. citizens, indefinitely without charges or trials.
Deborah Colson of the Law and Security Program of the legal advocacy group Human Rights First (HRF) told us that closing Guantanamo will “show the world we are serious about our values.” But, she added, it “will require embracing time-tested procedures for criminal prosecution of suspected terrorists in our federal courts.”
Closing Guantanamo is unlikely to be completed quickly. One official of the Obama transition team reportedly said it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp. However, transition officials have said president-elect Obama is committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.
In addition, the incoming administration has reportedly rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration had insisted that such a measure was necessary to close the Guantánamo camp and bring some of the detainees to the U.S.
Meanwhile, the fate of a number of GITMO detainees continues to play out in the courts. Today the ACLU filed a petition for habeas corpus in federal court in Washington, challenging the detention of Mohammed Jawad, who has been held at Guantanamo for more than six years. Jawad, now about 23 years old, was captured at the age of 16 or 17 and is one of two Guantánamo prisoners the U.S. is prosecuting for acts allegedly committed when they were juveniles. He is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan.“It would be a miscarriage of justice for President-elect Obama to continue Mr. Jawad’s unlawful detention in Guantánamo, particularly considering that Mr. Jawad was captured as a teenager and detained based on alleged confessions obtained through torture,” said Hina Shamsi, an ACLU attorney.
“The Bush administration compounded this injustice by using torture-derived evidence to prosecute Mr. Jawad for war crimes in the unconstitutional military commissions. The government’s continued detention and prosecution of Mr. Jawad violates America’s values and the Constitution, as well as this country’s binding obligations under the Geneva Conventions and human rights law,” she said.In September, the military’s prosecutor resigned from the military commissions because he did not believe he could ethically proceed with the case. He told the court there was “no credible evidence or legal basis” to justify Jawad’s detention and prosecution, and that the commission system’s flaws make it impossible for anyone “to harbor the remotest hope that justice is an achievable goal.”
A month later, Army judge Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody could not be admitted in his trial because it had been obtained under duress. Among various forms of abusive treatment, Jawad was a victim of the military’s so-called “frequent flyer” program, in which detainees at Guantánamo were subjected to sleep deprivation for extended periods of time.
In May 2004, a few months after Jawad tried to commit suicide in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – after having been ordered by their commanding general to discontinue this practice.
The government told the judge that Jawad's alleged confessions were the centerpiece of its case against him. “The fact that the government persists in trying to use evidence obtained through torture says everything you need to know about the integrity of its case,” said U.S. Air Force Major David J. R. Frakt, who represents Jawad. The Bush administration is appealing the Guantánamo military judge’s decision to throw out the “tainted” evidence.
In a separate case, the trial of another “child soldier,” Canadian citizen Omar Ahmed Khadr, is scheduled to begin January 26. Khadr was captured by American forces when he was 15, following a four-hour firefight with militants in a village in Afghanistan. He has spent six years in Guantanamo charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.
But in February of 2008, the Pentagon accidentally released documents that revealed that while Khadr was present during the firefight, there was no evidence that he had thrown the grenade. In fact, military officials had originally reported that another militant had thrown the grenade just before being killed.
HRF’s Deborah Colson told us that Obama’s plan to close GITMO will be further complicated if he “does not make an immediate decision to suspend all military commission proceedings, including the trial of Omar Khadr.”
Among the many complications surrounding the closing of Guantanamo is the question of what to do with detainees the U.S. Government has cleared for release.
In December 2008, the government attempted to halt the cases of approximately 20 detainees the Defense Department had cleared for transfer out of Guantanamo. A few weeks later, a federal court rejected the government’s action. The ruling, from Judge Thomas Hogan of the United States District Court for the District of Columbia, meant that lawyers for the detainees could go forward with attempting to seek their release from detention.
As recognized by the Supreme Court and by District Court Judge Ricardo Urbina in the case involving 17 Chinese Muslims – known as Uighurs -- remaining at Guantánamo, a core facet of the fundamental right of habeas is the ability of a federal court to order release in cases of unlawful detention. Judge Urbina ruled the Uighurs should be released from Guantanamo and admitted into the U.S. The government is appealing that decision.
“An administrative order that says that they are free to go is not relief after seven years of imprisonment,” says Emi MacLean, an attorney with the Center for Constitutional Rights. “These men need to be released from prison, and this relief is long overdue,” she says.
There are approximately 50-60 detainees at Guantánamo who cannot be sent to their home countries for fear of torture or persecution or because of statelessness. These include the 17 Uighurs from China as well as men from Azerbaijan, Algeria, Libya, Palestine, Russia, Syria, Tajikistan, Tunisia, and Uzbekistan.
Human rights groups are hailing reports that President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba. But they are urging him to provide details on when and how it will be done and what will happen to those now imprisoned there.
In a teleconference today with reporters, Caroline Frederickson, the chief legislative representative of the American Civil Liberties Union (ACLU) said closing GITMO would mean little if detainees were simply moved to some other location. She also said she needed reassurance that the Obama Administration would not propose a system of “preventive detention.”
“It is not enough to simply close Guantanamo or even to suspend the Military Commission trials currently taking place there,” she said. She called on Congress to repeal the Military Commissions Act of 2006, which gave the president authority to detain people, including U.S. citizens, indefinitely without charges or trials.
Deborah Colson of the Law and Security Program of the legal advocacy group Human Rights First (HRF) told us that closing Guantanamo will “show the world we are serious about our values.” But, she added, it “will require embracing time-tested procedures for criminal prosecution of suspected terrorists in our federal courts.”
Closing Guantanamo is unlikely to be completed quickly. One official of the Obama transition team reportedly said it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp. However, transition officials have said president-elect Obama is committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.
In addition, the incoming administration has reportedly rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration had insisted that such a measure was necessary to close the Guantánamo camp and bring some of the detainees to the U.S.
Meanwhile, the fate of a number of GITMO detainees continues to play out in the courts. Today the ACLU filed a petition for habeas corpus in federal court in Washington, challenging the detention of Mohammed Jawad, who has been held at Guantanamo for more than six years. Jawad, now about 23 years old, was captured at the age of 16 or 17 and is one of two Guantánamo prisoners the U.S. is prosecuting for acts allegedly committed when they were juveniles. He is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan.“It would be a miscarriage of justice for President-elect Obama to continue Mr. Jawad’s unlawful detention in Guantánamo, particularly considering that Mr. Jawad was captured as a teenager and detained based on alleged confessions obtained through torture,” said Hina Shamsi, an ACLU attorney.
“The Bush administration compounded this injustice by using torture-derived evidence to prosecute Mr. Jawad for war crimes in the unconstitutional military commissions. The government’s continued detention and prosecution of Mr. Jawad violates America’s values and the Constitution, as well as this country’s binding obligations under the Geneva Conventions and human rights law,” she said.In September, the military’s prosecutor resigned from the military commissions because he did not believe he could ethically proceed with the case. He told the court there was “no credible evidence or legal basis” to justify Jawad’s detention and prosecution, and that the commission system’s flaws make it impossible for anyone “to harbor the remotest hope that justice is an achievable goal.”
A month later, Army judge Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody could not be admitted in his trial because it had been obtained under duress. Among various forms of abusive treatment, Jawad was a victim of the military’s so-called “frequent flyer” program, in which detainees at Guantánamo were subjected to sleep deprivation for extended periods of time.
In May 2004, a few months after Jawad tried to commit suicide in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – after having been ordered by their commanding general to discontinue this practice.
The government told the judge that Jawad's alleged confessions were the centerpiece of its case against him. “The fact that the government persists in trying to use evidence obtained through torture says everything you need to know about the integrity of its case,” said U.S. Air Force Major David J. R. Frakt, who represents Jawad. The Bush administration is appealing the Guantánamo military judge’s decision to throw out the “tainted” evidence.
