By William Fisher
With their principles firmly focused on the 2010 elections, and juicy campaign contributions from the so-called health care industry, Republicans and some potentially endangered Democrats are furiously fulminating about “socialized medicine” and government bureaucrats who will “ration your health care” and “get between you and your doctor.”
Can Harry and Louise be far behind?
Well, government is not the only place where bureaucrats work. They are ubiquitous in those wonderful companies we pay to bring us our health insurance policies.
They aren’t big on “socialized medicine” – though not even economists dispute that universal health care is a social good.
But they’re regularly rewarded for rationing your health care and getting between you and your doctor.
Consider this mini-chamber of horrors, culled from a recent and highly dramatic House hearing chaired by Rep. Henry Waxman of California.
Robin Beaton, 59, found out last June she had an aggressive form of breast cancer and needed surgery -- immediately. But just days before her double mastectomy, she found out that her insurance provider would not cover the procedure. (In the industry, they call it “rescission.”) Why rescission? ?
In May 2008, Beaton had visited a dermatologist for acne. A word written on her chart was interpreted to mean precancerous, so the insurance company decided to launch an investigation into her medical history.
Beaton's dermatologist begged her insurance provider to go ahead with the surgery.
"He said, 'This is a misunderstanding. This is not precancerous. All she has is acne.” Still, the insurance carrier decided to rescind her coverage. The company said it had reviewed her medical records and found out that she had misinformed them about some of her medical history.
Beaton had listed her weight incorrectly. She also didn't disclose medication she had taken for a pre-existing heart condition -- medicine she wasn't taking when she originally applied for coverage.
Another witness, Wittney Horton, said her coverage was canceled after her carrier said she did not disclose that she had taken a drug prescribed for weight loss and because of her irregular menstrual cycle. Her carrier sent her a letter saying they would not have accepted her had they known she had "polycystic ovaries," a condition she did not know she had.
And Peggy Raddatz testified on behalf of her late brother, who was diagnosed with stage four non-Hodgkin's type lymphoma. In the midst of his chemotherapy treatment, his coverage was cancelled and he was not able to receive the stem cell transplant needed to save his life.
Raddatz's brother was told his coverage was canceled for failing to disclose that, unknown to him, a doctor had once noted in his file that a CT scan showed a small aneurysm and some insignificant gallstones.
These are but a few of the thousands of people who thought their premiums entitled them to be treated. And if you think these are extraordinary cases, consider this:
Blue Cross of California, a subsidiary of WellPoint, encouraged employees through performance evaluations to cancel the health insurance policies of individuals with expensive illnesses. One Blue Cross employee earned a perfect score of "5" for "exceptional performance" on an evaluation that noted the employee's role in dropping thousands of policyholders and avoiding nearly $10 million worth of medical care.
Blue Cross of California and two other insurers saved more than $300 million in medical claims by canceling more than 20,000 sick policyholders over a five-year period.
(Note to media watchers: When CNN reported this hearing, it conveniently ignored an inconvenient truth: the names of the errant insurers. Thanks to Karen Tumulty of TIME, we now know who they are: Wittney Horton and Robin Beaton were insured by Blue Cross. Peggy Raddatz’s brother, Otto, was insured by Fortis Insurance Company. Also, this riveting hearing got no airtime on the TV networks, nor did it appear in The New York Times or The Washington Post.)
At the risk of inviting my own “recission,” I invite you to examine my own health insurance history. I have several chronic ailments. But, over the last 15 years, Medicare – yes, that awful “socialized medicine” plan – has never denied me the treatment I needed. Ditto my Medigap insurance, purchased through AARP.
Bureaucrats abound in both the public and private sectors, and Lord knows, Medicare has more than its share of warts (is that a pre-existing condition?).
But, given my druthers, I’ll choose what’s now being called the public option.
It’s worth remembering that, through our votes and our letters and phone calls to our representatives in Congress, we have at least a fair shot at managing the public bureaucrats. The private sector is accountable only to the bottom line and the great invisible hand of the market.
Maybe you’d like to let the market perform your next surgery?
Tuesday, June 23, 2009
Monday, June 22, 2009
Obama: Whither Transparency?
By William Fisher
Human rights and open-government advocates were heartened by President Barack Obama’s pledge during his first week in office to create “an unprecedented level of openness in Government” and “establish a system of transparency, public participation, and collaboration.”
But now, well into Obama’s second 100 days in office, many are expressing outrage and disappointment that many of the president’s decisions have followed the path of his predecessor, President George W. Bush.
The Obama administration has invoked the "state secrets" privilege several times to prevent lawsuits dealing with “extraordinary renditions” and warrantless wiretapping from ever being heard in court. Department of Justice (DOJ) lawyers have argued that detainees at Bagram Air Force base in Afghanistan have no right to challenge their detention.
The government has also caved to Democrats and Republicans in Congress to keep any of the Guantanamo Bay detainees from ever entering the U.S., even though the Defense Department (DOD) has cleared these men for release and declared that they present no threat to U.S. national security. Reliable reports suggest that Obama is considering “indefinite detention” for GITMO detainees who cannot be tried in U.S. courts because the evidence against them was obtained through torture. The government has gone to court to appeal a court ruling ordering the release of a 2004 report from the Inspector General of the Central Intelligence Agency (CIA) describing the harsh treatment of prisoners in the agency’s secret prisons. And the new president has refused to make public photographs reportedly depicting abusive interrogations at these and other government detention centers.
Obama recently rejected a Freedom of Information Act (FOIA) request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies because the disclosure of such records might impinge on privileged "presidential communications."
On the issue of electronic surveillance, the new president has not repudiated the Bush-era executive orders supporting warrantless wiretapping and the legal opinions used to support them. Obama has resisted a “truth commission” to investigate former officials who allegedly broke the law and committed crimes, saying he would rather look forward than back.
Government lawyers asked a federal judge to dismiss a lawsuit brought on behalf of a couple who were placed on a terrorist watch list. And when watchdog group Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request to the Justice Department seeking records related to former vice president Dick Cheney's interview with the Federal Bureau of Investigation (FBI) in the “outing” of CIA operative Valerie Plame, the Justice Department declined to turn over the records.
Our interviews with human rights and open-government advocates produced few explanations of the president’s actions, beyond calls for him to live up to his promises.
But a few have offered insights as to the “why” of what they see as Obama’s U-Turn. Among them is Professor Francis A. Boyle of the University of Illinois law school. He told IPS, “After winning the Democratic Party against Senator Clinton by appealing to its progressive wing, Obama immediately veered far to the right and co-opted all of the Clinton people into his campaign and then administration. So what we are seeing now is a Third Clinton Term with a continuation of many of the same foreign and domestic policies pursued by the Bush Jr. administration.”
He added, “This has little to do with personnel and personalities. It has to do structurally with the preservation and further extension of the American Empire abroad that necessarily requires the further consolidation of an American Police State at home. Hence the Obama administration has continued to ratify the illegal and unconstitutional policies of the Bush administration in court cases across the board, while escalating the Bush admistration's imperialist intervention into Afghanistan and now expanding it into Pakistan.”
Another explanation came from Michael Ratner, president of the Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to represent Guantanamo prisoners.
He asked rhetorically in response to an IPS reporter’s question,
“Why did Obama make promises about less secrecy, transparency and a narrowed state secrets privilege and proceed to have his administration assert positions and back legislation that was directly contrary to those promises? In the U.S., we complain about Chile hiding the crimes of the Pinochet regime, or Germany hiding the Nazi crimes or Russia the crimes of the KGB, yet where is the screaming when President Obama hides the war crimes of the Bush administration?”
