David Frakt is a professor at the Western State University College of Law and a Lt. Col. in the U.S. Air Force Reserve JAG Corps. He is widely known
for his defense of former Guantanamo detainee Mohammed Jawad, an alleged “unlawful enemy combatant” who previously faced charges in the U.S. military commissions for events alleged to have taken place when he was a minor in December 2002. In July 2009, Professor Frakt became the first defense counsel to win the dismissal of military commission charges that had been referred to trial and won Mr. Jawad’s release through a successful petition for a writ of habeas corpus. Mr. Jawad returned home to Afghanistan in August 2009.
Professor Frakt was also lead defense counsel in one of just two military commission trials held during the Bush Administration. A recognized expert on the law of war and military commissions, Professor Frakt also recently testified before Congress about proposed reforms to the military commission and has been a guest lecturer at Harvard Law School, Duke Law School, NYU Law School, Loyola Law School, and The Wharton School of Business, among other institutions. He frequently appears at conferences and participates in debates with other leading experts on legal issues surrounding detention, interrogation and counterterrorism.
Professor Frakt has written extensively about military commissions and other issues related to Guantanamo detainees, and is frequently asked to comment on current events surrounding detainees and terrorism in the popular media.
Professor Frakt is also a contributor to the Torture Report, an online publication of the ACLU National Security Project and has appeared repeatedly on MSNBC, CNN and on National Public Radio. He is featured in the recent book, The Guantanamo Lawyers: Inside a Prison Outside the Law.
Here, Prof. Frakt talks with IPS’s William Fisher.
IPS. Since the court’s ruling in Boumediene, 44 habeas corpus petitions have been decided in Federal court in Washington DC. Of these, 33 have been granted and 11 have been denied. Most of these petitions were, in fact, filed well before the Boumediene ruling. Lawyers representing GITMO detainees say dozens of additional petitions are in the pipeline. It may be reasonable to assume that outcomes in future habeas hearings will not be materially different from past decisions. Even where the judges have granted the petitions, in several cases the detainees have not been released because of the government’s inability to find other countries willing to accept former detainees. On what basis can the government continue to hold these people indefinitely or until a country is found to accept them?
DF. There is no lawful basis to continue to incarcerate these individuals. If no other country is willing to take them, then they should be released into the United States. The problem is the political unwillingness to allow any former detainees into the U.S., even those determined to be completely innocent and wrongfully held. Our unwillingness to accept any detainees for resettlement in the U.S. is also the biggest stumbling block to convincing our allies to accept released detainees. Why should they solve our problems when we are unwilling to be part of the solution?
IPS. Why is there a category of prisoners deemed “too dangerous to free” and “too dangerous to try ?
DF: Neither the Bush Administration nor the Obama Administration has ever specified who is in this category or why they were placed there, although the Obama Administration announced that they believe as many as 50 individuals are in this category. One possibility is that the primary evidence that these individuals are dangerous was derived through coercive interrogations that would likely be inadmissible in court. Given the inherent reliability of coerced interrogations, it is very troubling that we would consider holding someone forever primarily on that basis.
IPS. Why would some detainees be tried before Military Commissions and others in federal court before a civilian jury? What determines which venue is to be used?
DF: The Attorney General has produced a list of factors to be considered in making this determination but has not indicated which factors cut which way. There does not appear to be any principled basis for making this distinction. It looks as if those cases that the US Attorneys want and think they can prove in federal court are going to federal court, and other cases are going to military commissions, making it appear that military commissions are a second-class justice system. As the controversy over the location of the alleged 9/11 co-conspirators’ trial indicates, political factors also appear to be a significant consideration.
IPS. Could anything further be done to improve military commissions to the point where they would be acceptable venues for trials? What are the principal shortcomings of the Commissions?
DF: The military commissions are supposed to be a forum to try offenses under the law of war, but several non-war crimes that don’t belong in military commissions are also authorized to be tried in military commissions, including material support to terrorism, conspiracy, and terrorism.
The vast majority of detainees to be charged so far have been charged with these non-war crimes, which more properly belong in federal court. Military commissions also have no age limit, allowing juveniles like Omar Khadr to be tried as war criminals for acts done when they were 15 years old.
The rules of evidence allowing coerced evidence to be admitted have been significantly improved, so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from coerced confessions is still admissible.