In a separate case, the trial of another “child soldier,” Canadian citizen Omar Ahmed Khadr, is scheduled to begin January 26. Khadr was captured by American forces when he was 15, following a four-hour firefight with militants in a village in Afghanistan. He has spent six years in Guantanamo charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.
But in February of 2008, the Pentagon accidentally released documents that revealed that while Khadr was present during the firefight, there was no evidence that he had thrown the grenade. In fact, military officials had originally reported that another militant had thrown the grenade just before being killed.
HRF’s Deborah Colson told us that Obama’s plan to close GITMO will be further complicated if he “does not make an immediate decision to suspend all military commission proceedings, including the trial of Omar Khadr.”
Among the many complications surrounding the closing of Guantanamo is the question of what to do with detainees the U.S. Government has cleared for release.
In December 2008, the government attempted to halt the cases of approximately 20 detainees the Defense Department had cleared for transfer out of Guantanamo. A few weeks later, a federal court rejected the government’s action. The ruling, from Judge Thomas Hogan of the United States District Court for the District of Columbia, meant that lawyers for the detainees could go forward with attempting to seek their release from detention.
As recognized by the Supreme Court and by District Court Judge Ricardo Urbina in the case involving 17 Chinese Muslims – known as Uighurs -- remaining at Guantánamo, a core facet of the fundamental right of habeas is the ability of a federal court to order release in cases of unlawful detention. Judge Urbina ruled the Uighurs should be released from Guantanamo and admitted into the U.S. The government is appealing that decision.
“An administrative order that says that they are free to go is not relief after seven years of imprisonment,” says Emi MacLean, an attorney with the Center for Constitutional Rights. “These men need to be released from prison, and this relief is long overdue,” she says.
There are approximately 50-60 detainees at Guantánamo who cannot be sent to their home countries for fear of torture or persecution or because of statelessness. These include the 17 Uighurs from China as well as men from Azerbaijan, Algeria, Libya, Palestine, Russia, Syria, Tajikistan, Tunisia, and Uzbekistan.
Monday, January 12, 2009
THE OTHER GITMO
By William Fisher
While millions know that the administration of George W. Bush has left Barack Obama with the job of closing the U.S. prison at Guantanamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.
That dilemma is what to do with the what has become known as “the other GITMO” – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.
The “other GITMO” was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantanamo.
In 2005, following well-documented accounts of detainee deaths, torture and “disappeared” prisoners, the U.S. undertook efforts to turn the facility over to the Afghan government. But due to a series of legal, bureaucratic and administrative missteps, the prison is still under American military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.
The ICRC report is said to cite massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado” in “a previously undisclosed warren of isolation cells” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions”. Some prisoners have been held without charges or lawyers for more than five years. The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors.
According to Hina Shamsi of the American Civil Liberties Union (ACLU), “Bagram appears to be just as bad as, if not worse than, Guantanamo. When a prisoner is in American custody and under American control, our values are at stake and our commitment to the rule of law is tested”.
She told us, “The abuses cited by the Red Cross give us cause for concern that we may be failing the test. The Bush administration is not content to limit its regime of illegal detention to Guantanamo, and has tried to foist it on Afghanistan.”
She added: “Both Congress and the executive branch need to investigate what’s happening at Bagram if we are to avoid a tragic repetition of history.”
But most observers believe the solution is more likely to come in the courts and to be inextricably linked to recent judicial decisions affecting prisoners at Guantanamo.
Last June, the U.S. Supreme Court ruled that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo have a constitutional right to challenge their captivity in U.S. courts in Washington. Last week, a federal judge began exploring whether this landmark decision also applies to Bagram.
Like Guantanamo, Bagram was set up as a facility where battlefield captives could be held for the duration of the “war on terrorism” under full military control in an overseas site beyond the reach of U.S. courts.
The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo from the courts’ review. But the Justice argument is that none of those rulings has any application to Bagram, and that the federal judge should dismiss the legal challenges by Bagram detainees by finding that U.S. courts have no jurisdiction over them.
But lawyers for four Bagram prisoners who have been held in detention since at least 2003 contend that recent Supreme Court Guantanamo decisions also apply to Afghanistan. They are also arguing that another Supreme Court decision -- Munaf v. Geren -- extended habeas rights to a U.S. military facility in Baghdad.
Barbara Olshansky of the Stanford Law School represents three of the four men who brought the court action. She said "there is no more complete analogy or mirror to Guantanamo than this (case)."
While U.S. District Judge John D. Bates has not ruled on the government’s motion to dismiss the four Bagram cases, he said during the court hearing, “These individuals are no different than those detained at Guantanamo except where they're housed."
In its motion to dismiss the cases, the Justice Department argued that Bagram is so much a part of ongoing military operations that there simply is no role for U.S. courts to play. “To provide alien enemy combatants detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically,” the government’s brief claimed.
The government claims the U.S. does not have nearly the control over the Bagram Airfield as it does over Guantanamo Bay, and thus the reasoning of the Supreme Court in extending habeas rights to Guantanamo should not apply to Bagram.
It also noted that Bagram is in the midst of a war zone; Guantanamo is not. It asserted that civilian court review of Bagram detentions would actually compromise the military mission in Afghanistan.
The Munaf decision also has no application to Bagram, the government’s motion contended, because that involved U.S. citizens, not foreign nationals.
Lawyers for the Bagram detainees noted that some of them have been held for more than six years, so any argument the Justice Department might have made against habeas rights abroad has now lost its force “after so much time has passed.”
They say the issue “is whether the Executive can create a modern-day Star Chamber, where it can label an individual an ‘enemy combatant’ or ‘unlawful enemy combatant,’ deny him any meaningful ability to challenge that label, and on that basis, detain him indefinitely, virtually incommunicado, subject to interrogation and torture, without any right of redress.”
The lawyers note that the Supreme Court has rejected such efforts at Guantanamo on three occasions. But it added that the government is now seeking “to revive their effort to create a prison beyond judicial scrutiny by arguing that habeas does not extend to Bagram because they have deliberately located their Star Chamber in an airfield they contend is outside their ‘realm,’ for the express purpose of avoiding compliance with domestic civil, criminal, military, and international law.”
Bagram, their brief contended, “is not a temporary holding camp, intended to house enemy soldiers apprehended on the battlefield, for the duration of a declared war, finite in time and space.” It said the “war on terror” as conceived by the government is “unlimited in duration and global in scope.”
It also noted that, unlike Guantanamo, Bagram is a permanent prison. Thousands of individuals from all over the world have been taken to the airfield prison, and nearly 700 remain there now, and it is being expanded with a new prison to hold more than 11,000. Moreover, they argued, Bagram detainees do not even have the minimal procedural guarantees to have their captivity reviewed that Guantanamo prisoners have in the so-called “Combatant Status Review Tribunals.” The military does not operate CSRTs at Bagram.
Lawyers for the four men -- two Yemeni, one Tunisian and one Afghan -- said none was captured while in battle or otherwise directly aiding terrorist groups.
The Justice Department argued that releasing alleged enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.
"What evidence is there to believe they would return to the battlefield?" Judge Bates asked Deputy Assistant Attorney General John O'Quinn. "They were not on the battlefield to begin with."
While there is no timetable for a court ruling, it is clear that it will not come during the waning days of the George W. Bush Administration. Like the issue of how to close Guantanamo, the Bagram issue will be left to the new presidency of Barack Obama to solve.
While millions know that the administration of George W. Bush has left Barack Obama with the job of closing the U.S. prison at Guantanamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.
That dilemma is what to do with the what has become known as “the other GITMO” – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.
The “other GITMO” was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantanamo.
In 2005, following well-documented accounts of detainee deaths, torture and “disappeared” prisoners, the U.S. undertook efforts to turn the facility over to the Afghan government. But due to a series of legal, bureaucratic and administrative missteps, the prison is still under American military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.
