By William Fisher
Ever since John Ashcroft began indiscriminately rounding up “Middle-Eastern-looking” folks in the U.S. and holding them incommunicado following the terrorist attacks of 9/11, the American Muslim community has been trying to mobilize public support against knee-jerk racial and ethnic profiling.
But their success has been, to be kind, limited. Muslim- and Arab-American organizations lack the resources enjoyed by many other influential lobbying groups in Washington and elsewhere.
They’re also trying to take on a Sisyphus-like mission. Now, a new poll by the Gallup Center for Muslim Studies finds that only 45 percent of Americans consider Muslims in the country as loyal and 25 percent of Americans say they wouldn't want to have Muslims as a neighbor. Predictably, the poll also found that American Muslims experience emotional turbulence due to the stereotypes and suspicion of Islam since the Sept. 11, 2001 terrorist attacks.
But now, two gaffes by the Federal Government may be making their objective a tad more achievable.
On the heels of the recent poll, two major Muslim-American organizations issued scathing indictments of the tactics of the Federal Bureau of Investigation and the Department of Homeland Security.
The Muslim Public Affairs Council (MPAC) said the recent revelation that the FBI used paid informants and agent provocateurs in U.S. mosques that have participated in law enforcement outreach efforts “undermines the decade-long relationship that American Muslims built with law enforcement.”
And another major advocacy group, the American-Arab Anti-Discrimination Committee (ADC), filed a complaint charging that the Department of Homeland Security unfairly targeted Arab and Muslim communities.
The FBI’s covert surveillance of mosques “sends a devastating message to community leaders and imams who have worked diligently to foster greater understanding between law enforcement and their communities,” MPAC said in a statement.
MPAC Executive Director Salam Al-Marayati urged greater transparency by the FBI in their dealings with the Muslim community. “Clearly, law enforcement has a crucial job to do in keeping our country safe. The American Muslim community and its national organizations have demonstrated time and again their consistent commitment to developing solutions that can protect America while also upholding privacy and civil liberties,” he said.
Prof. David Cole of Georgetown University, one of the nation’s preeminent constitutional scholars, agrees. He told this reporter, “Nearly eight years after 9/11, there is little evidence of support for al Qaeda or terrorism among Muslims in the United States. Paid informants are a highly intrusive form of surveillance, and should be restricted to instances where there are grounds for suspecting serious criminal activity. If the FBI is seen to be infiltrating mosques it will only breed distrust and make relations with the Muslim communities that much more difficult.”
MPAC said, “It is now up to the FBI and law enforcement agencies to build once again the trust and respect necessary to re-engage with the American Muslim community.” The organization said it will “continue to raise these community concerns with federal law enforcement officials in its efforts to help form policies that preserve civil liberties while also protecting our nation.”
Al-Marayati pointed out what he termed the “irony” in a speech given by FBI Director Robert Meuller to the Council on Foreign Relations in the same week as the surveillance revelations became public.
Meuller’s speech said, "Too often, we run up against a wall between law enforcement and the community -- a wall based on myth and misperception of the work we do... Oftentimes, the communities from which we need the most help are those who trust us the least. But it is in these communities that we must re-double our efforts.”
“The simple truth is that we cannot do our jobs without the trust of the American people. And we cannot build that trust without reaching out to say, 'We are on your side. We stand ready to help’," Meuller said.
The FBI’s tactics surfaced last week in the case of Ahmadullah Niazi in Tustin, California. According to MPAC, in 2007, Niazi reported suspicious behavior by a new Muslim convert in his mosque, who he said was talking about jihad and suggested planning a terrorist attack in conversations with others at the Islamic Center of Irvine. He and a mosque official filed a report with the Los Angeles field office of the FBI. The FBI then told mosque officials that they were investigating the matter, and the mosque successfully got a three-year restraining order against the individual.
Niazi reported that FBI officials later contacted him to ask him to be a paid informant. When he refused, he said they threatened to make his life "a living hell." Niazi was arrested last week on charges related to lying on his immigration documents and was released yesterday on $500,000 bail.
MPAC said mosque members were shocked when FBI Special Agent Thomas J. Ropel III testified that the convert reported by Niazi was actually an FBI informant who had infiltrated several mosques in Orange County, California.
In its complaint filed with the Department of Homeland Security, the ADC asked for “a full and comprehensive investigation” into a program known as 'Operation Frontline,' run by Immigration and Customs Enforcement (ICE), which is part of DHS.
ADC said Operation Frontline was ostensibly designed to prevent terrorist activity around the 2004 Presidential election, but it primarily targeted men from Muslim-majority countries without links to any national security-related activity. ADC filed numerous Freedom of Information Act (FOIA) requests to gain access to data on the nationalities and religions of those detained and deported. It says these requests were not addressed by DHS. ADC then filed a separate FOIA request and lawsuit against DHS and its ICE component to compel them to release the data.
As a result, a sample of 300 Operation Frontline investigation files data was released as part of a court settlement.
ADC says analysis of this data shows that Operation Frontline targeted foreign nationals from Muslim-majority countries. For example, 79% of the foreign nationals targeted by Operation Frontline were from Muslim-majority countries; deportable foreign nationals from Muslim-majority countries were 1,280 times more likely to be targeted by Operation Frontline than were similar individuals from other countries; Operation Frontline investigations included in the sample released by ICE led to no charges and no convictions for national-security related crimes.
These developments seem to add credibility to results of the new poll. "Muslims are the most negatively viewed religious community among Americans," said Dalia Mogahed, executive director of the Gallup Center, which is a nonpartisan research center affiliated with the Gallup polling organization.
Despite the fact that millions of Muslims have been living in the U.S. for generations, the poll presents a portrait of an often-misunderstood community -- one that is integrated socio-economically but culturally alienated; that succeeds in the workforce but struggles to find contentment.
And though the report states that while Muslim Americans are more likely than the general public to hold a professional job, they expressed less satisfaction with their standard of living and community.
The disparity is a sign of the alienation some Muslim Americans may feel,
experts say. Ahmed Younis, a senior Gallup analyst, said some Muslim Americans feel a sense of "otherness" created by outside perceptions of their religion and a lack of involvement in their larger community.
The poll numbers suggest economic and career success among Muslim Americans -- they have a higher employment rate than the national average and are among the nation's most educated religious groups. Yet only 41% described themselves as "thriving."
Muslim Americans ranked highest among American religious groups who believed their communities were getting worse. Muslim Americans ages 18 to 29 in particular reported discontent with their jobs and communities. Approximately 35 percent of American Muslims are African-American.
And contrary to conventional beliefs – largely based on overseas models – American Muslim women enjoy a high degree of equality with men.
The poll results are based on a sample of 941 Americans who identified themselves as Muslim in a survey of more than 300,000 Americans over the course of 2008.
So the question is: Will ordinary Americans pay any attention to the poll results, much less the transgressions of the FBI and the DHS? Will they even know about law enforcement’s totally avoidable errors?
Well, if they read the so-called Mainstream Press, the likelihood is less than nil. For years, the American Muslim community has been one of the most under-reported groups in the U.S. For most cable news channels, the subject has become one of the third rails of American journalism since 9/11. And the print media’s silence on this issue began long before circulation and ad revenue began to fall off a cliff and the print media started decimating their newsrooms to cut costs.
And if American voters don’t care about the outrageously clumsy performance of their law enforcement agencies, neither will Congress.
Meanwhile, the CIA will doubtless continue its expensive efforts to polish its image so that it can try to recruit more language-savvy Arab- and other Muslim American agents and analysts.
Didn’t it ever occur to the FBI and ICE that they’re sabotaging the CIA?
Which brings me back to Bob Mueller’s speech. “The communities from which we need the most help are those who trust us the least. But it is in these communities that we must re-double our efforts,” is what he said.
Well, spying on mosques hardly meets that test. Good luck, Bob.
Monday, March 09, 2009
AMERICAN MUSLIMS CHARGE FBI, DHS
By William Fisher
On the heels of a recent poll that found that American Muslims experience emotional turbulence due to the stereotypes and suspicion of Islam since the Sept. 11, 2001 terrorist attacks, two major Muslim-American organizations issued scathing indictments of the tactics of the Federal Bureau of Investigation and the Department of Homeland Security.