His answer: “In part, the recent blatant assertions of secrecy are to hide crimes of former and some current officials. That is why President Obama is keeping the torture photos hidden. That is why he is continuing to assert broad state secret claims to try and hide the rendition program. That is why the 2004 CIA report on the secret site interrogations will be released with heavy redactions. Not only would the photos and documents implicate the Bushies, but remember some of those abuses were apparently committed by units under the command of the recently appointed commander in Afghanistan, General (Stanley) McChrystal. Some of the crimes were allegedly approved or committed by the current Deputy Director of the CIA, Stephen Kappes, who is keeping his job.”
“Release of the torture and abuse information and especially the photos would put incredible pressure on President Obama to actually hold accountable the torture team. This is not something he wants to do. He wants to ‘move on’, but he will never be able to ‘look forward’ to the future without torture until and unless the perpetrators of torture are punished,” he declared.
Chip Pitts of the Bill of Rights Defense Committee offers another perspective. He told IPS, ““There are undoubtedly elements of truth in each of the theories – or excuses – I’ve imagined or heard for the president’s broken January promise.”
“But the hedging and retaining litigation and other exceptions, instead of restoring the full presumption of transparency and openness in interpreting FOIA, are as disappointing as the hedging and retaining exceptions on other core planks of the rule of law, such as the prohibition on torture, military commissions, preventive detention, and maintaining ubiquitous surveillance.”
He added, “The free information flows and social networking technologies in the Iranian protests are only the latest indication of transparency’s new historical power. Obama himself recognized in that context the new meaning for Martin Luther King’s injunction that “the arc of the moral universe is long, but bends toward justice.”
“Obama would be better-advised to be on the right side of that history than on the side of darkness and cover-up,” he said.
A more hopeful note comes from Peter M Shane, a law professor at Ohio State University. He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”
But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”
How the new administration will ultimately resolve its conflicts between secrecy and open government remains to be seen. But, as President Obama said over the weekend in relation to the current Iranian conflict, “the world is watching.”
Human rights and open-government advocates were heartened by President Barack Obama’s pledge during his first week in office to create “an unprecedented level of openness in Government” and “establish a system of transparency, public participation, and collaboration.”
But now, well into Obama’s second 100 days in office, many are expressing outrage and disappointment that many of the president’s decisions have followed the path of his predecessor, President George W. Bush.
The Obama administration has invoked the "state secrets" privilege several times to prevent lawsuits dealing with “extraordinary renditions” and warrantless wiretapping from ever being heard in court. Department of Justice (DOJ) lawyers have argued that detainees at Bagram Air Force base in Afghanistan have no right to challenge their detention.
The government has also caved to Democrats and Republicans in Congress to keep any of the Guantanamo Bay detainees from ever entering the U.S., even though the Defense Department (DOD) has cleared these men for release and declared that they present no threat to U.S. national security. Reliable reports suggest that Obama is considering “indefinite detention” for GITMO detainees who cannot be tried in U.S. courts because the evidence against them was obtained through torture. The government has gone to court to appeal a court ruling ordering the release of a 2004 report from the Inspector General of the Central Intelligence Agency (CIA) describing the harsh treatment of prisoners in the agency’s secret prisons. And the new president has refused to make public photographs reportedly depicting abusive interrogations at these and other government detention centers.
Obama recently rejected a Freedom of Information Act (FOIA) request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies because the disclosure of such records might impinge on privileged "presidential communications."
On the issue of electronic surveillance, the new president has not repudiated the Bush-era executive orders supporting warrantless wiretapping and the legal opinions used to support them. Obama has resisted a “truth commission” to investigate former officials who allegedly broke the law and committed crimes, saying he would rather look forward than back.
Government lawyers asked a federal judge to dismiss a lawsuit brought on behalf of a couple who were placed on a terrorist watch list. And when watchdog group Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request to the Justice Department seeking records related to former vice president Dick Cheney's interview with the Federal Bureau of Investigation (FBI) in the “outing” of CIA operative Valerie Plame, the Justice Department declined to turn over the records.
Our interviews with human rights and open-government advocates produced few explanations of the president’s actions, beyond calls for him to live up to his promises.
But a few have offered insights as to the “why” of what they see as Obama’s U-Turn. Among them is Professor Francis A. Boyle of the University of Illinois law school. He told IPS, “After winning the Democratic Party against Senator Clinton by appealing to its progressive wing, Obama immediately veered far to the right and co-opted all of the Clinton people into his campaign and then administration. So what we are seeing now is a Third Clinton Term with a continuation of many of the same foreign and domestic policies pursued by the Bush Jr. administration.”
He added, “This has little to do with personnel and personalities. It has to do structurally with the preservation and further extension of the American Empire abroad that necessarily requires the further consolidation of an American Police State at home. Hence the Obama administration has continued to ratify the illegal and unconstitutional policies of the Bush administration in court cases across the board, while escalating the Bush admistration's imperialist intervention into Afghanistan and now expanding it into Pakistan.”
Another explanation came from Michael Ratner, president of the Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to represent Guantanamo prisoners.
He asked rhetorically in response to an IPS reporter’s question,
“Why did Obama make promises about less secrecy, transparency and a narrowed state secrets privilege and proceed to have his administration assert positions and back legislation that was directly contrary to those promises? In the U.S., we complain about Chile hiding the crimes of the Pinochet regime, or Germany hiding the Nazi crimes or Russia the crimes of the KGB, yet where is the screaming when President Obama hides the war crimes of the Bush administration?”
His answer: “In part, the recent blatant assertions of secrecy are to hide crimes of former and some current officials. That is why President Obama is keeping the torture photos hidden. That is why he is continuing to assert broad state secret claims to try and hide the rendition program. That is why the 2004 CIA report on the secret site interrogations will be released with heavy redactions. Not only would the photos and documents implicate the Bushies, but remember some of those abuses were apparently committed by units under the command of the recently appointed commander in Afghanistan, General (Stanley) McChrystal. Some of the crimes were allegedly approved or committed by the current Deputy Director of the CIA, Stephen Kappes, who is keeping his job.”
“Release of the torture and abuse information and especially the photos would put incredible pressure on President Obama to actually hold accountable the torture team. This is not something he wants to do. He wants to ‘move on’, but he will never be able to ‘look forward’ to the future without torture until and unless the perpetrators of torture are punished,” he declared.
Chip Pitts of the Bill of Rights Defense Committee offers another perspective. He told IPS, ““There are undoubtedly elements of truth in each of the theories – or excuses – I’ve imagined or heard for the president’s broken January promise.”
“But the hedging and retaining litigation and other exceptions, instead of restoring the full presumption of transparency and openness in interpreting FOIA, are as disappointing as the hedging and retaining exceptions on other core planks of the rule of law, such as the prohibition on torture, military commissions, preventive detention, and maintaining ubiquitous surveillance.”
He added, “The free information flows and social networking technologies in the Iranian protests are only the latest indication of transparency’s new historical power. Obama himself recognized in that context the new meaning for Martin Luther King’s injunction that “the arc of the moral universe is long, but bends toward justice.”
“Obama would be better-advised to be on the right side of that history than on the side of darkness and cover-up,” he said.
A more hopeful note comes from Peter M Shane, a law professor at Ohio State University. He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”
But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”
How the new administration will ultimately resolve its conflicts between secrecy and open government remains to be seen. But, as President Obama said over the weekend in relation to the current Iranian conflict, “the world is watching.”
Thursday, June 18, 2009
A ‘Must Read’ for the Book Czar
By William Fisher
Since the Obama Administration now has czars for cars, information technology, bonuses, financial products, et cetera, can a book czar be far behind?