The ICRC report is said to cite massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado” in “a previously undisclosed warren of isolation cells” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions”. Some prisoners have been held without charges or lawyers for more than five years. The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors.
According to Hina Shamsi of the American Civil Liberties Union (ACLU), “Bagram appears to be just as bad as, if not worse than, Guantanamo. When a prisoner is in American custody and under American control, our values are at stake and our commitment to the rule of law is tested”.
She told us, “The abuses cited by the Red Cross give us cause for concern that we may be failing the test. The Bush administration is not content to limit its regime of illegal detention to Guantanamo, and has tried to foist it on Afghanistan.”
She added: “Both Congress and the executive branch need to investigate what’s happening at Bagram if we are to avoid a tragic repetition of history.”
But most observers believe the solution is more likely to come in the courts and to be inextricably linked to recent judicial decisions affecting prisoners at Guantanamo.
Last June, the U.S. Supreme Court ruled that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo have a constitutional right to challenge their captivity in U.S. courts in Washington. Last week, a federal judge began exploring whether this landmark decision also applies to Bagram.
Like Guantanamo, Bagram was set up as a facility where battlefield captives could be held for the duration of the “war on terrorism” under full military control in an overseas site beyond the reach of U.S. courts.
The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo from the courts’ review. But the Justice argument is that none of those rulings has any application to Bagram, and that the federal judge should dismiss the legal challenges by Bagram detainees by finding that U.S. courts have no jurisdiction over them.
But lawyers for four Bagram prisoners who have been held in detention since at least 2003 contend that recent Supreme Court Guantanamo decisions also apply to Afghanistan. They are also arguing that another Supreme Court decision -- Munaf v. Geren -- extended habeas rights to a U.S. military facility in Baghdad.
Barbara Olshansky of the Stanford Law School represents three of the four men who brought the court action. She said "there is no more complete analogy or mirror to Guantanamo than this (case)."
While U.S. District Judge John D. Bates has not ruled on the government’s motion to dismiss the four Bagram cases, he said during the court hearing, “These individuals are no different than those detained at Guantanamo except where they're housed."
In its motion to dismiss the cases, the Justice Department argued that Bagram is so much a part of ongoing military operations that there simply is no role for U.S. courts to play. “To provide alien enemy combatants detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically,” the government’s brief claimed.
The government claims the U.S. does not have nearly the control over the Bagram Airfield as it does over Guantanamo Bay, and thus the reasoning of the Supreme Court in extending habeas rights to Guantanamo should not apply to Bagram.
It also noted that Bagram is in the midst of a war zone; Guantanamo is not. It asserted that civilian court review of Bagram detentions would actually compromise the military mission in Afghanistan.
The Munaf decision also has no application to Bagram, the government’s motion contended, because that involved U.S. citizens, not foreign nationals.
Lawyers for the Bagram detainees noted that some of them have been held for more than six years, so any argument the Justice Department might have made against habeas rights abroad has now lost its force “after so much time has passed.”
They say the issue “is whether the Executive can create a modern-day Star Chamber, where it can label an individual an ‘enemy combatant’ or ‘unlawful enemy combatant,’ deny him any meaningful ability to challenge that label, and on that basis, detain him indefinitely, virtually incommunicado, subject to interrogation and torture, without any right of redress.”
The lawyers note that the Supreme Court has rejected such efforts at Guantanamo on three occasions. But it added that the government is now seeking “to revive their effort to create a prison beyond judicial scrutiny by arguing that habeas does not extend to Bagram because they have deliberately located their Star Chamber in an airfield they contend is outside their ‘realm,’ for the express purpose of avoiding compliance with domestic civil, criminal, military, and international law.”
Bagram, their brief contended, “is not a temporary holding camp, intended to house enemy soldiers apprehended on the battlefield, for the duration of a declared war, finite in time and space.” It said the “war on terror” as conceived by the government is “unlimited in duration and global in scope.”
It also noted that, unlike Guantanamo, Bagram is a permanent prison. Thousands of individuals from all over the world have been taken to the airfield prison, and nearly 700 remain there now, and it is being expanded with a new prison to hold more than 11,000. Moreover, they argued, Bagram detainees do not even have the minimal procedural guarantees to have their captivity reviewed that Guantanamo prisoners have in the so-called “Combatant Status Review Tribunals.” The military does not operate CSRTs at Bagram.
Lawyers for the four men -- two Yemeni, one Tunisian and one Afghan -- said none was captured while in battle or otherwise directly aiding terrorist groups.
The Justice Department argued that releasing alleged enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.
"What evidence is there to believe they would return to the battlefield?" Judge Bates asked Deputy Assistant Attorney General John O'Quinn. "They were not on the battlefield to begin with."
While there is no timetable for a court ruling, it is clear that it will not come during the waning days of the George W. Bush Administration. Like the issue of how to close Guantanamo, the Bagram issue will be left to the new presidency of Barack Obama to solve.
Monday, January 05, 2009
The Politics of Fear
By William Fisher
As Barack Obama’s inauguration approaches, I suppose it was inevitable that inhabitants of the parallel universe that is the right-wing blogosphere would begin circulating dark reports that our new president will take his oath of office by placing his hand on a Koran.
Well, these wingnuts are entitled to their own opinions, but not to their own facts. Here’s the main fact, no doubt inconvenient: Obama will place his hand on the same Bible used by Abraham Lincoln, that other radical Muslim.
The one from Illinois.
And, while we’re on the subject of radical Muslims, it’s worth noting that the past few weeks have given us yet more evidence that our post-9/11 Islamophobia is still alive and well.
Should you have any doubt, just ask the members of the Irfan family. The Irfans are American-born Muslims of Indian descent. Last week, eight members of the family, plus a friend, were sitting on the tarmac at Washington’s Ronald Reagan airport in an AirTran plane and attempting to fly to Orlando, Fla. The men in the party wore beards; the women wore headscarves.
Two members of this family reportedly had a conversation about the safest place to sit in the event of an accident. Whereupon other passengers reported these “suspicious” remarks to a flight attendant, who passed them on to the pilot, who notified a couple of air marshals on the plane, who then called the FBI and the Transportation Security Administration.
All 104 passengers were ordered off the plane. The FBI questioned the “suspicious” family and cleared them of any wrongdoing.
Most of the passengers were then allowed to reboard the plane -- but the nine American Muslims weren’t. Nor were they allowed to buy tickets on any other AirTran flights. They had to buy tickets on U.S. Airways.
Initially, AirTran said it was not at fault. Later it said the incident was a “misunderstanding” and issued an apology.
“We regret that the issue escalated to the heightened security level it did,” the airline said, “but we trust everyone understands that the security and the safety of our passengers is paramount and cannot be compromised,” AirTran said.
Well, actually, no, many of us don’t understand. We don’t understand the relationship between passenger security and safety and the conversation these two passengers had. What we do understand is that if these passengers had been white and clean-shaven, and the women’s hair uncovered, this incident would never have happened.
But wouldn’t that be racial profiling? Sure sounds like it. Yet the FBI, the DHS, the TSA, and every other government agency you can name, will vehemently deny it practices racial profiling.
Atif Irfan, one of the passengers who is a lawyer from Alexandria, Virginia, has a more realistic view. “Whenever we get on a plane, because of the color of our skin, people tend to look at us with a wary eye anyway.”
Kashif Irfan, 34, Atif’s older brother and another of the detained passengers, is a medical doctor. Perhaps a tad too magnanimously, he said, “We are very grateful for the apology, and we’re impressed by the outpouring of respect that AirTran has demonstrated after the fact.”
He added, however, that the Irfan family has “not ruled out the possibility of legal action.”
Others aren’t waiting for the Irfans, however. The Council on American-Islamic Relations (CAIR), an advocacy group, has already filed a complaint with the Transportation Department requesting an investigation.