The Muslim Public Affairs Council (MPAC) said the recent revelation that the FBI used paid informants and agent provocateurs in U.S. mosques that have participated in law enforcement outreach efforts “undermines the decade-long relationship that American Muslims built with law enforcement.”
And another major advocacy group, the American-Arab Anti-Discrimination Committee (ADC), filed a complaint charging that the Department of Homeland Security unfairly targeted Arab and Muslim communities.
The FBI’s covert surveillance of mosques “sends a devastating message to community leaders and imams who have worked diligently to foster greater understanding between law enforcement and their communities,” MPAC said in a statement.
MPAC Executive Director Salam Al-Marayati urged greater transparency by the FBI in their dealings with the Muslim community. “Clearly, law enforcement has a crucial job to do in keeping our country safe. The American Muslim community and its national organizations have demonstrated time and again their consistent commitment to developing solutions that can protect America while also upholding privacy and civil liberties,” he said.
Prof. David Cole of Georgetown University, one of the nation’s preeminent constitutional scholars, agrees. He told us: “Nearly eight years after 9/11, there is little evidence of support for al Qaeda or terrorism among Muslims in the United States. Paid informants are a highly intrusive form of surveillance, and should be restricted to instances where there are grounds for suspecting serious criminal activity. If the FBI is seen to be infiltrating mosques it will only breed distrust and make relations with the Muslim communities that much more difficult.”
MPAC said, “It is now up to the FBI and law enforcement agencies to build once again the trust and respect necessary to re-engage with the American Muslim community.” The organization said it will “continue to raise these community concerns with federal law enforcement officials in its efforts to help form policies that preserve civil liberties while also protecting our nation.”
Al-Marayati pointed out what he termed the “irony” in a speech given by FBI Director Robert Meuller to the Council on Foreign Relations in the same week as the surveillance revelations became public.
Meuller’s speech said, "Too often, we run up against a wall between law enforcement and the community -- a wall based on myth and misperception of the work we do... Oftentimes, the communities from which we need the most help are those who trust us the least. But it is in these communities that we must re-double our efforts.”
“The simple truth is that we cannot do our jobs without the trust of the American people. And we cannot build that trust without reaching out to say, 'We are on your side. We stand ready to help’," Meuller said.
The FBI’s tactics surfaced last week in the case of Ahmadullah Niazi in Tustin, California. According to MPAC, in 2007, Niazi reported suspicious behavior by a new Muslim convert in his mosque, who he said was talking about jihad and suggested planning a terrorist attack in conversations with others at the Islamic Center of Irvine. He and a mosque official filed a report with the Los Angeles field office of the FBI. The FBI then told mosque officials that they were investigating the matter, and the mosque successfully got a three-year restraining order against the individual.
Niazi reported that FBI officials later contacted him to ask him to be a paid informant. When he refused, he said they threatened to make his life "a living hell." Niazi was arrested last week on charges related to lying on his immigration documents and was released yesterday on $500,000 bail.
MPAC said mosque members were shocked when FBI Special Agent Thomas J. Ropel III testified that the convert reported by Niazi was actually an FBI informant who had infiltrated several mosques in Orange County, California.
In its complaint filed with the Department of Homeland Security, the ADC asked for “a full and comprehensive investigation” into a program known as 'Operation Frontline,' run by Immigration and Custom Enforcement (ICE), which is part of DHS.
ADC said Operation Frontline was ostensibly designed to prevent "terrorist" activity around the 2004 Presidential election, but primarily targeted men from Muslim-majority countries without links to any national security-related activity. ADC said it filed numerous Freedom of Information Act (FOIA) requests in order to gain access to data on the nationalities and religions of those detained and deported. It says these requests were not addressed by DHS. ADC then filed a separate FOIA request and lawsuit against DHS and its ICE component to compel them to release the data.
As a result, a sample of 300 Operation Frontline investigation files data was released as part of a court settlement.
ADC says analysis of this data shows that Operation Frontline targeted foreign nationals from Muslim-majority countries. For example, 79% of the foreign nationals targeted by Operation Frontline were from Muslim-majority countries; deportable foreign nationals from Muslim-majority countries were 1,280 times more likely to be targeted by Operation Frontline than were similar individuals from other countries; Operation Frontline investigations included in the sample released by ICE led to no charges and no convictions for national-security related crimes.
These developments seem to add credibility to results of a new poll of Muslim Americans. "Muslims are the most negatively viewed religious community among Americans," said Dalia Mogahed, executive director of the Gallup Center for Muslim Studies, a nonpartisan research center affiliated with the Gallup polling organization.
"Only 45 percent of Americans consider Muslims in the country as loyal and 25 percent of Americans said they wouldn't want to have Muslims as a neighbor," she said.
The poll presents a portrait of an often-misunderstood community -- one that is integrated socio-economically but culturally alienated; that succeeds in the workforce but struggles to find contentment.
And though the report states that while Muslim Americans are more likely than the general public to hold a professional job, they expressed less satisfaction with their standard of living and community.
The disparity is a sign of the alienation some Muslim Americans may feel,
experts say. Ahmed Younis, a senior Gallup analyst, said some Muslim Americans feel a sense of "otherness" created by outside perceptions of their religion and a lack of involvement in their larger community.
The poll numbers suggest economic and career success among Muslim Americans -- they have a higher employment rate than the national average and are among the nation's most educated religious groups. Yet only 41% described themselves as "thriving."
Muslim Americans ranked highest among American religious groups who believed their communities were getting worse. Muslim Americans ages 18 to 29 in particular reported discontent with their jobs and communities. Approximately 35 percent of American Muslims are African-American.
And contrary to conventional beliefs – largely based on overseas models – American Muslim women enjoy a high degree of equality with men.
The poll results are based on a sample of 941 Americans who identified themselves as Muslim in a survey of more than 300,000 Americans over the course of 2008.
On the heels of a recent poll that found that American Muslims experience emotional turbulence due to the stereotypes and suspicion of Islam since the Sept. 11, 2001 terrorist attacks, two major Muslim-American organizations issued scathing indictments of the tactics of the Federal Bureau of Investigation and the Department of Homeland Security.
The Muslim Public Affairs Council (MPAC) said the recent revelation that the FBI used paid informants and agent provocateurs in U.S. mosques that have participated in law enforcement outreach efforts “undermines the decade-long relationship that American Muslims built with law enforcement.”
And another major advocacy group, the American-Arab Anti-Discrimination Committee (ADC), filed a complaint charging that the Department of Homeland Security unfairly targeted Arab and Muslim communities.
The FBI’s covert surveillance of mosques “sends a devastating message to community leaders and imams who have worked diligently to foster greater understanding between law enforcement and their communities,” MPAC said in a statement.
MPAC Executive Director Salam Al-Marayati urged greater transparency by the FBI in their dealings with the Muslim community. “Clearly, law enforcement has a crucial job to do in keeping our country safe. The American Muslim community and its national organizations have demonstrated time and again their consistent commitment to developing solutions that can protect America while also upholding privacy and civil liberties,” he said.
Prof. David Cole of Georgetown University, one of the nation’s preeminent constitutional scholars, agrees. He told us: “Nearly eight years after 9/11, there is little evidence of support for al Qaeda or terrorism among Muslims in the United States. Paid informants are a highly intrusive form of surveillance, and should be restricted to instances where there are grounds for suspecting serious criminal activity. If the FBI is seen to be infiltrating mosques it will only breed distrust and make relations with the Muslim communities that much more difficult.”
MPAC said, “It is now up to the FBI and law enforcement agencies to build once again the trust and respect necessary to re-engage with the American Muslim community.” The organization said it will “continue to raise these community concerns with federal law enforcement officials in its efforts to help form policies that preserve civil liberties while also protecting our nation.”
Al-Marayati pointed out what he termed the “irony” in a speech given by FBI Director Robert Meuller to the Council on Foreign Relations in the same week as the surveillance revelations became public.
Meuller’s speech said, "Too often, we run up against a wall between law enforcement and the community -- a wall based on myth and misperception of the work we do... Oftentimes, the communities from which we need the most help are those who trust us the least. But it is in these communities that we must re-double our efforts.”