Well, here’s a memo for the inbox of our book czar (or czarina) to-be. It’s about a slender volume that I want our new book czar/czarina to mandate as a “must read’ for every American from middle school to grad school and way beyond.
The book is titled “Madison’s Nightmare: How Executive Power Threatens American Democracy.” Its author is Peter M. Shane, a law professor at Ohio State University.
Understanding why Madison is having nightmares is a tall order for a country where a large majority of citizens is unable to name the three branches of their government. Where we are clueless about separation of powers. And about checks and balances. And where courses we once used to call Civics are now landfill in our academic graveyards.
But if we care about the future of America, we all need to understand what’s been happening to our unique form of government over the past decades.
Peter Shane writes in compelling non-lawyerish commonsense prose about how ambitious assertions of presidential power are the logical outcome of a decades-long trend that started with Ronald Reagan and George H.W. Bush, continued under Bill Clinton, and culminated most spectacularly under the “unitary executive” doctrine embraced by the George W. Bush administration.
What Shane calls “aggressive presidentialism” has seen presidents of both parties waging an assault on the basic checks and balances of the U.S. government that has diminished the role of the other branches of government – all too often with their supine acquiescence -- and led to ideological, inappropriate, and sometimes downright illegal actions.
Prof. Shane tells us why this trend is giving James Madison such nightmares. He writes: “At the heart of our founders’ design for a new republican form of government is a web of political institutions structured to hold each other accountable.” One-branch governmnent holds only one branch accountable – and accountable only to itself.
“Time and time again,” Shane writes, “it has become evident that presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously.”
And even those of us who may be historically challenged can see the results of that disastrous behavior in the wreckage that currently litters our constitutional landscape.
“If we want our government to work as the Founders intended, simply electing a new president is not enough: both liberals and conservatives must launch a wide-ranging reform effort that will change all levels of government and support a renewed culture of accountability.”
Prof. Shane finished writing this book before Barack Obama’s first day in the Oval Office. But in a more recent article – “The Ambivalent Presidency? Executive Power Under the Obama Administration” – he tells us where he thinks our new president stands in relation to his predecessors.
He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”
But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”
He writes:“Though he campaigned on a theme of change, in his first months in office, Barack Obama has already asserted inherent presidential power in ways reminiscent of his Republican predecessors. While abandoning some of the Bush Administration’s more audacious claims, President Obama has asserted the state secrets privilege in national security litigation, resisted judicial review of enemy combatant detention in Afghanistan, issued signing statements suggesting constitutional reservations about bills he has signed into law, and pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.”
On the other hand, he notes, “President Obama revoked President Bush’s obnoxious executive order on presidential records, which seemed to invent the idea of vice-presidential privilege from whole cloth and purported to allow family members of former Presidents to claim privilege in their name. He implicitly revoked the Bush Administration’s restrictive view of the Freedom of Information Act, and famously released Bush-era OLC memoranda on torture. The Obama order on military interrogations reasserts the applicability of congressional restrictions to the conduct and conditions of military detention.”
But he also senses Obama’s ambivalence. For example, he writes, “Within his first two weeks in office, President Obama pointedly revoked two Bush Administration executive orders that tightened White House oversight of regulatory policy making by executive branch agencies. In March, however, OMB Director Peter Orszag issued a memorandum reclaiming much of the authority the Obama order seemed to repudiate.”
And On March 9, “President Obama issued a presidential memorandum pledging restraint in the use of so-called signing statements. Within weeks, he issued two such statements of his own.”
But despite these moments of ambivalence, Shane writes, he remains “hopeful that the Obama Administration will turn its back with increasing clarity on the theory and practice of the ‘unitary presidency’.”
If that happens, Madison’s Nightmare – and ours -- may be over.
Let us read!
Since the Obama Administration now has czars for cars, information technology, bonuses, financial products, et cetera, can a book czar be far behind?
Well, here’s a memo for the inbox of our book czar (or czarina) to-be. It’s about a slender volume that I want our new book czar/czarina to mandate as a “must read’ for every American from middle school to grad school and way beyond.
The book is titled “Madison’s Nightmare: How Executive Power Threatens American Democracy.” Its author is Peter M. Shane, a law professor at Ohio State University.
Understanding why Madison is having nightmares is a tall order for a country where a large majority of citizens is unable to name the three branches of their government. Where we are clueless about separation of powers. And about checks and balances. And where courses we once used to call Civics are now landfill in our academic graveyards.
But if we care about the future of America, we all need to understand what’s been happening to our unique form of government over the past decades.
Peter Shane writes in compelling non-lawyerish commonsense prose about how ambitious assertions of presidential power are the logical outcome of a decades-long trend that started with Ronald Reagan and George H.W. Bush, continued under Bill Clinton, and culminated most spectacularly under the “unitary executive” doctrine embraced by the George W. Bush administration.
What Shane calls “aggressive presidentialism” has seen presidents of both parties waging an assault on the basic checks and balances of the U.S. government that has diminished the role of the other branches of government – all too often with their supine acquiescence -- and led to ideological, inappropriate, and sometimes downright illegal actions.
Prof. Shane tells us why this trend is giving James Madison such nightmares. He writes: “At the heart of our founders’ design for a new republican form of government is a web of political institutions structured to hold each other accountable.” One-branch governmnent holds only one branch accountable – and accountable only to itself.
“Time and time again,” Shane writes, “it has become evident that presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously.”
And even those of us who may be historically challenged can see the results of that disastrous behavior in the wreckage that currently litters our constitutional landscape.
“If we want our government to work as the Founders intended, simply electing a new president is not enough: both liberals and conservatives must launch a wide-ranging reform effort that will change all levels of government and support a renewed culture of accountability.”
Prof. Shane finished writing this book before Barack Obama’s first day in the Oval Office. But in a more recent article – “The Ambivalent Presidency? Executive Power Under the Obama Administration” – he tells us where he thinks our new president stands in relation to his predecessors.
He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”
But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”
He writes:“Though he campaigned on a theme of change, in his first months in office, Barack Obama has already asserted inherent presidential power in ways reminiscent of his Republican predecessors. While abandoning some of the Bush Administration’s more audacious claims, President Obama has asserted the state secrets privilege in national security litigation, resisted judicial review of enemy combatant detention in Afghanistan, issued signing statements suggesting constitutional reservations about bills he has signed into law, and pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.”
On the other hand, he notes, “President Obama revoked President Bush’s obnoxious executive order on presidential records, which seemed to invent the idea of vice-presidential privilege from whole cloth and purported to allow family members of former Presidents to claim privilege in their name. He implicitly revoked the Bush Administration’s restrictive view of the Freedom of Information Act, and famously released Bush-era OLC memoranda on torture. The Obama order on military interrogations reasserts the applicability of congressional restrictions to the conduct and conditions of military detention.”
But he also senses Obama’s ambivalence. For example, he writes, “Within his first two weeks in office, President Obama pointedly revoked two Bush Administration executive orders that tightened White House oversight of regulatory policy making by executive branch agencies. In March, however, OMB Director Peter Orszag issued a memorandum reclaiming much of the authority the Obama order seemed to repudiate.”
And On March 9, “President Obama issued a presidential memorandum pledging restraint in the use of so-called signing statements. Within weeks, he issued two such statements of his own.”
But despite these moments of ambivalence, Shane writes, he remains “hopeful that the Obama Administration will turn its back with increasing clarity on the theory and practice of the ‘unitary presidency’.”
If that happens, Madison’s Nightmare – and ours -- may be over.
Let us read!