The trouble with waiting for a TSA to finish an investigation and disclose the results is like trying to get your name off one of the government’s famous “no fly” lists. Conjures up images of Sisyphus.
Now, if you haven’t run out of patience yet, here’s another exciting chapter in the never-ending annals of “activist judges.”
This one takes place in Douglasville, Georgia (population about 20,000), considered a suburb of Atlanta. In the municipal courtroom of Judge Keith Rollins, a Douglasville woman was jailed recently for refusing to remove her hijab, the traditional Muslim head covering, in court.
Judge Rollins had Lisa Valentine, 40, arrested, and ordered her to serve ten days in jail for contempt of court. Police said that Valentine violated a court policy that prohibits people from wearing any headgear in court.
Ms. Valentine, who recently moved to Georgia from New Haven, Connecticut, said the incident reminded her of stories she'd heard of the civil rights-era South.
She said, "I just felt stripped of my civil, my human rights."
And she’s not alone. The same judge recently removed another woman and her 14-year-old daughter from the courtroom because they were wearing Muslim headscarves. And last year, a judge in Valdosta in southern Georgia barred a Muslim woman from entering a courtroom because she would not remove her headscarf. There have been similar cases in other states, including Michigan, where a Muslim woman in Detroit filed a federal lawsuit after a judge dismissed her small-claims court case when she refused to remove a head and face veil.
The hijab is worn by millions of Muslim women in accordance with their belief in Islam. There are many types of hijabs; in America, a majority of Muslim women who choose to cover only their hair, leaving the face visible for identification, as was the case with Ms. Valentine.
I wonder if the good Judge Rollins has somehow not noticed that followers of other religions regularly use headwear, apparently with impunity. Would he order a nun to remove her religious habit? Would he order a Jew to remove his yarmulke? Would he order a Sikh to remove his turban?
Maybe I’m missing something here.
Maybe, but what I’m not missing is the U.S. Constitution. I don’t know where Judge Rollins went to law school, but he somehow seems to have missed Lyndon Johnson’s Civil Rights Act of 1964. That law says no one can be deprived of the equal protection of the laws on account of race, color, religion or national origin by being denied equal use of any public facility. Well, a courtroom certainly qualifies as a public facility. Our tax dollars built it.
Then there’s the U.S. Supreme Court, which has ruled that a state can only interfere with the free exercise of a citizen’s religious observance if there’s a compelling state interest.
Denial of access to a courtroom based on a religious observance seems to me an open-and-shut case of discrimination. And where is the “compelling state interest” here?
Well, this story may actually have a happier ending, sort of.
First, after a Muslim advocacy group threatened to take the case to court, Ms. Valentine was released from jail (though the cops would not explain why).
Then, the Douglasville Police Department announced that its officers – along with Judge Rollins -- would undergo a course of "sensitivity and cultural diversity training. "
Not a minute too soon! Let’s hope they’re fast learners!
But next time you hear your right-wing friends railing against those “activist judges who legislate from the bench,” how about reminding them of Mr. Justice Keith Rollins?
As Barack Obama’s inauguration approaches, I suppose it was inevitable that inhabitants of the parallel universe that is the right-wing blogosphere would begin circulating dark reports that our new president will take his oath of office by placing his hand on a Koran.
Well, these wingnuts are entitled to their own opinions, but not to their own facts. Here’s the main fact, no doubt inconvenient: Obama will place his hand on the same Bible used by Abraham Lincoln, that other radical Muslim.
The one from Illinois.
And, while we’re on the subject of radical Muslims, it’s worth noting that the past few weeks have given us yet more evidence that our post-9/11 Islamophobia is still alive and well.
Should you have any doubt, just ask the members of the Irfan family. The Irfans are American-born Muslims of Indian descent. Last week, eight members of the family, plus a friend, were sitting on the tarmac at Washington’s Ronald Reagan airport in an AirTran plane and attempting to fly to Orlando, Fla. The men in the party wore beards; the women wore headscarves.
Two members of this family reportedly had a conversation about the safest place to sit in the event of an accident. Whereupon other passengers reported these “suspicious” remarks to a flight attendant, who passed them on to the pilot, who notified a couple of air marshals on the plane, who then called the FBI and the Transportation Security Administration.
All 104 passengers were ordered off the plane. The FBI questioned the “suspicious” family and cleared them of any wrongdoing.
Most of the passengers were then allowed to reboard the plane -- but the nine American Muslims weren’t. Nor were they allowed to buy tickets on any other AirTran flights. They had to buy tickets on U.S. Airways.
Initially, AirTran said it was not at fault. Later it said the incident was a “misunderstanding” and issued an apology.
“We regret that the issue escalated to the heightened security level it did,” the airline said, “but we trust everyone understands that the security and the safety of our passengers is paramount and cannot be compromised,” AirTran said.
Well, actually, no, many of us don’t understand. We don’t understand the relationship between passenger security and safety and the conversation these two passengers had. What we do understand is that if these passengers had been white and clean-shaven, and the women’s hair uncovered, this incident would never have happened.
But wouldn’t that be racial profiling? Sure sounds like it. Yet the FBI, the DHS, the TSA, and every other government agency you can name, will vehemently deny it practices racial profiling.
Atif Irfan, one of the passengers who is a lawyer from Alexandria, Virginia, has a more realistic view. “Whenever we get on a plane, because of the color of our skin, people tend to look at us with a wary eye anyway.”
Kashif Irfan, 34, Atif’s older brother and another of the detained passengers, is a medical doctor. Perhaps a tad too magnanimously, he said, “We are very grateful for the apology, and we’re impressed by the outpouring of respect that AirTran has demonstrated after the fact.”
He added, however, that the Irfan family has “not ruled out the possibility of legal action.”
Others aren’t waiting for the Irfans, however. The Council on American-Islamic Relations (CAIR), an advocacy group, has already filed a complaint with the Transportation Department requesting an investigation.
The trouble with waiting for a TSA to finish an investigation and disclose the results is like trying to get your name off one of the government’s famous “no fly” lists. Conjures up images of Sisyphus.
Now, if you haven’t run out of patience yet, here’s another exciting chapter in the never-ending annals of “activist judges.”
This one takes place in Douglasville, Georgia (population about 20,000), considered a suburb of Atlanta. In the municipal courtroom of Judge Keith Rollins, a Douglasville woman was jailed recently for refusing to remove her hijab, the traditional Muslim head covering, in court.
Judge Rollins had Lisa Valentine, 40, arrested, and ordered her to serve ten days in jail for contempt of court. Police said that Valentine violated a court policy that prohibits people from wearing any headgear in court.
Ms. Valentine, who recently moved to Georgia from New Haven, Connecticut, said the incident reminded her of stories she'd heard of the civil rights-era South.
She said, "I just felt stripped of my civil, my human rights."
And she’s not alone. The same judge recently removed another woman and her 14-year-old daughter from the courtroom because they were wearing Muslim headscarves. And last year, a judge in Valdosta in southern Georgia barred a Muslim woman from entering a courtroom because she would not remove her headscarf. There have been similar cases in other states, including Michigan, where a Muslim woman in Detroit filed a federal lawsuit after a judge dismissed her small-claims court case when she refused to remove a head and face veil.
The hijab is worn by millions of Muslim women in accordance with their belief in Islam. There are many types of hijabs; in America, a majority of Muslim women who choose to cover only their hair, leaving the face visible for identification, as was the case with Ms. Valentine.
I wonder if the good Judge Rollins has somehow not noticed that followers of other religions regularly use headwear, apparently with impunity. Would he order a nun to remove her religious habit? Would he order a Jew to remove his yarmulke? Would he order a Sikh to remove his turban?
Maybe I’m missing something here.