“The simple truth is that we cannot do our jobs without the trust of the American people. And we cannot build that trust without reaching out to say, 'We are on your side. We stand ready to help’," Meuller said.
The FBI’s tactics surfaced last week in the case of Ahmadullah Niazi in Tustin, California. According to MPAC, in 2007, Niazi reported suspicious behavior by a new Muslim convert in his mosque, who he said was talking about jihad and suggested planning a terrorist attack in conversations with others at the Islamic Center of Irvine. He and a mosque official filed a report with the Los Angeles field office of the FBI. The FBI then told mosque officials that they were investigating the matter, and the mosque successfully got a three-year restraining order against the individual.
Niazi reported that FBI officials later contacted him to ask him to be a paid informant. When he refused, he said they threatened to make his life "a living hell." Niazi was arrested last week on charges related to lying on his immigration documents and was released yesterday on $500,000 bail.
MPAC said mosque members were shocked when FBI Special Agent Thomas J. Ropel III testified that the convert reported by Niazi was actually an FBI informant who had infiltrated several mosques in Orange County, California.
In its complaint filed with the Department of Homeland Security, the ADC asked for “a full and comprehensive investigation” into a program known as 'Operation Frontline,' run by Immigration and Custom Enforcement (ICE), which is part of DHS.
ADC said Operation Frontline was ostensibly designed to prevent "terrorist" activity around the 2004 Presidential election, but primarily targeted men from Muslim-majority countries without links to any national security-related activity. ADC said it filed numerous Freedom of Information Act (FOIA) requests in order to gain access to data on the nationalities and religions of those detained and deported. It says these requests were not addressed by DHS. ADC then filed a separate FOIA request and lawsuit against DHS and its ICE component to compel them to release the data.
As a result, a sample of 300 Operation Frontline investigation files data was released as part of a court settlement.
ADC says analysis of this data shows that Operation Frontline targeted foreign nationals from Muslim-majority countries. For example, 79% of the foreign nationals targeted by Operation Frontline were from Muslim-majority countries; deportable foreign nationals from Muslim-majority countries were 1,280 times more likely to be targeted by Operation Frontline than were similar individuals from other countries; Operation Frontline investigations included in the sample released by ICE led to no charges and no convictions for national-security related crimes.
These developments seem to add credibility to results of a new poll of Muslim Americans. "Muslims are the most negatively viewed religious community among Americans," said Dalia Mogahed, executive director of the Gallup Center for Muslim Studies, a nonpartisan research center affiliated with the Gallup polling organization.
"Only 45 percent of Americans consider Muslims in the country as loyal and 25 percent of Americans said they wouldn't want to have Muslims as a neighbor," she said.
The poll presents a portrait of an often-misunderstood community -- one that is integrated socio-economically but culturally alienated; that succeeds in the workforce but struggles to find contentment.
And though the report states that while Muslim Americans are more likely than the general public to hold a professional job, they expressed less satisfaction with their standard of living and community.
The disparity is a sign of the alienation some Muslim Americans may feel,
experts say. Ahmed Younis, a senior Gallup analyst, said some Muslim Americans feel a sense of "otherness" created by outside perceptions of their religion and a lack of involvement in their larger community.
The poll numbers suggest economic and career success among Muslim Americans -- they have a higher employment rate than the national average and are among the nation's most educated religious groups. Yet only 41% described themselves as "thriving."
Muslim Americans ranked highest among American religious groups who believed their communities were getting worse. Muslim Americans ages 18 to 29 in particular reported discontent with their jobs and communities. Approximately 35 percent of American Muslims are African-American.
And contrary to conventional beliefs – largely based on overseas models – American Muslim women enjoy a high degree of equality with men.
The poll results are based on a sample of 941 Americans who identified themselves as Muslim in a survey of more than 300,000 Americans over the course of 2008.
Wednesday, March 04, 2009
TRUTH COMMISSION PROPOSAL REVEALS DEEP DIVISIONS
By William Fisher
In a preview of the heated divisions likely be triggered by the formation of a “truth commission” to investigate detainee interrogation, warrantless wiretapping and other alleged violations during the administration of President George W. Bush, witnesses before a Senate committee today characterized such a body as either a “profoundly bad idea” or “critically important” to avoiding the mistakes of the past.
The hearing before the Senate Judiciary Committee was the first held in Congress to explore the “truth commission” proposal put forth by committee chairman Senator Patrick Leahy, a Democrat of Vermont.
One of the witnesses, former U.N. Ambassador Thomas Pickering, who also served as Undersecretary of State during the administration of George Herbert Walker Bush, told the senators, “It’s not enough to say we’re going to look ahead. We need to know where we’ve been, what happened, and the implications for the nation and our foreign policy.”
He added that the nation must “take stock” in order to “neutralize the narrative of our adversaries” and “restore our reputation in the world.”
But another witness, David Rifkin, a senior Justice Department official under Presidents Ronald Reagan and George H.W. Bush, told the Committee that Congress has no authority to “outsource criminal investigations” to another body. In response to a comment from Sen. Sheldon Whitehouse, a Democrat from Rhode Island, Rifkin said he thought the “real idea behind a truth commission is to target a small number of Bush Administration officials.”
The Department of Justice should do that,” he added.
The testimony before the committee mirrors the country’s diversity of opinion about the wisdom of a “truth commission” among legal scholars, human rights and religious advocacy groups, as well as between Democrats and Republicans.
A Gallup poll, released last month, found that on the issue of detainee torture, 38 percent favored a criminal investigation while 24 percent favored an inquiry by an independent panel; thirty-four percent of those polled said they did not support additional investigation of Bush’s policies.
President Barack Obama has approached the “truth commission” proposal with caution. He told a recent press conference that his inclination was to look forward, not backward, but that “no one is above the law.”
The views of Rep. Nancy Pelosi, speaker of the House of Representatives, appear to have changed over time. She refused to hold impeachment hearings when George W. Bush was President, but now prefers a “blue-ribbon panel” to probe the Bush administration. She also wants the Department of Justice to appoint a special prosecutor.
Such a panel has been proposed in the House by Judiciary Committee Chairman John Conyers, a Michigan Democrat.
Human rights and religious groups have also been divided on the “truth commission” issue.
One religious group, the National Religious Campaign Against Torture (NRCAT) has called for an impartial, nonpartisan, and independent “Commission of Inquiry” to investigate U.S.-sponsored torture and to ascertain the extent to which Bush administration interrogation practices constituted "cruel, inhuman or degrading treatment." Their statement was signed by nearly two dozen prominent religious leaders, representing a broad array of religious denominations.
The American Civil Liberties Union has urged the establishment of a Select Committee to work in conjunction with Senator Leahy’s commission, believing that the combination of both committees would be an effective format for congressional review of Bush administration policies.
Another prominent human rights organization, the Center for Constitutional Rights, believes that the issue should be resolved by the Obama Justice Department.
“A full investigation and prosecution of these actions by the Bush administration is necessary for the Obama administration to meaningfully reassert the rule of law in the United States. Government officials are not above the law, and their actions impact the lives of millions of people around the world. Prosecuting these officials for their activities is, in fact, a meaningful mechanism for securing justice for the victims and the survivors of torture and war crimes, as well as for deterring future government officials from repeating this conduct.”
Another witness before Leahy’s committee, Jeremy Rabkin, a law professor at the George Mason University School of Law, told senators that simply being called to testify before a “truth commission” would imply guilt. He said the commission would be a violation of the witnesses’ civil rights, since “witnesses would not be able to defend themselves” as they would in a criminal prosecution in court.
But another witness, retired Admiral Lee Gunn, former Inspector General for the Navy, endorsed the “truth commission” idea and was highly critical of the detainee treatment practices of both the military and the Central Intelligence Agency. He said the guidance given by U.S. military and civilian leaders regarding the custody and interrogation of prisoners was “unclear, ambiguous, or just plain wrong.”
“We have failed American service men and women over the past eight years,” he declared, adding, “We have damaged the reputations of people who are trying to win hearts and minds” abroad.