Monday, June 01, 2009
Obama DOJ Channeling Bush
By William Fisher
Despite President Barack Obama’s formation of a new task force to review government secrecy, and an ongoing investigation into use of the so-called “state secrets doctrine,” lawyers for the new Administration refused last week to disclose information on the government’s use of warrantless wiretaps and backed legislation to block the release of photos of prisoner abuse in Iraq and Afghanistan.
Last week, Obama announced the formation of a task force to review government classification policies, proposing the creation of a National Declassification Center to facilitate public disclosure of once-secret information.
The president reaffirmed his commitment " to operating with an unprecedented level of openness."
But the next day, Department of Justice (DOJ) lawyers filed notice of the government’s intention to challenge in the Supreme Court a New York federal appeals court ruling ordering the administration to make public the photographs allegedly depicting the abuse of terrorism suspects in U.S. custody.
The American Civil Liberties Union (ACLU) had filed a Freedom of Information Act (FOIA) suit to force their disclosure. A federal court judge agreed and ordered the government to release the photos. President Obama initially indicated he would comply with the court’s order but later changed his mind, saying that release of the photos might risk the lives of U.S. armed forces personnel.
At the same time, the DOJ told the court that a formal appeal by a June 9 deadline could be unnecessary if Congress quickly passes the Detainee Photographic Records Protection Act of 2009.
That measure is supported by the White House and was passed by the Senate on May 2. It would forbid disclosure of photographs taken between Sept. 11, 2001, and Jan. 22, 2009, "relating to the treatment of individuals engaged, captured, or detained after September 11, 2001,” by U.S. Armed Forces in operations outside the U.S. if “the defense secretary and the chairman of the Joint Chiefs of Staff have determined would endanger military personnel if released.”
Earlier this year Obama Attorney General Eric Holder rescinded Bush-era FOIA guidelines and replaced them with new rules to preserve FOIA's purpose of making public important information about the workings of the government.
In the wiretapping case, lawyers for a now-defunct Saudi charity claim they were victims of electronic spying by the government. A federal judge ordered the Obama administration to disclose documents relating to that charge The wiretapping allegedly took place as part of the so-called “terrorist surveillance program,” which was initiated by President George W. Bush following the 2001 terrorist attacks.
The DOJ, responding to a federal judge’s inquiry into whether the administration should be sanctioned for “failing to obey the court’s orders,” refused to turn over the documents and asked the court for permission to appeal its decision.
It urged the court to permit appellate review over the fundamental and significant separation of powers questions presented before any disclosure or risk of disclosure in further proceedings,” Anthony Coppolino, the DOJ’s special litigation counsel, wrote to Federal Circuit Court Judge Vaughn Walker.
A DOJ spokesman said sanctions were unwarranted because only the government can decide whether to disclose documents it believes are state secrets.
The lawsuit was brought in San Francisco by two American lawyers who claim their telephone calls were illegally intercepted by the National Security Agency (NSA) under the Bush administration. The lawyers represent the Al-Haramain Islamic Foundation, a charity that the Treasury Department claims was linked to terrorism.
Jon Eisenberg, the attorney for the two American lawyers, told Judge Walker at the time that the purpose of the lawsuit was to “obtain an adjudication of the legality of President George W. Bush’s warrantless electronic surveillance program and, more broadly, the Bush administration’s expansive theories of presidential power.”
Bush claimed that his war powers gave him the authority to eavesdrop on Americans’ electronic communications without warrants.
Eisenberg told us, “The DOJ attorneys repeat all the same arguments that Judge Walker has already rejected. They're treating Judge Walker as if he were irrelevant.”
The San Francisco lawsuit began when the government accidentally sent the plaintiffs documents that showed their overseas communications with Al-Haramain officials were intercepted without warrants. The pair sued, but was forced to return the documents because they were marked “top secret.”
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. 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 Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
Al-Haramain’s lawyers 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.
Al-Haramain lawyer Eisenberg told us, “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.”
“In three years of litigating this case,” Eisenberg added, 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.
Obama has ordered a DOJ task force to study the government’s use of the state secrets privilege. The Administration of George W. Bush invoked the privilege more than any other government in U.S. history.
In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons without first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the NSA 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."
Despite President Barack Obama’s formation of a new task force to review government secrecy, and an ongoing investigation into use of the so-called “state secrets doctrine,” lawyers for the new Administration refused last week to disclose information on the government’s use of warrantless wiretaps and backed legislation to block the release of photos of prisoner abuse in Iraq and Afghanistan.
Last week, Obama announced the formation of a task force to review government classification policies, proposing the creation of a National Declassification Center to facilitate public disclosure of once-secret information.
The president reaffirmed his commitment " to operating with an unprecedented level of openness."
But the next day, Department of Justice (DOJ) lawyers filed notice of the government’s intention to challenge in the Supreme Court a New York federal appeals court ruling ordering the administration to make public the photographs allegedly depicting the abuse of terrorism suspects in U.S. custody.
The American Civil Liberties Union (ACLU) had filed a Freedom of Information Act (FOIA) suit to force their disclosure. A federal court judge agreed and ordered the government to release the photos. President Obama initially indicated he would comply with the court’s order but later changed his mind, saying that release of the photos might risk the lives of U.S. armed forces personnel.
At the same time, the DOJ told the court that a formal appeal by a June 9 deadline could be unnecessary if Congress quickly passes the Detainee Photographic Records Protection Act of 2009.
That measure is supported by the White House and was passed by the Senate on May 2. It would forbid disclosure of photographs taken between Sept. 11, 2001, and Jan. 22, 2009, "relating to the treatment of individuals engaged, captured, or detained after September 11, 2001,” by U.S. Armed Forces in operations outside the U.S. if “the defense secretary and the chairman of the Joint Chiefs of Staff have determined would endanger military personnel if released.”
Earlier this year Obama Attorney General Eric Holder rescinded Bush-era FOIA guidelines and replaced them with new rules to preserve FOIA's purpose of making public important information about the workings of the government.
In the wiretapping case, lawyers for a now-defunct Saudi charity claim they were victims of electronic spying by the government. A federal judge ordered the Obama administration to disclose documents relating to that charge The wiretapping allegedly took place as part of the so-called “terrorist surveillance program,” which was initiated by President George W. Bush following the 2001 terrorist attacks.
The DOJ, responding to a federal judge’s inquiry into whether the administration should be sanctioned for “failing to obey the court’s orders,” refused to turn over the documents and asked the court for permission to appeal its decision.
It urged the court to permit appellate review over the fundamental and significant separation of powers questions presented before any disclosure or risk of disclosure in further proceedings,” Anthony Coppolino, the DOJ’s special litigation counsel, wrote to Federal Circuit Court Judge Vaughn Walker.
A DOJ spokesman said sanctions were unwarranted because only the government can decide whether to disclose documents it believes are state secrets.
The lawsuit was brought in San Francisco by two American lawyers who claim their telephone calls were illegally intercepted by the National Security Agency (NSA) under the Bush administration. The lawyers represent the Al-Haramain Islamic Foundation, a charity that the Treasury Department claims was linked to terrorism.
Jon Eisenberg, the attorney for the two American lawyers, told Judge Walker at the time that the purpose of the lawsuit was to “obtain an adjudication of the legality of President George W. Bush’s warrantless electronic surveillance program and, more broadly, the Bush administration’s expansive theories of presidential power.”
Bush claimed that his war powers gave him the authority to eavesdrop on Americans’ electronic communications without warrants.
Eisenberg told us, “The DOJ attorneys repeat all the same arguments that Judge Walker has already rejected. They're treating Judge Walker as if he were irrelevant.”