Maybe, but what I’m not missing is the U.S. Constitution. I don’t know where Judge Rollins went to law school, but he somehow seems to have missed Lyndon Johnson’s Civil Rights Act of 1964. That law says no one can be deprived of the equal protection of the laws on account of race, color, religion or national origin by being denied equal use of any public facility. Well, a courtroom certainly qualifies as a public facility. Our tax dollars built it.
Then there’s the U.S. Supreme Court, which has ruled that a state can only interfere with the free exercise of a citizen’s religious observance if there’s a compelling state interest.
Denial of access to a courtroom based on a religious observance seems to me an open-and-shut case of discrimination. And where is the “compelling state interest” here?
Well, this story may actually have a happier ending, sort of.
First, after a Muslim advocacy group threatened to take the case to court, Ms. Valentine was released from jail (though the cops would not explain why).
Then, the Douglasville Police Department announced that its officers – along with Judge Rollins -- would undergo a course of "sensitivity and cultural diversity training. "
Not a minute too soon! Let’s hope they’re fast learners!
But next time you hear your right-wing friends railing against those “activist judges who legislate from the bench,” how about reminding them of Mr. Justice Keith Rollins?
Friday, January 02, 2009
Rummie’s Gift to Obama
By William Fisher
Should we be surprised that Australia – once our staunchest ally in the “global war on terror” – has for the second time refused a request from the lame-duck Bush Administration to accept any of the Guantanamo Bay prisoners the U.S. Government has been trying to release?
As have most of the other countries in the world.
How come we’re having such a hard time? After all, are we not the leader of the free world? Are we not the world’s sole remaining superpower? And haven’t we been generous to a fault in providing arms and military advice and all manner of other economic and humanitarian aid to most of the countries now turning their backs on us?
These nations must be just plain ingrates.
Or maybe we’ve hoisted ourselves by our own petard.
Yep, one could make a pretty good case for the latter. Consider this:
Way back in 2002, our rock star Defense Secretary Don Rumsfeld famously referred to Guantanamo prisoners as "the worst of the worst." The press loved it. Rummie’s line became one of period’s most iconic quotes.
Rummie must have loved the line too, because he kept using it. As recently as 2005, he was saying, "If you think of the people down there, these are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, (Osama bin Laden's) bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker."
Well, Rummie, the rest of the world was listening too. Now, there are a host of reasons why countries are declining to provide homes for GITMO detainees – foreign governments have long memories when it comes to W’s cowboy unilateralism. But if we gave you the gift of a “worst of the worst” figleaf, why in the world would you be willing to accommodate the country that failed to consult you about Guantanamo, WMD, the invasion of Iraq, or much of anything else?
You wouldn’t. And they haven’t.
Rumsfeld kept delivering his favorite zinger – now joined by a veritable Greek chorus of sycophants including Richard Myers, then Chairman of Joint Chief of Staff -- despite massive and incontrovertible evidence that “the worst of the worst” riff was simply a lie.
For years now, we have all known that perhaps only five percent of those held at GITMO were even captured by the United States – more than 90 percent of them were picked up by the warlords of the Northern Alliance or by Pakistani forces in exchange for bounties. We have all known that only some eight percent of these prisoners were accused of being members of Al Qaeda, and that up to a third of them may have been imprisoned by mistake.
That information comes from Bush’s own CIA. But the White House has chosen to ignore it and continue to insist that all GITMO detainees are "enemy combatants" subject to indefinite incarceration. A top aide to Vice President Dick Cheney dismissed the CIA report and turned down proposals for a thorough review of the detainees' cases. “There will be no review," was the reported response of Cheney staff director David Addington, who added, "The president has determined that they are ALL enemy combatants. We are not going to revisit it."
Well, governments all over the world heard exactly the same information. So why would they want these “enemy combatants” free to stir up mischief in their country?
Now, if any of these countries needed a further excuse to say “no thanks,” there’s always this: “If these prisoners are so benign, how come the United States has refused to take in any of them?”
Tough question, that.
There have been ample opportunities for the U.S. to demonstrate the innocence of many GITMO prisoners by resettling them in America. At this very moment, the U.S. Circuit Court of Appeals in Washington is considering whether 17 Chinese Muslims should be allowed to enter our country.
These people are known as Uighurs. They are fierce opponents of the Chinese Government but have never harbored any hostility toward the U.S. The State Department says it can’t return them to China for fear they will be tortured or otherwise persecuted.
After a lower court Federal judge ordered the Uighurs released immediately and brought to his courtroom as their first step toward resettlement in the U.S., what did the government do? It sought to have the lower court ruling reversed by appealing it. NIMBY is alive and well. The appeals court decision is pending.
There are now some 60 GITMO detainees for whom the government is trying to find homes. It is extremely unlikely that this is going to happen in the waning weeks of the Bush Administration.
Leaving Barack Obama with yet another problem to solve. He has pledged to close Guantanamo Bay but, as of now, we don’t know what he will do with the prisoners we’d like to release, much less how he plans to handle those we still consider dangerous terrorists.
The takeaway from this mess is that we don’t have anything like the leverage we once thought we had. We are no longer trusted. Restoring that trust is going to be a long and difficult process. It promises to be one of President Obama’s toughest challenges.
Thanks a lot, Rummie!
Should we be surprised that Australia – once our staunchest ally in the “global war on terror” – has for the second time refused a request from the lame-duck Bush Administration to accept any of the Guantanamo Bay prisoners the U.S. Government has been trying to release?
As have most of the other countries in the world.
How come we’re having such a hard time? After all, are we not the leader of the free world? Are we not the world’s sole remaining superpower? And haven’t we been generous to a fault in providing arms and military advice and all manner of other economic and humanitarian aid to most of the countries now turning their backs on us?
These nations must be just plain ingrates.
Or maybe we’ve hoisted ourselves by our own petard.
Yep, one could make a pretty good case for the latter. Consider this:
Way back in 2002, our rock star Defense Secretary Don Rumsfeld famously referred to Guantanamo prisoners as "the worst of the worst." The press loved it. Rummie’s line became one of period’s most iconic quotes.
Rummie must have loved the line too, because he kept using it. As recently as 2005, he was saying, "If you think of the people down there, these are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, (Osama bin Laden's) bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker."
Well, Rummie, the rest of the world was listening too. Now, there are a host of reasons why countries are declining to provide homes for GITMO detainees – foreign governments have long memories when it comes to W’s cowboy unilateralism. But if we gave you the gift of a “worst of the worst” figleaf, why in the world would you be willing to accommodate the country that failed to consult you about Guantanamo, WMD, the invasion of Iraq, or much of anything else?
You wouldn’t. And they haven’t.
Rumsfeld kept delivering his favorite zinger – now joined by a veritable Greek chorus of sycophants including Richard Myers, then Chairman of Joint Chief of Staff -- despite massive and incontrovertible evidence that “the worst of the worst” riff was simply a lie.
For years now, we have all known that perhaps only five percent of those held at GITMO were even captured by the United States – more than 90 percent of them were picked up by the warlords of the Northern Alliance or by Pakistani forces in exchange for bounties. We have all known that only some eight percent of these prisoners were accused of being members of Al Qaeda, and that up to a third of them may have been imprisoned by mistake.
That information comes from Bush’s own CIA. But the White House has chosen to ignore it and continue to insist that all GITMO detainees are "enemy combatants" subject to indefinite incarceration. A top aide to Vice President Dick Cheney dismissed the CIA report and turned down proposals for a thorough review of the detainees' cases. “There will be no review," was the reported response of Cheney staff director David Addington, who added, "The president has determined that they are ALL enemy combatants. We are not going to revisit it."
Well, governments all over the world heard exactly the same information. So why would they want these “enemy combatants” free to stir up mischief in their country?
Now, if any of these countries needed a further excuse to say “no thanks,” there’s always this: “If these prisoners are so benign, how come the United States has refused to take in any of them?”
Tough question, that.