Witness John Farmer, who served as a senior counsel to the 9/11 Commission, expressed support for an independent commission to examine Bush administration detainee and interrogation policies and practices. He told the committee that our torture of detainees has been counter-productive.
“Our tactics have prevented us from prosecuting” people involved in the 9/11 conspiracy, citing the case of the alleged 20th hijacker, Mohammad al-Qahtani.
The hearing’s intensity was heightened by the release earlier this week of a number of memoranda from the Justice Department’s Office of Legal Counsel (OLC), the unit that advises the president on major legal matters. Some of these memos told former President George W. Bush that, in wartime, he could send troops to arrest and detain people within the U.S. as “enemy combatants,” suspend the Constitutional rights of free speech and press, and surveille U.S. citizens without a warrant or showing of probable cause.
Sen. Arlen Specter of Pennsylvania, the senior Republican on the committee, said, “the OLC opinions are "shocking."
Near the top of the agenda for senators and witnesses was the issue of whether any kind of immunity from prosecution should be granted to those who testify before a “truth commission.”
Sen. Leahy said he was not interested in having the Justice Department prosecute low-level people and would consider granting them immunity. He said the work of a “truth commission” would be fact-finding and that evidence of criminal violations would be referred to the DOJ.
In a preview of the heated divisions likely be triggered by the formation of a “truth commission” to investigate detainee interrogation, warrantless wiretapping and other alleged violations during the administration of President George W. Bush, witnesses before a Senate committee today characterized such a body as either a “profoundly bad idea” or “critically important” to avoiding the mistakes of the past.
The hearing before the Senate Judiciary Committee was the first held in Congress to explore the “truth commission” proposal put forth by committee chairman Senator Patrick Leahy, a Democrat of Vermont.
One of the witnesses, former U.N. Ambassador Thomas Pickering, who also served as Undersecretary of State during the administration of George Herbert Walker Bush, told the senators, “It’s not enough to say we’re going to look ahead. We need to know where we’ve been, what happened, and the implications for the nation and our foreign policy.”
He added that the nation must “take stock” in order to “neutralize the narrative of our adversaries” and “restore our reputation in the world.”
But another witness, David Rifkin, a senior Justice Department official under Presidents Ronald Reagan and George H.W. Bush, told the Committee that Congress has no authority to “outsource criminal investigations” to another body. In response to a comment from Sen. Sheldon Whitehouse, a Democrat from Rhode Island, Rifkin said he thought the “real idea behind a truth commission is to target a small number of Bush Administration officials.”
The Department of Justice should do that,” he added.
The testimony before the committee mirrors the country’s diversity of opinion about the wisdom of a “truth commission” among legal scholars, human rights and religious advocacy groups, as well as between Democrats and Republicans.
A Gallup poll, released last month, found that on the issue of detainee torture, 38 percent favored a criminal investigation while 24 percent favored an inquiry by an independent panel; thirty-four percent of those polled said they did not support additional investigation of Bush’s policies.
President Barack Obama has approached the “truth commission” proposal with caution. He told a recent press conference that his inclination was to look forward, not backward, but that “no one is above the law.”
The views of Rep. Nancy Pelosi, speaker of the House of Representatives, appear to have changed over time. She refused to hold impeachment hearings when George W. Bush was President, but now prefers a “blue-ribbon panel” to probe the Bush administration. She also wants the Department of Justice to appoint a special prosecutor.
Such a panel has been proposed in the House by Judiciary Committee Chairman John Conyers, a Michigan Democrat.
Human rights and religious groups have also been divided on the “truth commission” issue.
One religious group, the National Religious Campaign Against Torture (NRCAT) has called for an impartial, nonpartisan, and independent “Commission of Inquiry” to investigate U.S.-sponsored torture and to ascertain the extent to which Bush administration interrogation practices constituted "cruel, inhuman or degrading treatment." Their statement was signed by nearly two dozen prominent religious leaders, representing a broad array of religious denominations.
The American Civil Liberties Union has urged the establishment of a Select Committee to work in conjunction with Senator Leahy’s commission, believing that the combination of both committees would be an effective format for congressional review of Bush administration policies.
Another prominent human rights organization, the Center for Constitutional Rights, believes that the issue should be resolved by the Obama Justice Department.
“A full investigation and prosecution of these actions by the Bush administration is necessary for the Obama administration to meaningfully reassert the rule of law in the United States. Government officials are not above the law, and their actions impact the lives of millions of people around the world. Prosecuting these officials for their activities is, in fact, a meaningful mechanism for securing justice for the victims and the survivors of torture and war crimes, as well as for deterring future government officials from repeating this conduct.”
Another witness before Leahy’s committee, Jeremy Rabkin, a law professor at the George Mason University School of Law, told senators that simply being called to testify before a “truth commission” would imply guilt. He said the commission would be a violation of the witnesses’ civil rights, since “witnesses would not be able to defend themselves” as they would in a criminal prosecution in court.
But another witness, retired Admiral Lee Gunn, former Inspector General for the Navy, endorsed the “truth commission” idea and was highly critical of the detainee treatment practices of both the military and the Central Intelligence Agency. He said the guidance given by U.S. military and civilian leaders regarding the custody and interrogation of prisoners was “unclear, ambiguous, or just plain wrong.”
“We have failed American service men and women over the past eight years,” he declared, adding, “We have damaged the reputations of people who are trying to win hearts and minds” abroad.
Witness John Farmer, who served as a senior counsel to the 9/11 Commission, expressed support for an independent commission to examine Bush administration detainee and interrogation policies and practices. He told the committee that our torture of detainees has been counter-productive.
“Our tactics have prevented us from prosecuting” people involved in the 9/11 conspiracy, citing the case of the alleged 20th hijacker, Mohammad al-Qahtani.
The hearing’s intensity was heightened by the release earlier this week of a number of memoranda from the Justice Department’s Office of Legal Counsel (OLC), the unit that advises the president on major legal matters. Some of these memos told former President George W. Bush that, in wartime, he could send troops to arrest and detain people within the U.S. as “enemy combatants,” suspend the Constitutional rights of free speech and press, and surveille U.S. citizens without a warrant or showing of probable cause.
Sen. Arlen Specter of Pennsylvania, the senior Republican on the committee, said, “the OLC opinions are "shocking."
Near the top of the agenda for senators and witnesses was the issue of whether any kind of immunity from prosecution should be granted to those who testify before a “truth commission.”
Sen. Leahy said he was not interested in having the Justice Department prosecute low-level people and would consider granting them immunity. He said the work of a “truth commission” would be fact-finding and that evidence of criminal violations would be referred to the DOJ.
Tuesday, March 03, 2009
Something Obama Can Do. Now.
By William Fisher
President Obama apparently had a successful first meeting with Canadian Prime Minister Steven Harper. Obviously, their main – perhaps only – subject was the current economic meltdown.
But event disappointed many of the president’s supporters. These are the folks who are confused by what they see as the Administration’s ambivalence about the nexus between national security and civil and human rights.
In his first week in office, the president signed executive orders to shut down Guantanamo within a year, review all the cases there within 120 days, ban “enhanced interrogation” techniques, and bring a new era of openness and transparency to his government.
Before his first month was out, Obama’s Justice Department released some of those famous memos written by John Yoo and other Bush lawyers, justifying virtually infinite presidential power. And the CIA disclosed that it destroyed not two, but ninety-two, interrogation tapes.
But while all that was going on, Obama’s DOJ lawyers were in court, twice choosing to follow the same tired road so frequently traveled by George W. Bush: Invoking the so-called “state secrets privilege” to keep cases from ever getting heard in court.
In one case, the government’s lawyers used the “state secrets” defense to get a federal court to throw out a case against a Boeing subsidiary called Jeppesen Dataplan, in which four Guantanamo prisoners alleged that they were victims of “extraordinary rendition,” and that Jeppesen provided the CIA with the logistical support for their flights into foreign torture chambers.
In another case, Obama’s DOJ used “state secrets” in an attempt to halt a lawsuit charging that the government’s evidence was obtained through Bush’s warrantless wiretapping program.