The San Francisco lawsuit began when the government accidentally sent the plaintiffs documents that showed their overseas communications with Al-Haramain officials were intercepted without warrants. The pair sued, but was forced to return the documents because they were marked “top secret.”
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. 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 Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
Al-Haramain’s lawyers 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.
Al-Haramain lawyer Eisenberg told us, “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.”
“In three years of litigating this case,” Eisenberg added, 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.
Obama has ordered a DOJ task force to study the government’s use of the state secrets privilege. The Administration of George W. Bush invoked the privilege more than any other government in U.S. history.
In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons without first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the NSA 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."
Friday, May 29, 2009
Mr. Common Law’s Next Adventure
By William Fisher
I know, I know. Now that President Obama has chosen a nominee for the Supreme Court, I’m supposed to be writing about Sonia Sotomayor.
I will, I will.
But before he disappears into the flinty wilderness of the rural New Hampshire he loves so dearly, let me first say a few words about David Souter.
My few words are about his few words.
He spoke his few words at a recent seminar at Georgetown University on the independence of the judiciary, one of a series convened by retired Supreme Court Justice Sandra Day O'Connor.
His few words were on a subject rarely covered in any depth by the mainstream media, but one whose importance to the future of our country cannot be over-stated.
Souter spoke of the spectacular ignorance of the American electorate about the government they select people to serve in. And the consequences of that ignorance.
The Republic "can be lost, it is being lost, it is lost, if it is not understood," Souter said, citing surveys showing that large majorities of the public cannot name the three branches of government. Or who don’t even know there are three branches of government.
Souter’s trepidation has been borne out by dozens of other embarrassing surveys over recent years. Virtually every one of them has concluded that our young people know virtually nothing – and are being taught virtually nothing – about the way the country they live in is organized and governed. And these results are as true for college grads as they are for middle school youngsters.
For example, in one survey, fifty percent of Americans famously were able to name four characters from “The Simpsons,” but only two out of five were able to name all three branches of our federal government. And no more than one in seven could find Iraq on a map.
In his best-selling book, “Just How Stupid Are We?” author Rick Shenkman writes that such uninformed voters are misusing, abusing, and abdicating their political power. He argues that we must reform ourselves before we can begin to reassert that power.
The paradox here is that, over the past half century, the U.S. population has seen huge increases in their formal educational achievements. Yet their levels of political knowledge have remained static. The result is that today's college graduates know no more about politics than high school graduates knew back in 1950.
I find it unfortunate that our poor test scores relative to young people in other countries are usually lamented only in terms of our under-achievements in science, math and technology.
There is no argument that these subjects are critical to America’s ability to compete in the increasingly globalized environment of the future. But education is about a lot more than competing. It is about learning. And if are young people are content with being uninformed, they will surely get the country they’ve asked for.
Many observers – including me – were mightily heartened by the record-breaking participation of young voters during the 2008 Presidential campaign. But I have a nagging feeling that many of them were excited and moved to action by the personality, rhetoric and compelling life narrative of Barack Obama.
That kind of enthusiasm won’t teach them much about our country and its institutions, but it’s a start. Taking the next step will involve restoring Civics 101 to our educational agenda. Even if we have to choose it over football.
Justice Souter is painfully aware of that imperative. He said we have to start with the “reeducation of a substantial part of the American population." What is needed, he added, is "the restoration of the self-identity of the American people."
At 69, Souter has little patience for talking the talk. He is more about walking the walk. And, as if to provide all of us with a real life example, he has joined a committee sponsored by the New Hampshire Supreme Court Society that is dedicated to developing a civic education curriculum for New Hampshire's public school classrooms.
When he parts with the Supremes at the end of the current term, Souter plans to return to his hometown of Weare, New Hampshire. In retirement, we should not be at all surprised to find this most down-to-earth common-sense judge teaching that new course in Civics 101.
"If I can do it, you can do it too," Souter told his audience.
Yes, we can!
I know, I know. Now that President Obama has chosen a nominee for the Supreme Court, I’m supposed to be writing about Sonia Sotomayor.
I will, I will.
But before he disappears into the flinty wilderness of the rural New Hampshire he loves so dearly, let me first say a few words about David Souter.
My few words are about his few words.
He spoke his few words at a recent seminar at Georgetown University on the independence of the judiciary, one of a series convened by retired Supreme Court Justice Sandra Day O'Connor.
His few words were on a subject rarely covered in any depth by the mainstream media, but one whose importance to the future of our country cannot be over-stated.
Souter spoke of the spectacular ignorance of the American electorate about the government they select people to serve in. And the consequences of that ignorance.
The Republic "can be lost, it is being lost, it is lost, if it is not understood," Souter said, citing surveys showing that large majorities of the public cannot name the three branches of government. Or who don’t even know there are three branches of government.
Souter’s trepidation has been borne out by dozens of other embarrassing surveys over recent years. Virtually every one of them has concluded that our young people know virtually nothing – and are being taught virtually nothing – about the way the country they live in is organized and governed. And these results are as true for college grads as they are for middle school youngsters.
For example, in one survey, fifty percent of Americans famously were able to name four characters from “The Simpsons,” but only two out of five were able to name all three branches of our federal government. And no more than one in seven could find Iraq on a map.
In his best-selling book, “Just How Stupid Are We?” author Rick Shenkman writes that such uninformed voters are misusing, abusing, and abdicating their political power. He argues that we must reform ourselves before we can begin to reassert that power.
The paradox here is that, over the past half century, the U.S. population has seen huge increases in their formal educational achievements. Yet their levels of political knowledge have remained static. The result is that today's college graduates know no more about politics than high school graduates knew back in 1950.
I find it unfortunate that our poor test scores relative to young people in other countries are usually lamented only in terms of our under-achievements in science, math and technology.
There is no argument that these subjects are critical to America’s ability to compete in the increasingly globalized environment of the future. But education is about a lot more than competing. It is about learning. And if are young people are content with being uninformed, they will surely get the country they’ve asked for.
Many observers – including me – were mightily heartened by the record-breaking participation of young voters during the 2008 Presidential campaign. But I have a nagging feeling that many of them were excited and moved to action by the personality, rhetoric and compelling life narrative of Barack Obama.
That kind of enthusiasm won’t teach them much about our country and its institutions, but it’s a start. Taking the next step will involve restoring Civics 101 to our educational agenda. Even if we have to choose it over football.
Justice Souter is painfully aware of that imperative. He said we have to start with the “reeducation of a substantial part of the American population." What is needed, he added, is "the restoration of the self-identity of the American people."
At 69, Souter has little patience for talking the talk. He is more about walking the walk. And, as if to provide all of us with a real life example, he has joined a committee sponsored by the New Hampshire Supreme Court Society that is dedicated to developing a civic education curriculum for New Hampshire's public school classrooms.
When he parts with the Supremes at the end of the current term, Souter plans to return to his hometown of Weare, New Hampshire. In retirement, we should not be at all surprised to find this most down-to-earth common-sense judge teaching that new course in Civics 101.
"If I can do it, you can do it too," Souter told his audience.
Yes, we can!
Sunday, May 24, 2009
Shhhhhh…It’s Still a (State) Secret
By William Fisher
“My Administration is also confronting challenges to what is known as the ‘State Secrets’ privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents - Republican and Democrat - for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government.”
Thus spoke President Obama in his national security speech last week.
Which makes an odd coincidence ever odder. The odder coincidence is that in the same week as the President was arguing for more transparency in government and railing against the idea of protecting information “merely because it reveals the violation of a law or embarrasses the government” – he was invoking it yet again.