There have been ample opportunities for the U.S. to demonstrate the innocence of many GITMO prisoners by resettling them in America. At this very moment, the U.S. Circuit Court of Appeals in Washington is considering whether 17 Chinese Muslims should be allowed to enter our country.
These people are known as Uighurs. They are fierce opponents of the Chinese Government but have never harbored any hostility toward the U.S. The State Department says it can’t return them to China for fear they will be tortured or otherwise persecuted.
After a lower court Federal judge ordered the Uighurs released immediately and brought to his courtroom as their first step toward resettlement in the U.S., what did the government do? It sought to have the lower court ruling reversed by appealing it. NIMBY is alive and well. The appeals court decision is pending.
There are now some 60 GITMO detainees for whom the government is trying to find homes. It is extremely unlikely that this is going to happen in the waning weeks of the Bush Administration.
Leaving Barack Obama with yet another problem to solve. He has pledged to close Guantanamo Bay but, as of now, we don’t know what he will do with the prisoners we’d like to release, much less how he plans to handle those we still consider dangerous terrorists.
The takeaway from this mess is that we don’t have anything like the leverage we once thought we had. We are no longer trusted. Restoring that trust is going to be a long and difficult process. It promises to be one of President Obama’s toughest challenges.
Thanks a lot, Rummie!
Saturday, December 27, 2008
The “Yes We Can” Multiplier
By William Fisher
The year was 1961. The venue was the spacious, deeply carpeted office of the secretary of a major cabinet department – one of the “best and brightest” recruited by the newly installed administration of President John F. Kennedy.
The audience assembled for this morning meeting consisted of the department’s fifty or so most senior officers – those civil servants we refer to as bureaucrats, the ones who stay at their desks regardless of which party wins the White House.
“Good morning,” began the secretary. “I asked you here this morning because I want to share with you – and get your feedback on – a new policy idea I have.” His idea, he said, “has the potential to make a substantial contribution to our economy.”
Then followed fifteen minutes of way-down-in-the-weeds detail. Finally, having laid out his idea, the secretary concluded his presentation with the question, “What do you think?”
After what seemed an endless silence, the most senior audience member rose, cleared his throat, and said:
“That’s a brilliant idea, Mr. Secretary. In fact, I thought it was brilliant when I heard it from Herbert Hoover when he was Secretary of Commerce.”
Next month, similarly unfortunate meetings could be taking place throughout the government. The presenters of the brilliant new ideas will be some of the 3,000-plus political appointees tapped by President Barack Obama to occupy the top leadership positions in our hundreds of Federal departments, agencies and commissions.
Some of them may indeed present truly new ideas. But the chances are good that many of the brainstorms proffered to these career public servants will have been heard before.
Because, in the heady environment of every new administration, it’s all too easy to persuade yourself that you and your fellow appointees have a monopoly on wisdom.
And that means you are about to miss a huge opportunity. Because the career civil service folks who now report to you are the aggregate repositories of centuries of experience. They know where the machinery is and where the skeletons are buried. They are the folks – the only folks -- who know how to turn good policy into good programs that actually work.
Now, aside from peddlers of sub-prime mortgages, contractors who rip off the government, and governors who demand a quid pro quo before funding a children’s hospital, there are probably few groups as savagely maligned as career public servants. We blame them for Katrina. For torture. For failing to police the greed of Wall Street. For disgracing the Justice Department. For invading Iraq. For cozying up to the world’s worst dictators. For giving Osama his get-out-of-jail card.
But our scorn is sadly misplaced. In the vast majority of cases, the failures we seem so ready to attribute to our civil servants are the failures of their leaders – those “best and brightest” appointed by the president.
Now, no administration in our history has ever been immune from appointing a few total disasters to senior posts. But not since George W. Bush won the White House in 2000 have we have witnessed the magnitude of incompetence, indifference, arrogance, cronyism – even criminality – we have suffered during the past eight years.
The clueless “Brownie” of FEMA infamy became emblematic of the failure of leadership – but only emblematic. The Bush Administration had hundreds of Brownies hard at work giving government a bad name. Arguably, that was the only job at which they were wildly successful.
To be fair, however, the staggering mediocrity of the Bushies was not solely the responsibility of the president. Many of W’s nominees were Senate-confirmable, so Congress shares the blame for confirming them, and also for failing to hold them accountable by exercising any meaningful oversight.
Hopefully, the emphasis the Obama transition team has put on the combination of experience, imagination, and solid track records will help to improve the performance of government – at least that part of it the Bushies haven’t outsourced to private contractors.
We should dare to hope that this combination will bring us political appointees who understand that sound policies and exciting programs are worse than useless without solid implementation.
That means leaning heavily on – and really listening to – those who staff those programs -- the implementers. Our career government cadre.
Max Stier of Bloomberg News reminds us of the way Bush 41 addressed this woefully neglected constituency. He wrote:
Just days after his inauguration 20 years ago, the first President Bush gathered hundreds of the government's senior career executives at DAR Constitution Hall to praise their dedication, extol public service and ask for their help in governing.
"I'm coming to you as president and offering my hand in partnership. I'm asking you to join me as full members of our team. I promise to lead and to listen, and I promise to serve beside you as we work together to carry out the will of the American people," Bush said. "Our principles are clear: that government service is a noble calling and a public trust."
Obama, Stier wrote, “has signaled his own strong commitment to fostering public service -- to "make government cool again." As he begins his presidency, it would be smart for him to follow George H.W. Bush's example, personally meeting with senior civil service executives to explain his priorities, set expectations, and let them know their expertise and hard work will be needed to meet the many daunting challenges ahead.”
I agree.
Except that this job is too big for the president to tackle alone -- our government currently has about 1.8 million civilian employees. So this becomes a task for every one of Barack Obama’s political appointees -- and it can be a richly rewarding task.
Because the men and women of our career public service are weary of being the Bush Administration’s scapegoats. They are eager to be motivated, trained to perform to the highest standards, and ready to be held accountable.
Enlightened leadership can make “Yes We Can” their mantra too.
The year was 1961. The venue was the spacious, deeply carpeted office of the secretary of a major cabinet department – one of the “best and brightest” recruited by the newly installed administration of President John F. Kennedy.
The audience assembled for this morning meeting consisted of the department’s fifty or so most senior officers – those civil servants we refer to as bureaucrats, the ones who stay at their desks regardless of which party wins the White House.
“Good morning,” began the secretary. “I asked you here this morning because I want to share with you – and get your feedback on – a new policy idea I have.” His idea, he said, “has the potential to make a substantial contribution to our economy.”
Then followed fifteen minutes of way-down-in-the-weeds detail. Finally, having laid out his idea, the secretary concluded his presentation with the question, “What do you think?”
After what seemed an endless silence, the most senior audience member rose, cleared his throat, and said:
“That’s a brilliant idea, Mr. Secretary. In fact, I thought it was brilliant when I heard it from Herbert Hoover when he was Secretary of Commerce.”
Next month, similarly unfortunate meetings could be taking place throughout the government. The presenters of the brilliant new ideas will be some of the 3,000-plus political appointees tapped by President Barack Obama to occupy the top leadership positions in our hundreds of Federal departments, agencies and commissions.
Some of them may indeed present truly new ideas. But the chances are good that many of the brainstorms proffered to these career public servants will have been heard before.
Because, in the heady environment of every new administration, it’s all too easy to persuade yourself that you and your fellow appointees have a monopoly on wisdom.
And that means you are about to miss a huge opportunity. Because the career civil service folks who now report to you are the aggregate repositories of centuries of experience. They know where the machinery is and where the skeletons are buried. They are the folks – the only folks -- who know how to turn good policy into good programs that actually work.