Maybe most of us can accept that all governments have secrets and have to have a way to keep their secrets secret – although the two cases cited above would not seem to be particularly great candidates for that inclusion in that category. Unless these cases somehow make it to court, we’ll never know. Unless someone leaks the facts to media.
But there’s one case the government refuses to talk about, despite that fact that all the evidence has been public for years.
That, of course, is the case of Maher Arar. Arar is the Canadian citizen who was stopped by immigration authorities at Kennedy Airport in 2002, while he was in transit back to Canada. He was detained for two weeks, denied a lawyer, and then shipped off first to Jordan and then to Syria. In Syria, he was held incommunicado in a cell the size of a grave and tortured for ten months before the Syrians released him without charges.
The Canadian Government formed a special commission to review their citizen’s “extraordinary rendition.” After an exhaustive investigation, the body admitted that what happened to Arar was a result of faulty information the Canadian Royal Mounted Police gave to U.S. authorities. The head of the RCMP was forced to resign, and Canada gave Arar an official apology and ten million dollars.
This all happened on George Bush’s watch. But after incessant stonewalling about the issue, all that Secretary of State Condi Rice would say was that she thought the affair was not handled very well. And Maher Arar, for reasons no one will discuss, is somehow still on the U.S. “no-fly” list.
Which brings me back to Obama’s meeting with Canadian Prime Minister Harper.
Yes, the economic meltdown had to be top of both men’s agendas. But how difficult would it have been for our new president raise the Arar issue with Harper? Or vice versa?
As far as we’ve been told, nothing like that ever happened. And that’s an Obama opportunity lost.
But it’s not too late. An honest statement from the Obama Administration – and an apology to Arar – could still be of enormous help in reassuring those of us who believe in the rule of law that our new president is really committed to justice and transparency.
President Obama apparently had a successful first meeting with Canadian Prime Minister Steven Harper. Obviously, their main – perhaps only – subject was the current economic meltdown.
But event disappointed many of the president’s supporters. These are the folks who are confused by what they see as the Administration’s ambivalence about the nexus between national security and civil and human rights.
In his first week in office, the president signed executive orders to shut down Guantanamo within a year, review all the cases there within 120 days, ban “enhanced interrogation” techniques, and bring a new era of openness and transparency to his government.
Before his first month was out, Obama’s Justice Department released some of those famous memos written by John Yoo and other Bush lawyers, justifying virtually infinite presidential power. And the CIA disclosed that it destroyed not two, but ninety-two, interrogation tapes.
But while all that was going on, Obama’s DOJ lawyers were in court, twice choosing to follow the same tired road so frequently traveled by George W. Bush: Invoking the so-called “state secrets privilege” to keep cases from ever getting heard in court.
In one case, the government’s lawyers used the “state secrets” defense to get a federal court to throw out a case against a Boeing subsidiary called Jeppesen Dataplan, in which four Guantanamo prisoners alleged that they were victims of “extraordinary rendition,” and that Jeppesen provided the CIA with the logistical support for their flights into foreign torture chambers.
In another case, Obama’s DOJ used “state secrets” in an attempt to halt a lawsuit charging that the government’s evidence was obtained through Bush’s warrantless wiretapping program.
Maybe most of us can accept that all governments have secrets and have to have a way to keep their secrets secret – although the two cases cited above would not seem to be particularly great candidates for that inclusion in that category. Unless these cases somehow make it to court, we’ll never know. Unless someone leaks the facts to media.
But there’s one case the government refuses to talk about, despite that fact that all the evidence has been public for years.
That, of course, is the case of Maher Arar. Arar is the Canadian citizen who was stopped by immigration authorities at Kennedy Airport in 2002, while he was in transit back to Canada. He was detained for two weeks, denied a lawyer, and then shipped off first to Jordan and then to Syria. In Syria, he was held incommunicado in a cell the size of a grave and tortured for ten months before the Syrians released him without charges.
The Canadian Government formed a special commission to review their citizen’s “extraordinary rendition.” After an exhaustive investigation, the body admitted that what happened to Arar was a result of faulty information the Canadian Royal Mounted Police gave to U.S. authorities. The head of the RCMP was forced to resign, and Canada gave Arar an official apology and ten million dollars.
This all happened on George Bush’s watch. But after incessant stonewalling about the issue, all that Secretary of State Condi Rice would say was that she thought the affair was not handled very well. And Maher Arar, for reasons no one will discuss, is somehow still on the U.S. “no-fly” list.
Which brings me back to Obama’s meeting with Canadian Prime Minister Harper.
Yes, the economic meltdown had to be top of both men’s agendas. But how difficult would it have been for our new president raise the Arar issue with Harper? Or vice versa?
As far as we’ve been told, nothing like that ever happened. And that’s an Obama opportunity lost.
But it’s not too late. An honest statement from the Obama Administration – and an apology to Arar – could still be of enormous help in reassuring those of us who believe in the rule of law that our new president is really committed to justice and transparency.
Courts to Test Executive Power, Secrecy
By William Fisher
In two court cases that could test the limits of the Obama Administration’s executive authority as well as its commitment to transparency, human rights lawyers are challenging the government’s right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.
In one case, the government shut down the Al Haramain Islamic Foundation, a Saudi charity, in 2004, allegedly using information obtained though illegal wiretaps. In the other, also involving a Muslim-oriented charity, the American Civil Liberties Union (ACLU) is challenging the constitutionality of government programs that designate organizations as “terrorists” and close them down without providing these groups a way to contest the decision in court.
In the Al Haramain case, the Bush Administration’s Treasury Department found that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group’s lawyers. Now the lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.
The organization sued the Bush Administration. But when the case came to court, in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But the judge in that case, Vaughn Walker of the federal district court in San Francisco, rejected the government’s claims. In a first-of-its-kind ruling, the judge said the government had to comply with the Foreign Intelligence Surveillance Act (FISA), which forbids it from obtaining evidence without first obtaining a warrant from the FISA court.
The president, the judge said, could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
And when the Obama Administration filed an emergency appeal before the Ninth Circuit Court of Appeals in San Francisco last week, it hoped for a reversal of the lower court’s ruling. But the appeals court surprised government lawyers – and legal scholars – by rejecting their appeal, thus allowing the lower court decision to stand.
The decision was a significant victory for Al-Haramain’s lawyers, who said they needed the classified documents to represent their clients. They said they were surprised to see the Obama administration arguing so vigorously for the same expansive Bush-era view of executive power.
“I did not expect this from the Obama justice department,” said Jon Eisenberg, the Oakland, California, lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”
“They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”
Eisenberg told us, “In three years of litigating this case, I'd come to expect this sort of thing from the Bush Department of Justice, but I'm astounded to see the new Obama DOJ continuing down the same path. So far, at least, we're not seeing any ‘change we can believe in’ regarding presidential abuse of the state secrets privilege.
The Al-Haramain case represented the second time the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal.
In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed. There has not yet been a court decision in that case.
The Administration of George W. Bush invoked the state secrets doctrine more than any other government in U.S. history. In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons with first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."
In the second case, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the funds and operations of another Muslim-oriented charity, KindHearts, three years ago. The American Civil Liberties Union (ACLU), which is representing KindHearts, said the shut-down was carried out “without notice or a hearing, based simply on the assertion that the charity was ‘under investigation’." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, “again without providing it with a reason or meaningful opportunity to defend itself.”
The ACLU is asking a federal court to block the government from blacklisting KindHearts without providing it due process, and to lift the freeze on the organization's assets.
"OFAC's unlimited authority to seize KindHearts' property and shut it down without giving the charity notice or an opportunity to defend itself is unconstitutional," Hina Shamsi, lead ACLU attorney on the case, told us.
"KindHearts has been in limbo for more than two and a half years and is asking for independent judicial scrutiny of what has been, until now, unilateral government action," she said.
KindHearts was founded in 2002 – after the government shut down a number of Muslim charities –to provide humanitarian aid abroad and at home in the U.S. in full compliance with the law. Shamsi said that “Despite the efforts KindHearts took to implement OFAC guidance and policies and otherwise exercise diligence, OFAC froze its assets in February 2006.”
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review.