In a bid to squelch a U.K. court case involving alleged British complicity with the CIA in the rendition, imprisonment and torture of a British resident, the Foreign Office presented a letter urging continuing secrecy from – yes, you guessed it -- the Obama Administration.
From an ‘unnamed official’ in the Obama Administration.
The Foreign Office refused to disclose to the British High Court judges who the letter was from or to whom it was written, to say nothing of its contents, which were heavily redacted. The Foreign Office refused to explain why. They simply said their reasons for secrecy must also remain suppressed.
Here’s the back-story:
In 2002, an Ethiopian citizen and British resident named Binyam Mohamed became one of the CIA’s “frequent flyers.” He was arrested in Pakistan, allegedly stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.
Then he was allegedly once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured. He was eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo.
Mohamed was released from GITMO in February 2009, while he was on a hunger strike. He claims he was offered his freedom earlier if he agreed to confess to terror-related crimes. He refused.
He is currently attempting to sue the British Government, and specifically its intelligence service, MI5, for being complicit with the CIA in helping to facilitate his rendition.
When Mohamed’s case first came to the British courts, British Foreign Secretary David Miliband said the U.S. threatened to stop sharing intelligence with the Brits if details of the case were to be disclosed. He later denied there was any such threat.
But by this time, the case had caused a firestorm in Britain, with the Loyal Opposition accusing the government of doing a great job of living up to its caricature of being America’s poodle.
The British High Court judges were equally outraged. They said the refusal by U.S. to disclose evidence that could prove a British resident held at Guantánamo Bay was tortured was"deeply disturbing."
The court said there was "no rational basis" for the American failure to reveal the contents of documents essential to the Mohamed’s defense.
In a particularly damning passage, Lord Justice Thomas and Justice Lloyd Jones said the documents provided the "only independent evidence" capable of helping Mohamed and his defence. Suppressing the material "would be to deny him the opportunity of timely justice in respect of the charges against him," which was a principle dating back to "at least the time of Magna Carta and which is a basic part of our common law and of democratic values."
The Court ordered the British Government to turn over 42 documents, which it has thus far largely failed to do. When Mohamed’s lawyer, Clive Stafford Smith, pressed the issue by going back to Court for another hearing, Miliband’s lawyers continued to oppose disclosing any documents that might reveal the extent of U.K. government complicity in Mohamed’s treatment.
There will be another hearing in about a month, at which time the judges will finally decide whether Mohamed’s suit can go forward.
Stafford Smith says, “This official secrecy is becoming increasingly ridiculous, and way out of line with what the public expects from their democratically elected government.”
“The British people rightly expect to be able hold their government accountable for any wrongdoing, and this deliberate secrecy is preventing them from doing that. If this letter truly represents the view of the Obama Administration, why not reveal the author? Why are both governments so afraid of basic transparency in this matter?”
Why indeed?
The back-story gets even more complicated.
In 2007, the American Civil Liberties Union filed a lawsuit in the U.S. on behalf of five men, including Mohamed, who claimed they were victims of rendition, torture and imprisonment without charge.
The suit charged that a company known as Jeppesen Dataplan, a Boeing subsidiary, helped the CIA to facilitate the renditions by providing it with support and logistical services. It charged that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to CIA aircraft and crews.
Lawyers for the Bush Administration intervened in the case in 2007, invoking the so-called “state secrets privilege.” It argued that the suit could not go forward because it would involve presenting evidence that would compromise U.S. national security. The court agreed, and halted the suit.
The case bounced around on appeal until 2008, when the Ninth Circuit Court of Appeals heard arguments for and against going forward with the suit. Human rights advocates were shocked when Obama Justice Department lawyers declined to change the Bush-era position and followed the same road as its predecessor.
But the appeals court disagreed. In what may yet become a landmark decision, the judges finally ruled that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, not to dismiss an entire suit.
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.
Following the Appeals Court decision, Ben Wizner, a staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs, told me, "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court.”
The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the U.S. government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.
Meanwhile, as the Binyam Mohamed fire continues to burn out of control in the U.K., the Obama Administration is nearing completion of its review of use of the State Secrets practice. Obama says, “I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.”
The importance of telling us – and the British High Court – took on added significance yesterday, thanks to a Sunday New York Times piece by Eric Schmitt and Mark Mazzetti desribing how the U. S. is now relying heavily on foreign intelligence services to capture, interrogate and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan.
Obama continues to insist that “we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable.”
Well, I would say the Binyam Mohamed story is about as uncomfortable as it gets. It’s time for the President to fess up. That will be change we can believe in.
“My Administration is also confronting challenges to what is known as the ‘State Secrets’ privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents - Republican and Democrat - for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government.”
Thus spoke President Obama in his national security speech last week.
Which makes an odd coincidence ever odder. The odder coincidence is that in the same week as the President was arguing for more transparency in government and railing against the idea of protecting information “merely because it reveals the violation of a law or embarrasses the government” – he was invoking it yet again.
In a bid to squelch a U.K. court case involving alleged British complicity with the CIA in the rendition, imprisonment and torture of a British resident, the Foreign Office presented a letter urging continuing secrecy from – yes, you guessed it -- the Obama Administration.
From an ‘unnamed official’ in the Obama Administration.
The Foreign Office refused to disclose to the British High Court judges who the letter was from or to whom it was written, to say nothing of its contents, which were heavily redacted. The Foreign Office refused to explain why. They simply said their reasons for secrecy must also remain suppressed.
Here’s the back-story:
In 2002, an Ethiopian citizen and British resident named Binyam Mohamed became one of the CIA’s “frequent flyers.” He was arrested in Pakistan, allegedly stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.
Then he was allegedly once again blindfolded, stripped, and shackled by CIA agents and flown to a secret U.S. detention facility in Afghanistan, where he was again tortured. He was eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo.
Mohamed was released from GITMO in February 2009, while he was on a hunger strike. He claims he was offered his freedom earlier if he agreed to confess to terror-related crimes. He refused.
He is currently attempting to sue the British Government, and specifically its intelligence service, MI5, for being complicit with the CIA in helping to facilitate his rendition.
When Mohamed’s case first came to the British courts, British Foreign Secretary David Miliband said the U.S. threatened to stop sharing intelligence with the Brits if details of the case were to be disclosed. He later denied there was any such threat.
But by this time, the case had caused a firestorm in Britain, with the Loyal Opposition accusing the government of doing a great job of living up to its caricature of being America’s poodle.
The British High Court judges were equally outraged. They said the refusal by U.S. to disclose evidence that could prove a British resident held at Guantánamo Bay was tortured was"deeply disturbing."
The court said there was "no rational basis" for the American failure to reveal the contents of documents essential to the Mohamed’s defense.
In a particularly damning passage, Lord Justice Thomas and Justice Lloyd Jones said the documents provided the "only independent evidence" capable of helping Mohamed and his defence. Suppressing the material "would be to deny him the opportunity of timely justice in respect of the charges against him," which was a principle dating back to "at least the time of Magna Carta and which is a basic part of our common law and of democratic values."
The Court ordered the British Government to turn over 42 documents, which it has thus far largely failed to do. When Mohamed’s lawyer, Clive Stafford Smith, pressed the issue by going back to Court for another hearing, Miliband’s lawyers continued to oppose disclosing any documents that might reveal the extent of U.K. government complicity in Mohamed’s treatment.
There will be another hearing in about a month, at which time the judges will finally decide whether Mohamed’s suit can go forward.
Stafford Smith says, “This official secrecy is becoming increasingly ridiculous, and way out of line with what the public expects from their democratically elected government.”