Now, aside from peddlers of sub-prime mortgages, contractors who rip off the government, and governors who demand a quid pro quo before funding a children’s hospital, there are probably few groups as savagely maligned as career public servants. We blame them for Katrina. For torture. For failing to police the greed of Wall Street. For disgracing the Justice Department. For invading Iraq. For cozying up to the world’s worst dictators. For giving Osama his get-out-of-jail card.
But our scorn is sadly misplaced. In the vast majority of cases, the failures we seem so ready to attribute to our civil servants are the failures of their leaders – those “best and brightest” appointed by the president.
Now, no administration in our history has ever been immune from appointing a few total disasters to senior posts. But not since George W. Bush won the White House in 2000 have we have witnessed the magnitude of incompetence, indifference, arrogance, cronyism – even criminality – we have suffered during the past eight years.
The clueless “Brownie” of FEMA infamy became emblematic of the failure of leadership – but only emblematic. The Bush Administration had hundreds of Brownies hard at work giving government a bad name. Arguably, that was the only job at which they were wildly successful.
To be fair, however, the staggering mediocrity of the Bushies was not solely the responsibility of the president. Many of W’s nominees were Senate-confirmable, so Congress shares the blame for confirming them, and also for failing to hold them accountable by exercising any meaningful oversight.
Hopefully, the emphasis the Obama transition team has put on the combination of experience, imagination, and solid track records will help to improve the performance of government – at least that part of it the Bushies haven’t outsourced to private contractors.
We should dare to hope that this combination will bring us political appointees who understand that sound policies and exciting programs are worse than useless without solid implementation.
That means leaning heavily on – and really listening to – those who staff those programs -- the implementers. Our career government cadre.
Max Stier of Bloomberg News reminds us of the way Bush 41 addressed this woefully neglected constituency. He wrote:
Just days after his inauguration 20 years ago, the first President Bush gathered hundreds of the government's senior career executives at DAR Constitution Hall to praise their dedication, extol public service and ask for their help in governing.
"I'm coming to you as president and offering my hand in partnership. I'm asking you to join me as full members of our team. I promise to lead and to listen, and I promise to serve beside you as we work together to carry out the will of the American people," Bush said. "Our principles are clear: that government service is a noble calling and a public trust."
Obama, Stier wrote, “has signaled his own strong commitment to fostering public service -- to "make government cool again." As he begins his presidency, it would be smart for him to follow George H.W. Bush's example, personally meeting with senior civil service executives to explain his priorities, set expectations, and let them know their expertise and hard work will be needed to meet the many daunting challenges ahead.”
I agree.
Except that this job is too big for the president to tackle alone -- our government currently has about 1.8 million civilian employees. So this becomes a task for every one of Barack Obama’s political appointees -- and it can be a richly rewarding task.
Because the men and women of our career public service are weary of being the Bush Administration’s scapegoats. They are eager to be motivated, trained to perform to the highest standards, and ready to be held accountable.
Enlightened leadership can make “Yes We Can” their mantra too.
Monday, December 22, 2008
OBAMA’s 180 DEGREE TURNABOUT
By William Fisher
Key appointments announced by president-elect Barack Obama suggest that science will soon make a major comeback in the U.S. Government.
The outgoing administration of President George W. Bush has been harshly criticized by many members of the American scientific community for allowing ideology to distort or eliminate findings on such critical subjects as reproductive health, stem cell research, climate change, and a host of other environmental issues.
But Obama’s choices indicate that a hundred-and-eighty degree turn is in the offing. The change can already be seen in the president-elect’s first choices for scientific posts.
These include Steven Chu, head of the Lawrence Berkeley National Laboratory and Nobel laureate in physics, nominated to be energy secretary; John P. Holdren, a physicist and Harvard professor of environmental policy, who will serve as the president’s science adviser and as director of the White House Office of Science and Technology; Jane Lubchenco, a marine biologist from Oregon State University, who will lead the National Oceanic and Atmospheric Administration (NOAA), part of the U.S. Department of Commerce, which carries out much of the government’s research on global warming; Eric S. Lander, a professor of biology at the Massachusetts Institute of Technology (M.I.T.), who helped lead the effort to sequence the human genome; Dr. Harold Varmus, a Nobel Prize-winning cancer researcher, former director of the National Institutes of Health, and president of Memorial Sloan-Kettering Cancer Center in New York; Lisa Jackson, tapped to be administrator of the Environmental Protection Agency (EPA), who is a former commissioner of the New Jersey Department of Environmental Protection and who played a major role in implementing the state's program to stabilize greenhouse gas emissions at 1990 levels by 2020 and reduce emissions to 80 percent below 2006 levels by 2050; and Nancy Sutley, formerly deputy secretary for policy and intergovernmental relations with the California Environmental Protection Agency, to chair the White House Council on Environmental Quality.
Dr. Varmus will also co-chair the President’s Council of Advisers on Science and Technology along with Dr. Holdren.
Numerous other appointments are yet to come for science-based agencies including the Centers for Disease Control (CDC), the National Institutes of Health (NIH), the Food and Drug Administration (FDA), and the U.S. Public Health Service.
In a radio address in which he announced the appointments last week, Obama said, “It’s time we once again put science at the top of our agenda and worked to restore America’s place as the world leader in science and technology.”
“Whether it’s the science to slow global warming; the technology to protect our troops and confront bioterror and weapons of mass destruction; the research to find life-saving cures; or the innovations to remake our industries and create 21st century jobs — today more than ever, science holds the key to our survival as a planet and our security and prosperity as a nation,” Obama said.
Most of the American scientific community has been at odds with the Bush Administration since it won the White House in 2000. In its 2008 statement, one of the most prominent of scientific organizations, the Union of Concerned Scientists, demanded that the U.S. government return to “high standards of scientific integrity in forming and implementing its policies. Breaches of this principle have damaged the public good and the international leadership of the United States.”
“To meet its obligation to serve the public interest, the government must have reliable scientific work and advice at its disposal, and provide the public with reliable scientific information. This requires the government to provide federal scientists with the resources and the professional environment necessary to carry out their missions effectively and honestly,” the organization said.
Among the most controversial scientific issues to confront the Bush Administration is its promotion of abstinence-until-marriage education programs. These programs receive about $158 million annually from the Department of Health and Human Services (HHS).
But an investigation covering ten states by the Government Accountability Office (GAO) found that these programs are not reviewed for scientific accuracy before they are granted funding. The report found that only half reviewed the programs for scientifically accurate data on contraception, sexually transmitted infections and other information. It concluded that most state and federal efforts to assess the effectiveness of abstinence-until-marriage education programs "do not meet the minimum scientific standards" that experts say are necessary to be scientifically valid.
Commenting on that report, Dr. Michael Stebbins, Director of Biology for the Federation of American Scientists, told us, “Time after time, ideology has trumped science in a very ugly way during the Bush Administration. It is no surprise that the GAO finds major shortcomings in the abstinence only approach of the government. There are very real questions about whether this approach works. The evidence so far is that it does not, and this has an effect on, for example, whether we are fighting the spread of HIV-AIDS in the most effective way. But the White House – and members of Congress under its control – have move in lockstep to block science-based lawmaking.”
The GAO report is part of a multi-year series of findings that the Bush administration has often appointed poorly qualified people to head science-based agencies and has systematically manipulated science to comply with ideology.
For example, in banning federal funding for research on new stem cell lines, President Bush stated that “more than 60 genetically diverse" lines were available for potential research. Soon thereafter, then-HHS Secretary Tommy Thompson acknowledged that the correct number was 24 to 25. Still later, National Institutes of Health (NIH) Director Dr. Elias Zerhouni told Congress that only 11 stem cell lines were widely available to researchers.
Global Warming reports by the Environmental Protection Agency on the risks of climate change have also been suppressed. The White House added so many hedges to the climate change section of the EPA's report card on the environment that the then-administrator Christie Todd Whitman deleted the section rather than publish one she felt was scientifically inaccurate.