The ACLU’S Shamsi told us, “The government’s actions in KindHearts’ case show the extent to which the government has unconstitutional and unfettered authority. The government has shut the charity down based on secret evidence, without any notice of wrongdoing, any probable cause, and without providing KindHearts an opportunity to defend itself or any judicial review.”
“These violations of fundamental due process guarantees were committed against a humanitarian organization that sought to alleviate human suffering both at home and abroad. The government’s actions send a profoundly negative message to other U.S. non-profits and do nothing to serve this country’s security or its image in the eyes of the world,” she said.
She added, “We think that the entire regime is unconstitutional because it fails to provide constitutionally adequate substantive criteria or procedural safeguards.”
“The government’s unfettered authority to shut down KindHearts based on suspicion alone has not only left the charity unable to fulfill its humanitarian mission; it sends a profoundly negative message to other U.S.-based non-profits that seek to alleviate human suffering. At a time when the United States needs to restore its image in the eyes of the world, the government’s actions do not serve either this country’s security or its commitment to justice, ” she told us.
In two court cases that could test the limits of the Obama Administration’s executive authority as well as its commitment to transparency, human rights lawyers are challenging the government’s right to use information obtained through warrantless wiretapping as evidence and to shut down charitable organizations without allowing them to defend themselves.
In one case, the government shut down the Al Haramain Islamic Foundation, a Saudi charity, in 2004, allegedly using information obtained though illegal wiretaps. In the other, also involving a Muslim-oriented charity, the American Civil Liberties Union (ACLU) is challenging the constitutionality of government programs that designate organizations as “terrorists” and close them down without providing these groups a way to contest the decision in court.
In the Al Haramain case, the Bush Administration’s Treasury Department found that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group’s lawyers. Now the lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.
The organization sued the Bush Administration. But when the case came to court, in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But the judge in that case, Vaughn Walker of the federal district court in San Francisco, rejected the government’s claims. In a first-of-its-kind ruling, the judge said the government had to comply with the Foreign Intelligence Surveillance Act (FISA), which forbids it from obtaining evidence without first obtaining a warrant from the FISA court.
The president, the judge said, could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
And when the Obama Administration filed an emergency appeal before the Ninth Circuit Court of Appeals in San Francisco last week, it hoped for a reversal of the lower court’s ruling. But the appeals court surprised government lawyers – and legal scholars – by rejecting their appeal, thus allowing the lower court decision to stand.
The decision was a significant victory for Al-Haramain’s lawyers, who said they needed the classified documents to represent their clients. They said they were surprised to see the Obama administration arguing so vigorously for the same expansive Bush-era view of executive power.
“I did not expect this from the Obama justice department,” said Jon Eisenberg, the Oakland, California, lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”
“They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”
Eisenberg told us, “In three years of litigating this case, I'd come to expect this sort of thing from the Bush Department of Justice, but I'm astounded to see the new Obama DOJ continuing down the same path. So far, at least, we're not seeing any ‘change we can believe in’ regarding presidential abuse of the state secrets privilege.
The Al-Haramain case represented the second time the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal.
In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed. There has not yet been a court decision in that case.
The Administration of George W. Bush invoked the state secrets doctrine more than any other government in U.S. history. In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons with first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."
In the second case, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze the funds and operations of another Muslim-oriented charity, KindHearts, three years ago. The American Civil Liberties Union (ACLU), which is representing KindHearts, said the shut-down was carried out “without notice or a hearing, based simply on the assertion that the charity was ‘under investigation’." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, “again without providing it with a reason or meaningful opportunity to defend itself.”
The ACLU is asking a federal court to block the government from blacklisting KindHearts without providing it due process, and to lift the freeze on the organization's assets.
"OFAC's unlimited authority to seize KindHearts' property and shut it down without giving the charity notice or an opportunity to defend itself is unconstitutional," Hina Shamsi, lead ACLU attorney on the case, told us.
"KindHearts has been in limbo for more than two and a half years and is asking for independent judicial scrutiny of what has been, until now, unilateral government action," she said.
KindHearts was founded in 2002 – after the government shut down a number of Muslim charities –to provide humanitarian aid abroad and at home in the U.S. in full compliance with the law. Shamsi said that “Despite the efforts KindHearts took to implement OFAC guidance and policies and otherwise exercise diligence, OFAC froze its assets in February 2006.”
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review.
The ACLU’S Shamsi told us, “The government’s actions in KindHearts’ case show the extent to which the government has unconstitutional and unfettered authority. The government has shut the charity down based on secret evidence, without any notice of wrongdoing, any probable cause, and without providing KindHearts an opportunity to defend itself or any judicial review.”
“These violations of fundamental due process guarantees were committed against a humanitarian organization that sought to alleviate human suffering both at home and abroad. The government’s actions send a profoundly negative message to other U.S. non-profits and do nothing to serve this country’s security or its image in the eyes of the world,” she said.
She added, “We think that the entire regime is unconstitutional because it fails to provide constitutionally adequate substantive criteria or procedural safeguards.”
“The government’s unfettered authority to shut down KindHearts based on suspicion alone has not only left the charity unable to fulfill its humanitarian mission; it sends a profoundly negative message to other U.S.-based non-profits that seek to alleviate human suffering. At a time when the United States needs to restore its image in the eyes of the world, the government’s actions do not serve either this country’s security or its commitment to justice, ” she told us.
Saturday, February 28, 2009
LAWYERS WILL PRESS FOR AL-MARRI SUPREME COURT RULING
By William Fisher
Lawyers for imprisoned “enemy combatant” Ali Saleh Kahlah al-Marri are vowing to press the Supreme Court to hear their case even though al-Marri was suddenly transferred to the civilian justice system after more than five years in solitary confinement in a military brig.
According to American Civil Liberties Union attorney Jonathan Hafetz, the case is far too loaded with potential precedent-setting issues to simply disappear “on the eve of a dispositive ruling” by the Supreme Court.
There are two principal reasons, Hafetz told us. “First, al-Marri could be detained as an “enemy combatant” again if acquitted at trial. Second, absent a Supreme Court review, this power could be used again against other legal residents or American citizens in the future, absent a definitive ruling from the high court that it is illegal.”
Marri, legally in the U.S. on a student visa, was arrested in 2003 and accused of being a member of an al Qaeda “sleeper cell” in the U.S. But before his trial could begin, then President George W. Bush declared him an “enemy combatant” under sweeping new powers claimed by the president following the 9/11 terrorist attacks on the World Trade Center and the Pentagon. He was taken to a U.S. Navy brig in South Carolina, where he has been imprisoned ever since.
Then, in a move that surprised many observers, the new administration of President Barack Obama took swift action to have him indicted for “material support” of terrorism by a civilian grand jury for trial in a federal court, and moved to dismiss al-Marri’s pending litigation before the U.S. Supreme Court.
Acting Solicitor General Edwin S. Kneedler, the government’s lawyer, petitioned the court to dismiss the case and issue an order "as expeditiously as possible" to allow the government to transfer Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because Marri was challenging a status he no longer had -- a person held by the military without charges. "No live controversy remains in this case," the government filing said.
But the ACLU’s Hafetz told us, “The fact they (the government) have indicted does not necessarily make the case moot.” He said Marri's defense lawyers “will continue to pursue this case to make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial. It is critical that the Court hears al-Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants’."
“We will press it and oppose the government’s application to dismiss the case,” Hafetz told us.
Marri could face up to 15 years in prison on allegations of conspiracy and
providing material support to terrorists.
The Qatari native journeyed to Illinois, purportedly to begin work on a master's degree at the same college that had awarded him a bachelor’s degree earlier. His arrival came a day before terrorist strikes hit the Pentagon and the World Trade Center in New York on Sept. 11, 2001.
After multiple interrogations by the Federal Bureau of Investigation (FBI), Marri was indicted for credit card fraud and making false statements to his interrogators. But before his trial could begin, he was designated an “enemy combatant” and transferred to military control.
In 2005, Bush administration officials filed a sworn statement in a South Carolina court saying that Marri had personally met Osama bin Laden and Khalid Sheik Mohammed, the self-proclaimed mastermind of the terrorist attacks, and volunteered to become a martyr in the U.S. The filing alleged that Marri was in contact with an alleged travel facilitator for al-Qaeda, Mustafa Ahmed al-Hawsawi. U.S. authorities said that Hawsawi gave him more than $10,000 to finance his trip to Illinois.