“The British people rightly expect to be able hold their government accountable for any wrongdoing, and this deliberate secrecy is preventing them from doing that. If this letter truly represents the view of the Obama Administration, why not reveal the author? Why are both governments so afraid of basic transparency in this matter?”
Why indeed?
The back-story gets even more complicated.
In 2007, the American Civil Liberties Union filed a lawsuit in the U.S. on behalf of five men, including Mohamed, who claimed they were victims of rendition, torture and imprisonment without charge.
The suit charged that a company known as Jeppesen Dataplan, a Boeing subsidiary, helped the CIA to facilitate the renditions by providing it with support and logistical services. It charged that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to CIA aircraft and crews.
Lawyers for the Bush Administration intervened in the case in 2007, invoking the so-called “state secrets privilege.” It argued that the suit could not go forward because it would involve presenting evidence that would compromise U.S. national security. The court agreed, and halted the suit.
The case bounced around on appeal until 2008, when the Ninth Circuit Court of Appeals heard arguments for and against going forward with the suit. Human rights advocates were shocked when Obama Justice Department lawyers declined to change the Bush-era position and followed the same road as its predecessor.
But the appeals court disagreed. In what may yet become a landmark decision, the judges finally ruled that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, not to dismiss an entire suit.
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake,” adding that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
The three-judge appeals court panel ruled unanimously that the government could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case.
Following the Appeals Court decision, Ben Wizner, a staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs, told me, "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court.”
The Obama Administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.
If the case goes to trial, the government can still argue that disclosing anything about Jeppesen's relationship with the U.S. government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.
Meanwhile, as the Binyam Mohamed fire continues to burn out of control in the U.K., the Obama Administration is nearing completion of its review of use of the State Secrets practice. Obama says, “I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.”
The importance of telling us – and the British High Court – took on added significance yesterday, thanks to a Sunday New York Times piece by Eric Schmitt and Mark Mazzetti desribing how the U. S. is now relying heavily on foreign intelligence services to capture, interrogate and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan.
Obama continues to insist that “we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable.”
Well, I would say the Binyam Mohamed story is about as uncomfortable as it gets. It’s time for the President to fess up. That will be change we can believe in.
Friday, May 22, 2009
A Tale of Two Tales
By William Fisher
President Barack Obama cautiously minced his way yesterday through a political minefield filled with imminent explosions from human rights advocates, national security hawks, and a Congress terrified by the potential political backlash of any move to bring Guantanamo Bay prisoners to the U.S. for trial or detention.
The President defended his decisions to close the iconic naval base in Cuba, halt “enhanced” interrogation practices, and complete a case-by-case review of Guantanamo detainees to determine how to treat each one.
Obama’s remarks came against the backdrop of a major bipartisan revolt in Congress, which has refused to appropriate funds for the closing of Guantanamo until the president assures members that no terrorists will be “released in our neighborhoods” and presents them with a detailed plan for closing the Caribbean prison facility.
Obama spoke in a setting designed to underline traditional U.S. beliefs in the rule of law: The National Archives, which houses the Declaration of Independence, the Bill of Rights, and the Constitution.
Almost immediately following Obama’s speech, in another Washington venue a few minutes away, former vice president Dick Cheney delivered a speech at the conservative American Enterprise Institute, where he uncompromisingly defended the detention, interrogation and national security policies adopted by the George W. Bush Administration. Cheney criticized the Obama Administration for policy decisions that are making America less safe.
While the Obama speech was light on details, he outlined five categories of Guantanamo detainees his administration is attempting to deal with: those who can be tried in Federal courts; those who have violated the laws of war and should be prosecuted before “improved” Military Commissions; those who have been cleared of wrongdoing ordered released; those who can safely be transferred to other countries; and – most contentiously – those can not be prosecuted in either civilian or military courts but who are deemed to present clear threats to U.S. national security, and thus must remain in custody.
It is particularly the latter category that has caused the Congressional blowback, as well as criticism from both the human rights and conservative communities. Obama said that, unlike his predecessors, his team was attempting to craft a legitimate legal framework for this category of prisoners, including judicial and congressional oversight.
He termed as “irrational” the Congressional and public fear regarding bringing Guantanamo detainees to the U.S. for trial, imprisonment or release.
“This is fodder for 30-second commercials designed to frighten the American people,” he said, vowing never the put the safety of the American people at risk.
The Senate on Wednesday voted 90 to 6 to block funding for the shutdown of Guantanamo and to bar the transfer of detainees to the United States and its territories. The six voting against the measure were all Democrats.
Conservative Senator John Thune, Republican of South Dakota, summed up much of the Congressional opposition to Obama’s funding request. “The American people don’t want these men walking the streets of America’s neighborhoods,” he said, adding, “The American people don’t want these detainees held at a military base or federal prison in their back yard, either.”
But the “not in my backyard” chorus was also joined by leading Congressional Democrats. Senator Harry Reid, the Senate Democratic majority leader from Nevada, vowed that Congress “will never’’ allow detainees from the prison to be released on American soil.
But Michele A. Flournoy, the under secretary of Defense for policy, said “I think there will be some that need to end up in the United States. I think this is a case where we need to ask members of Congress to take a more strategic view.’’
The fear of releasing Guantanamo detainees into the U.S. was stoked Wednesday by Congressional testimony from Robert Mueller, director of the Federal Bureau of Investigation (FBI). He told the House Judiciary Committee he was concerned about Guantanamo detainees being transferred to U.S. prisons.
"The concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing, radicalizing others," Mueller said, as well as "the potential for individuals undertaking attacks in the United States." He also said there were also potential risks to putting detainees in maximum security prisons.
The reactions from leaders of human rights organizations – with many of whom Obama met earlier this week – was predictable.
Tom Malinowski, Washington advocacy director of Human Rights Watch, said his organization thought that suspects who must be detained for long periods should be tried in the U.S.
"The more we try to create something new, the greater the risk of challenge and defeat," he said. "In the short term, it may be easier to detain potentially dangerous people if you design a system specifically for that purpose. But in the longer term, the risk of having to release those people is greater because the system could collapse."
Michael Ratner, president of the Center for Constitutional Rights,
said, "The president wrapped himself in the Constitution and then proceeded to violate it by announcing he would send people before irredeemably flawed military commissions and seek to create a preventive detention scheme that only serves to move Guantanamo to a new location and give it a new name."
Anthony Romero, executive director of the American Civil Liberties Union, said his organization and others will fight Obama in court, and are angry that he and other Democrats have allowed themselves to fall victim to what critics consider Republican "fear-mongering" about bringing accused terrorists to US soil.
He said, "We welcome President Obama's stated commitment to the Constitution, the rule of law and the unequivocal rejection of torture. But unlike the president, we believe that continuing with the failed military commissions and creating a new system of indefinite detention without charge is inconsistent with the values that he expressed so eloquently at the National Archives today."
“President Obama is absolutely right to emphasize that ignoring our values undermines rather than enhances America’s security,” said Kenneth Roth, executive director of Human Rights Watch. “But allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration’s abusive approach to fighting terrorism.”
Other civil libertarians were equally outspoken.
"The president is going to have to spend political capital; he will have to lean on people and call out the political cowards," said John D. Hutson, a retired Navy admiral and judge advocate general who advised Obama on detention policy during his presidential campaign. "He is going to have to regain the high ground and the initiative. He had the initiative and it slipped away."
Professor Francis A. Boyle of the University of Illinois law school, told us, “There are extremely complicated and important issues of U.S. Constitutional Law, international law, human rights and civil liberties at stake here. And yet Members of Congress are more interested in grand-standing for votes and scare-mongering the American people than resolving them fairly and equitably and in accordance with principle.”