Defense Department officials presented misleading information on whether a functional Missile Defense System could be quickly deployed. A senior Pentagon official told a Senate panel that by the end of 2004, the system would be 90% effective in intercepting missiles from the Korean peninsula. But a year earlier, in April 2003, the GAO found the President’s plan unworkable and even dangerous. The Pentagon’s claim of 90% effectiveness “is not supported by any publicly available evidence, and it appears not to comport with the Pentagon’s own classified estimates,” the GAO reported.
Comments on Wetlands Policy from scientists at the Fish and Wildlife Service on the destructive impacts of proposed regulatory changes have been withheld. Scientists at the agency, which is part of the Interior Department, prepared an analysis showing that a new proposal from the Army Corps of Engineers would “encourage the destruction of stream channels and lead to increased loss of aquatic functions.” But the then-Interior Secretary failed to submit the scientists’ comments to the Corps. The Corps subsequently issued rules that weakened key wetland protections.
After social conservatives campaigned to require women to be “counseled” about an alleged risk of breast cancer from abortions, the National Cancer Institute revised its web site to suggest that studies of equal weight conflicted on the question, despite the fact that the scientific consensus is that no such link exists.
A report commissioned by Congressman Henry Waxman of California charged that the Bush Administration manipulated many of the government’s numerous Scientific Advisory Committees to advance its political and ideological agenda. Examples include appointing unqualified persons with industry ties, opposing qualified experts, and stacking advisory committees.
The Bush Administration contends that these examples are isolated coincidences.
Key appointments announced by president-elect Barack Obama suggest that science will soon make a major comeback in the U.S. Government.
The outgoing administration of President George W. Bush has been harshly criticized by many members of the American scientific community for allowing ideology to distort or eliminate findings on such critical subjects as reproductive health, stem cell research, climate change, and a host of other environmental issues.
But Obama’s choices indicate that a hundred-and-eighty degree turn is in the offing. The change can already be seen in the president-elect’s first choices for scientific posts.
These include Steven Chu, head of the Lawrence Berkeley National Laboratory and Nobel laureate in physics, nominated to be energy secretary; John P. Holdren, a physicist and Harvard professor of environmental policy, who will serve as the president’s science adviser and as director of the White House Office of Science and Technology; Jane Lubchenco, a marine biologist from Oregon State University, who will lead the National Oceanic and Atmospheric Administration (NOAA), part of the U.S. Department of Commerce, which carries out much of the government’s research on global warming; Eric S. Lander, a professor of biology at the Massachusetts Institute of Technology (M.I.T.), who helped lead the effort to sequence the human genome; Dr. Harold Varmus, a Nobel Prize-winning cancer researcher, former director of the National Institutes of Health, and president of Memorial Sloan-Kettering Cancer Center in New York; Lisa Jackson, tapped to be administrator of the Environmental Protection Agency (EPA), who is a former commissioner of the New Jersey Department of Environmental Protection and who played a major role in implementing the state's program to stabilize greenhouse gas emissions at 1990 levels by 2020 and reduce emissions to 80 percent below 2006 levels by 2050; and Nancy Sutley, formerly deputy secretary for policy and intergovernmental relations with the California Environmental Protection Agency, to chair the White House Council on Environmental Quality.
Dr. Varmus will also co-chair the President’s Council of Advisers on Science and Technology along with Dr. Holdren.
Numerous other appointments are yet to come for science-based agencies including the Centers for Disease Control (CDC), the National Institutes of Health (NIH), the Food and Drug Administration (FDA), and the U.S. Public Health Service.
In a radio address in which he announced the appointments last week, Obama said, “It’s time we once again put science at the top of our agenda and worked to restore America’s place as the world leader in science and technology.”
“Whether it’s the science to slow global warming; the technology to protect our troops and confront bioterror and weapons of mass destruction; the research to find life-saving cures; or the innovations to remake our industries and create 21st century jobs — today more than ever, science holds the key to our survival as a planet and our security and prosperity as a nation,” Obama said.
Most of the American scientific community has been at odds with the Bush Administration since it won the White House in 2000. In its 2008 statement, one of the most prominent of scientific organizations, the Union of Concerned Scientists, demanded that the U.S. government return to “high standards of scientific integrity in forming and implementing its policies. Breaches of this principle have damaged the public good and the international leadership of the United States.”
“To meet its obligation to serve the public interest, the government must have reliable scientific work and advice at its disposal, and provide the public with reliable scientific information. This requires the government to provide federal scientists with the resources and the professional environment necessary to carry out their missions effectively and honestly,” the organization said.
Among the most controversial scientific issues to confront the Bush Administration is its promotion of abstinence-until-marriage education programs. These programs receive about $158 million annually from the Department of Health and Human Services (HHS).
But an investigation covering ten states by the Government Accountability Office (GAO) found that these programs are not reviewed for scientific accuracy before they are granted funding. The report found that only half reviewed the programs for scientifically accurate data on contraception, sexually transmitted infections and other information. It concluded that most state and federal efforts to assess the effectiveness of abstinence-until-marriage education programs "do not meet the minimum scientific standards" that experts say are necessary to be scientifically valid.
Commenting on that report, Dr. Michael Stebbins, Director of Biology for the Federation of American Scientists, told us, “Time after time, ideology has trumped science in a very ugly way during the Bush Administration. It is no surprise that the GAO finds major shortcomings in the abstinence only approach of the government. There are very real questions about whether this approach works. The evidence so far is that it does not, and this has an effect on, for example, whether we are fighting the spread of HIV-AIDS in the most effective way. But the White House – and members of Congress under its control – have move in lockstep to block science-based lawmaking.”
The GAO report is part of a multi-year series of findings that the Bush administration has often appointed poorly qualified people to head science-based agencies and has systematically manipulated science to comply with ideology.
For example, in banning federal funding for research on new stem cell lines, President Bush stated that “more than 60 genetically diverse" lines were available for potential research. Soon thereafter, then-HHS Secretary Tommy Thompson acknowledged that the correct number was 24 to 25. Still later, National Institutes of Health (NIH) Director Dr. Elias Zerhouni told Congress that only 11 stem cell lines were widely available to researchers.
Global Warming reports by the Environmental Protection Agency on the risks of climate change have also been suppressed. The White House added so many hedges to the climate change section of the EPA's report card on the environment that the then-administrator Christie Todd Whitman deleted the section rather than publish one she felt was scientifically inaccurate.
Defense Department officials presented misleading information on whether a functional Missile Defense System could be quickly deployed. A senior Pentagon official told a Senate panel that by the end of 2004, the system would be 90% effective in intercepting missiles from the Korean peninsula. But a year earlier, in April 2003, the GAO found the President’s plan unworkable and even dangerous. The Pentagon’s claim of 90% effectiveness “is not supported by any publicly available evidence, and it appears not to comport with the Pentagon’s own classified estimates,” the GAO reported.
Comments on Wetlands Policy from scientists at the Fish and Wildlife Service on the destructive impacts of proposed regulatory changes have been withheld. Scientists at the agency, which is part of the Interior Department, prepared an analysis showing that a new proposal from the Army Corps of Engineers would “encourage the destruction of stream channels and lead to increased loss of aquatic functions.” But the then-Interior Secretary failed to submit the scientists’ comments to the Corps. The Corps subsequently issued rules that weakened key wetland protections.
After social conservatives campaigned to require women to be “counseled” about an alleged risk of breast cancer from abortions, the National Cancer Institute revised its web site to suggest that studies of equal weight conflicted on the question, despite the fact that the scientific consensus is that no such link exists.
A report commissioned by Congressman Henry Waxman of California charged that the Bush Administration manipulated many of the government’s numerous Scientific Advisory Committees to advance its political and ideological agenda. Examples include appointing unqualified persons with industry ties, opposing qualified experts, and stacking advisory committees.
The Bush Administration contends that these examples are isolated coincidences.
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