However, none of those allegations appeared in Marri's recent indictment, a brief two-page, two-count document alleging “material support” for a terrorist organization.
The transfer of Marri's case has triggered ambivalence among human rights and legal advocacy groups. Most of these commentators generally applaud the move -- which seems to agree with their position that federal courts should be the venue for trials of suspected terrorists. But at the same time, many have expressed dismay that the move may short-circuit a hearing and a once-and-for-all decision by the Supreme Court.
"In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values," Attorney General Eric H. Holder Jr. said.
The al-Marri case bears a striking resemblance to one involving Jose Padilla, the only U.S. citizen to be designated as an “enemy combatant” by then President Bush and imprisoned by the military with charges or trial.
In the Padilla case, then Attorney General John Ashcroft interrupted a trip to Russia to convene a press conference, where he accused Padilla of conspiring to detonate a "dirty bomb" on American soil.
The Bush administration initially declared Padilla an “enemy combatant” and held him in military custody for three years, but then sought to avoid a Supreme Court review of his case, and in 2005 -- on the eve of a high court habeas corpus hearing where the government would have to present evidence to justify his continued detention – the Department of Justice (DOJ) petitioned for his release to face criminal indictment in U.S. courts. He was abruptly transferred to a civilian jail
The Brooklyn-born Puerto Rican was arrested by the FBI in May 2002 after returning from Pakistan. Padilla, then 31, spent the next three years locked up in military custody in a South Carolina naval brig without charges or access to lawyers.
Padilla was never charged with planning to detonate a “dirty bomb.” By the time of his trial, in 2007, he was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. The “dirty bomb” allegation had been dropped. Padilla was convicted and sentenced to 17 years and four months in prison.
The ACLU’s Hafetz agrees on the similarities, but points out that, in the Marri case, the Court “has already agreed to hear the case and the fact that it is happening again -- after years of illegal detention followed by charges only on the eve of a dispositive ruling on this issue by the Supreme Court -- underscores the need for review.”
“It will be important to see whether the Obama administration is rejecting this illegal and egregious detention policy of the Bush administration or just indicting now to duck Supreme Court review and perpetuate that policy--a move that would defy, not honor, the rule of law,” he told us.
Lawyers for imprisoned “enemy combatant” Ali Saleh Kahlah al-Marri are vowing to press the Supreme Court to hear their case even though al-Marri was suddenly transferred to the civilian justice system after more than five years in solitary confinement in a military brig.
According to American Civil Liberties Union attorney Jonathan Hafetz, the case is far too loaded with potential precedent-setting issues to simply disappear “on the eve of a dispositive ruling” by the Supreme Court.
There are two principal reasons, Hafetz told us. “First, al-Marri could be detained as an “enemy combatant” again if acquitted at trial. Second, absent a Supreme Court review, this power could be used again against other legal residents or American citizens in the future, absent a definitive ruling from the high court that it is illegal.”
Marri, legally in the U.S. on a student visa, was arrested in 2003 and accused of being a member of an al Qaeda “sleeper cell” in the U.S. But before his trial could begin, then President George W. Bush declared him an “enemy combatant” under sweeping new powers claimed by the president following the 9/11 terrorist attacks on the World Trade Center and the Pentagon. He was taken to a U.S. Navy brig in South Carolina, where he has been imprisoned ever since.
Then, in a move that surprised many observers, the new administration of President Barack Obama took swift action to have him indicted for “material support” of terrorism by a civilian grand jury for trial in a federal court, and moved to dismiss al-Marri’s pending litigation before the U.S. Supreme Court.
Acting Solicitor General Edwin S. Kneedler, the government’s lawyer, petitioned the court to dismiss the case and issue an order "as expeditiously as possible" to allow the government to transfer Marri to civilian custody.
The petition claimed that the Supreme Court case was no longer relevant because Marri was challenging a status he no longer had -- a person held by the military without charges. "No live controversy remains in this case," the government filing said.
But the ACLU’s Hafetz told us, “The fact they (the government) have indicted does not necessarily make the case moot.” He said Marri's defense lawyers “will continue to pursue this case to make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial. It is critical that the Court hears al-Marri's case and categorically rejects the notion that any president has the sweeping authority to deprive individuals living in the United States of their most basic constitutional rights by designating them 'enemy combatants’."
“We will press it and oppose the government’s application to dismiss the case,” Hafetz told us.
Marri could face up to 15 years in prison on allegations of conspiracy and
providing material support to terrorists.
The Qatari native journeyed to Illinois, purportedly to begin work on a master's degree at the same college that had awarded him a bachelor’s degree earlier. His arrival came a day before terrorist strikes hit the Pentagon and the World Trade Center in New York on Sept. 11, 2001.
After multiple interrogations by the Federal Bureau of Investigation (FBI), Marri was indicted for credit card fraud and making false statements to his interrogators. But before his trial could begin, he was designated an “enemy combatant” and transferred to military control.
In 2005, Bush administration officials filed a sworn statement in a South Carolina court saying that Marri had personally met Osama bin Laden and Khalid Sheik Mohammed, the self-proclaimed mastermind of the terrorist attacks, and volunteered to become a martyr in the U.S. The filing alleged that Marri was in contact with an alleged travel facilitator for al-Qaeda, Mustafa Ahmed al-Hawsawi. U.S. authorities said that Hawsawi gave him more than $10,000 to finance his trip to Illinois.
However, none of those allegations appeared in Marri's recent indictment, a brief two-page, two-count document alleging “material support” for a terrorist organization.
The transfer of Marri's case has triggered ambivalence among human rights and legal advocacy groups. Most of these commentators generally applaud the move -- which seems to agree with their position that federal courts should be the venue for trials of suspected terrorists. But at the same time, many have expressed dismay that the move may short-circuit a hearing and a once-and-for-all decision by the Supreme Court.
"In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values," Attorney General Eric H. Holder Jr. said.
The al-Marri case bears a striking resemblance to one involving Jose Padilla, the only U.S. citizen to be designated as an “enemy combatant” by then President Bush and imprisoned by the military with charges or trial.
In the Padilla case, then Attorney General John Ashcroft interrupted a trip to Russia to convene a press conference, where he accused Padilla of conspiring to detonate a "dirty bomb" on American soil.
The Bush administration initially declared Padilla an “enemy combatant” and held him in military custody for three years, but then sought to avoid a Supreme Court review of his case, and in 2005 -- on the eve of a high court habeas corpus hearing where the government would have to present evidence to justify his continued detention – the Department of Justice (DOJ) petitioned for his release to face criminal indictment in U.S. courts. He was abruptly transferred to a civilian jail
The Brooklyn-born Puerto Rican was arrested by the FBI in May 2002 after returning from Pakistan. Padilla, then 31, spent the next three years locked up in military custody in a South Carolina naval brig without charges or access to lawyers.
Padilla was never charged with planning to detonate a “dirty bomb.” By the time of his trial, in 2007, he was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. The “dirty bomb” allegation had been dropped. Padilla was convicted and sentenced to 17 years and four months in prison.
The ACLU’s Hafetz agrees on the similarities, but points out that, in the Marri case, the Court “has already agreed to hear the case and the fact that it is happening again -- after years of illegal detention followed by charges only on the eve of a dispositive ruling on this issue by the Supreme Court -- underscores the need for review.”
“It will be important to see whether the Obama administration is rejecting this illegal and egregious detention policy of the Bush administration or just indicting now to duck Supreme Court review and perpetuate that policy--a move that would defy, not honor, the rule of law,” he told us.
Thursday, February 26, 2009
UK MINISTER APOLOGIZES FOR AIDING US RENDITIONS
By William Fisher
In a stunning reversal, Britain’s government admitted yesterday that it participated in the ‘extraordinary rendition’ to Afghanistan of two terror suspects captured in Iraq by the U.S.
U.K. Defense Secretary John Hutton told Britain's House of Commons that the two individuals were captured by U.K. forces in Iraq, transferred to U.S. detention and later moved to a U.S. detention facility in Afghanistan.