“What needs to be understood by our policymakers is that Guantanamo doesn't make us safer but in fact is counterproductive in fighting terrorism," Prof. Brian Foley of Boston University law school told us.
Opposition to Obama’s plan was strengthened by disclosure of an unreleased Pentagon report that concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.
Past Pentagon reports on Guantánamo recidivism have been met with skepticism from civil liberties groups and criticized for their lack of detail.
In two related developments:
A federal judge ruled Tuesday night that the president can continue to hold some prisoners at Guantanamo Bay indefinitely without them being charged. Judge John Bates curbed the Obama administration's definition of who can be held, but ruled that Congress in the days after Sept. 11, 2001 gave the president the authority to hold anyone involved in planning, aiding or carrying out the terrorist attacks.
An administration official said that for the first time, a Guantanamo detainee is being sent to the U.S. to stand trial in a criminal court. Ahmed Khalfan Ghailani, a Tanzanian captured in Pakistan in 2004, had been indicted by a federal grand jury in New York on allegations that he took part in attacks on two U.S. embassies in Africa in 1998.
President Barack Obama cautiously minced his way yesterday through a political minefield filled with imminent explosions from human rights advocates, national security hawks, and a Congress terrified by the potential political backlash of any move to bring Guantanamo Bay prisoners to the U.S. for trial or detention.
The President defended his decisions to close the iconic naval base in Cuba, halt “enhanced” interrogation practices, and complete a case-by-case review of Guantanamo detainees to determine how to treat each one.
Obama’s remarks came against the backdrop of a major bipartisan revolt in Congress, which has refused to appropriate funds for the closing of Guantanamo until the president assures members that no terrorists will be “released in our neighborhoods” and presents them with a detailed plan for closing the Caribbean prison facility.
Obama spoke in a setting designed to underline traditional U.S. beliefs in the rule of law: The National Archives, which houses the Declaration of Independence, the Bill of Rights, and the Constitution.
Almost immediately following Obama’s speech, in another Washington venue a few minutes away, former vice president Dick Cheney delivered a speech at the conservative American Enterprise Institute, where he uncompromisingly defended the detention, interrogation and national security policies adopted by the George W. Bush Administration. Cheney criticized the Obama Administration for policy decisions that are making America less safe.
While the Obama speech was light on details, he outlined five categories of Guantanamo detainees his administration is attempting to deal with: those who can be tried in Federal courts; those who have violated the laws of war and should be prosecuted before “improved” Military Commissions; those who have been cleared of wrongdoing ordered released; those who can safely be transferred to other countries; and – most contentiously – those can not be prosecuted in either civilian or military courts but who are deemed to present clear threats to U.S. national security, and thus must remain in custody.
It is particularly the latter category that has caused the Congressional blowback, as well as criticism from both the human rights and conservative communities. Obama said that, unlike his predecessors, his team was attempting to craft a legitimate legal framework for this category of prisoners, including judicial and congressional oversight.
He termed as “irrational” the Congressional and public fear regarding bringing Guantanamo detainees to the U.S. for trial, imprisonment or release.
“This is fodder for 30-second commercials designed to frighten the American people,” he said, vowing never the put the safety of the American people at risk.
The Senate on Wednesday voted 90 to 6 to block funding for the shutdown of Guantanamo and to bar the transfer of detainees to the United States and its territories. The six voting against the measure were all Democrats.
Conservative Senator John Thune, Republican of South Dakota, summed up much of the Congressional opposition to Obama’s funding request. “The American people don’t want these men walking the streets of America’s neighborhoods,” he said, adding, “The American people don’t want these detainees held at a military base or federal prison in their back yard, either.”
But the “not in my backyard” chorus was also joined by leading Congressional Democrats. Senator Harry Reid, the Senate Democratic majority leader from Nevada, vowed that Congress “will never’’ allow detainees from the prison to be released on American soil.
But Michele A. Flournoy, the under secretary of Defense for policy, said “I think there will be some that need to end up in the United States. I think this is a case where we need to ask members of Congress to take a more strategic view.’’
The fear of releasing Guantanamo detainees into the U.S. was stoked Wednesday by Congressional testimony from Robert Mueller, director of the Federal Bureau of Investigation (FBI). He told the House Judiciary Committee he was concerned about Guantanamo detainees being transferred to U.S. prisons.
"The concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing, radicalizing others," Mueller said, as well as "the potential for individuals undertaking attacks in the United States." He also said there were also potential risks to putting detainees in maximum security prisons.
The reactions from leaders of human rights organizations – with many of whom Obama met earlier this week – was predictable.
Tom Malinowski, Washington advocacy director of Human Rights Watch, said his organization thought that suspects who must be detained for long periods should be tried in the U.S.
"The more we try to create something new, the greater the risk of challenge and defeat," he said. "In the short term, it may be easier to detain potentially dangerous people if you design a system specifically for that purpose. But in the longer term, the risk of having to release those people is greater because the system could collapse."
Michael Ratner, president of the Center for Constitutional Rights,
said, "The president wrapped himself in the Constitution and then proceeded to violate it by announcing he would send people before irredeemably flawed military commissions and seek to create a preventive detention scheme that only serves to move Guantanamo to a new location and give it a new name."
Anthony Romero, executive director of the American Civil Liberties Union, said his organization and others will fight Obama in court, and are angry that he and other Democrats have allowed themselves to fall victim to what critics consider Republican "fear-mongering" about bringing accused terrorists to US soil.
He said, "We welcome President Obama's stated commitment to the Constitution, the rule of law and the unequivocal rejection of torture. But unlike the president, we believe that continuing with the failed military commissions and creating a new system of indefinite detention without charge is inconsistent with the values that he expressed so eloquently at the National Archives today."
“President Obama is absolutely right to emphasize that ignoring our values undermines rather than enhances America’s security,” said Kenneth Roth, executive director of Human Rights Watch. “But allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration’s abusive approach to fighting terrorism.”
Other civil libertarians were equally outspoken.
"The president is going to have to spend political capital; he will have to lean on people and call out the political cowards," said John D. Hutson, a retired Navy admiral and judge advocate general who advised Obama on detention policy during his presidential campaign. "He is going to have to regain the high ground and the initiative. He had the initiative and it slipped away."
Professor Francis A. Boyle of the University of Illinois law school, told us, “There are extremely complicated and important issues of U.S. Constitutional Law, international law, human rights and civil liberties at stake here. And yet Members of Congress are more interested in grand-standing for votes and scare-mongering the American people than resolving them fairly and equitably and in accordance with principle.”
“What needs to be understood by our policymakers is that Guantanamo doesn't make us safer but in fact is counterproductive in fighting terrorism," Prof. Brian Foley of Boston University law school told us.
Opposition to Obama’s plan was strengthened by disclosure of an unreleased Pentagon report that concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.
Past Pentagon reports on Guantánamo recidivism have been met with skepticism from civil liberties groups and criticized for their lack of detail.
In two related developments:
A federal judge ruled Tuesday night that the president can continue to hold some prisoners at Guantanamo Bay indefinitely without them being charged. Judge John Bates curbed the Obama administration's definition of who can be held, but ruled that Congress in the days after Sept. 11, 2001 gave the president the authority to hold anyone involved in planning, aiding or carrying out the terrorist attacks.
An administration official said that for the first time, a Guantanamo detainee is being sent to the U.S. to stand trial in a criminal court. Ahmed Khalfan Ghailani, a Tanzanian captured in Pakistan in 2004, had been indicted by a federal grand jury in New York on allegations that he took part in attacks on two U.S. embassies in Africa in 1998.
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