His admission contradicts the British Government’s earlier assertions that there were only two cases involving detainee rendition. That statement involved the Indian Ocean island of Diego Garcia, a British territory, which the government admitted had twice been used by the U.S. as a refueling stop for the secret transfer of terrorism suspects.
Apologizing to lawmakers for the error, Hutton said, "I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my department," Hutton told lawmakers. "I must stress that this was based on the information available to ministers and those who were briefing them at the time."
At the time, the U.S. denied using the island for extraordinary rendition flights, but later acknowledged that it had misled the British government. British Foreign Secretary David Miliband later released a statement declaring that the U.S. had studied a list of 391 flights compiled by British human rights groups and lawmakers and that no other cases had been found.
Hutton told lawmakers that the two men are still being held in Afghanistan. He said the U.S. has given assurances that they are being held "in a humane, safe and secure environment."
It was unclear if the men were being held along with some 600 others at the U.S. military prison at Bagram Air Force Base, near Kabul. That base has been the target of recent charges from human rights groups that it has become Afghanistan’s Guantanamo Bay, that many prisoners have been locked up there for years without charges or access to lawyers, and that some have been tortured and abused.
Hutton’s disclosure comes on the heels of a firestorm caused by a lawsuit brought in the U.K. by British resident Binyam Mohamed, who was arrested in Pakistan in 2002, and who charged that British intelligence was complicit with the CIA in rendering him to Morocco, then to Bagram, and finally flying him to Guantanamo Bay, Cuba.
Mohamed was held there since 2004 before his release and return to the U.K. earlier this week. No charges were ever filed against him. Until shortly before his release, he had been on a hunger strike at the Caribbean military prison.
The lawsuit he filed in the U.K. – similar to a separate suit brought in the U.S. -- has caused a furor in Britain, where officials asked the British High Court not to make public documents that Mohamed’s lawyers say substantiate his treatment. Opposition spokesmen there claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Miliband, denied there was any threat.
Mohamed’s U.S. lawyer, Steven Watt, a staff attorney in the Human Rights program of the American Civil Liberties Union (ACLU), told this reporter, “It’s about time the U.K. came clean. News of Britain’s complicity with the CIA has been slowly leaking out for several years. We now know more than enough to conclude that the U.K. has played a role.”
“Both countries are still trying to keep this information secret, either to avoid political embarrassment or to cover up some egregious human rights abuses,” he said.
Asked by this reporter about the timing of the Defense Minister’s announcement and apology, Watt said, “Maybe they finally want to make a clean breast of it.”
In a related development, newly-confirmed CIA Director Leon Panetta said Wednesday that President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will ensure they are not tortured or abused.
"If it's someone we are interested in, there is no purpose to rendering anyone, particularly if it's a high-value target," Panetta said.
Panetta added that he believes prisoners should only be handed over to countries that have a legitimate legal interest in them, such as their home country or a country where charges are pending against them.
Panetta seemed to be trying to distance himself from statements he made during his congressional confirmation hearing earlier this month. He told lawmakers that the Obama administration intended to continue rendering prisoners captured in the war on terrorism.
Panetta said the administration would rely on a long-standing policy to first secure “diplomatic assurances” from the country that the prisoner would not be tortured or have his human rights violated. But human rights groups point out that such assurances have proved to be virtually worthless in the past, when suspects have been flown to countries with egregious human rights records.
Panetta said the Obama administration would "make very sure" that prisoners are not mistreated after they are rendered. Asked by the Associated Press exactly how that would be done, Panetta said, "Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that," he said. "No. 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen."
The White House is currently reviewing the extraordinary rendition policy and program.
Panetta said he does not believe additional prisoners will be sent to Guantanamo this year. In his first week in office, Obama ordered the prison closed within a year, but no decision has yet been made public on what to do with the roughly 250 inmates still there. Only a handful have been charged with a crime, and those trials have been suspended while the Obama administration reviews its legal options.
In a stunning reversal, Britain’s government admitted yesterday that it participated in the ‘extraordinary rendition’ to Afghanistan of two terror suspects captured in Iraq by the U.S.
U.K. Defense Secretary John Hutton told Britain's House of Commons that the two individuals were captured by U.K. forces in Iraq, transferred to U.S. detention and later moved to a U.S. detention facility in Afghanistan.
His admission contradicts the British Government’s earlier assertions that there were only two cases involving detainee rendition. That statement involved the Indian Ocean island of Diego Garcia, a British territory, which the government admitted had twice been used by the U.S. as a refueling stop for the secret transfer of terrorism suspects.
Apologizing to lawmakers for the error, Hutton said, "I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my department," Hutton told lawmakers. "I must stress that this was based on the information available to ministers and those who were briefing them at the time."
At the time, the U.S. denied using the island for extraordinary rendition flights, but later acknowledged that it had misled the British government. British Foreign Secretary David Miliband later released a statement declaring that the U.S. had studied a list of 391 flights compiled by British human rights groups and lawmakers and that no other cases had been found.
Hutton told lawmakers that the two men are still being held in Afghanistan. He said the U.S. has given assurances that they are being held "in a humane, safe and secure environment."
It was unclear if the men were being held along with some 600 others at the U.S. military prison at Bagram Air Force Base, near Kabul. That base has been the target of recent charges from human rights groups that it has become Afghanistan’s Guantanamo Bay, that many prisoners have been locked up there for years without charges or access to lawyers, and that some have been tortured and abused.
Hutton’s disclosure comes on the heels of a firestorm caused by a lawsuit brought in the U.K. by British resident Binyam Mohamed, who was arrested in Pakistan in 2002, and who charged that British intelligence was complicit with the CIA in rendering him to Morocco, then to Bagram, and finally flying him to Guantanamo Bay, Cuba.
Mohamed was held there since 2004 before his release and return to the U.K. earlier this week. No charges were ever filed against him. Until shortly before his release, he had been on a hunger strike at the Caribbean military prison.
The lawsuit he filed in the U.K. – similar to a separate suit brought in the U.S. -- has caused a furor in Britain, where officials asked the British High Court not to make public documents that Mohamed’s lawyers say substantiate his treatment. Opposition spokesmen there claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Miliband, denied there was any threat.
Mohamed’s U.S. lawyer, Steven Watt, a staff attorney in the Human Rights program of the American Civil Liberties Union (ACLU), told this reporter, “It’s about time the U.K. came clean. News of Britain’s complicity with the CIA has been slowly leaking out for several years. We now know more than enough to conclude that the U.K. has played a role.”
“Both countries are still trying to keep this information secret, either to avoid political embarrassment or to cover up some egregious human rights abuses,” he said.
Asked by this reporter about the timing of the Defense Minister’s announcement and apology, Watt said, “Maybe they finally want to make a clean breast of it.”
In a related development, newly-confirmed CIA Director Leon Panetta said Wednesday that President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will ensure they are not tortured or abused.
"If it's someone we are interested in, there is no purpose to rendering anyone, particularly if it's a high-value target," Panetta said.
Panetta added that he believes prisoners should only be handed over to countries that have a legitimate legal interest in them, such as their home country or a country where charges are pending against them.
Panetta seemed to be trying to distance himself from statements he made during his congressional confirmation hearing earlier this month. He told lawmakers that the Obama administration intended to continue rendering prisoners captured in the war on terrorism.
Panetta said the administration would rely on a long-standing policy to first secure “diplomatic assurances” from the country that the prisoner would not be tortured or have his human rights violated. But human rights groups point out that such assurances have proved to be virtually worthless in the past, when suspects have been flown to countries with egregious human rights records.
Panetta said the Obama administration would "make very sure" that prisoners are not mistreated after they are rendered. Asked by the Associated Press exactly how that would be done, Panetta said, "Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that," he said. "No. 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen."
The White House is currently reviewing the extraordinary rendition policy and program.
Panetta said he does not believe additional prisoners will be sent to Guantanamo this year. In his first week in office, Obama ordered the prison closed within a year, but no decision has yet been made public on what to do with the roughly 250 inmates still there. Only a handful have been charged with a crime, and those trials have been suspended while the Obama administration reviews its legal options.
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