Another major shortcoming is the lack of any preliminary hearing or grand jury proceeding to screen out meritless charges, such as exists in federal court and in courts-martial. The rules of the military commission also unfairly exclude qualified defense lawyers who are not U.S. citizens from serving as defense counsel for detainees. Another problem is that there are no precedents to guide military commissions. They are a completely untested system and the rules are basically made up as the cases move along. This creates too many opportunities for challenges and appeals that cause interminable delays.
The victims of 9/11 and other terrorist attacks have waited long enough for justice, as have the detainees, most of whom have been incarcerated without trial for seven or eight years now. Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad. Although military commissions procedures have been substantially improved, they are still flawed and still lack legitimacy in the international community.
IPS: What is your reaction to Liz Cheney's attack on Justice Department attorneys who represented or advocated on behalf of detainees while they were in private practice during the prior administration? Her advocacy group, “Keep America Safe” even went so far as to call these lawyers, "the al Qaeda seven."
DF: This unwarranted attack by the fringe-right is particularly repugnant. The idea that we should question the patriotism and values of attorneys who volunteered to represent detainees has been widely repudiated by most mainstream conservatives, including a large group of prominent conservative lawyers. This smear campaign by Liz Cheney, sustained in the popular media by Andrew McCarthy of the National Review and Marc Thiessen of the Washington Post is based on several false premises.
First, they are implying that an attorney who represents an unpopular individual or an unpopular cause shares the viewpoint of that individual or cause. This is nonsense.
Second, by constantly referring to the detainees as “terrorist detainees” or “Al Qaeda detainees” they are conveniently overlooking the fact that the vast majority of Guantanamo detainees have proven to be innocent of any ties to terrorism. That’s why the Bush Administration let two-thirds of the detainees go and had cleared dozens more for release even before President Obama assumed office.
Third, they overlook the fact that the detainee litigation was predominantly a fight over three issues: whether detainees are entitled to be treated humanely; whether detainees are entitled to be informed of the basis for their detention and given a meaningful opportunity to challenge the basis for their detention in a real court; and whether detainees charged with crimes are entitled to a fair trial that conforms with Constitutional requirements and the international law of war. Thus, the detainee litigation was about American values, not about terrorist values.
Finally, these attacks conveniently ignore the fact that the U.S. Supreme Court sided with the lawyers representing the detainees every single time. These volunteer lawyers deserve great credit for helping to restore the rule of law in this country and for undoing some of the damage wrought by the Bush Administration.
Tuesday, March 16, 2010
Wednesday, March 10, 2010
EGYPT: Same Old, Same Old, But Worse
By William Fisher
Despite diplomatic maneuvering designed to block any review of its human rights record, a United Nations special rapporteur has told the UN Human Rights Council that proposed changes in Egypt’s constitution “would create a permanent legal state of emergency.”
The report of Martin Scheinin, the UN Special Rapporteur Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, said Egypt’s Emergency Law is often applied in situations where there is no link to terrorist activities, such as the frequent arbitrary detention of political activists and bloggers and the repeated use of military courts and state security courts in politically motivated cases.
The Special Rapporteur also emphasized that, when combined with the pending counter-terrorism law, Article 179 of the Egyptian Constitution as amended in March 2007 would create a permanent legal state of emergency.
That law grants the police absolute powers in the area of arrests, allows the police to monitor private conversations, and would allow the Egyptian president to deny those accused of terrorism access to the ordinary judiciary and to refer them to extraordinary military courts.
The UN report is the first issued by the main human rights body of the United Nations that deals exclusively with the human rights situation in Egypt. Representatives from the Egyptian Initiative for Personal Rights and the Cairo Institute for Human Rights Studies attended the session in Geneva as observers and delivered oral interventions in which they supported the report’s recommendations and urged the government to implement them immediately.
In his report, based on a mission to Egypt in April 2009, Scheinin
highlighted that administrative detention orders repealed by the judiciary in
Egypt are often “renewed immediately upon a person’s release or, in the worst case, just ignored through unacknowledged detention until a new order of official administrative detention is obtained.”
That was the case in the contemporaneous trial of Ahmed Mustafa, a 20-year-old civilian engineering student who was arrested and, for the first time, brought to trial in a military court charged with blogging false information about the army and insulting officers involved in recruitment at a military academy. He was accused of writing a single blog post more than a year earlier. The post told the story of a student allegedly forced to resign from a military academy in order to leave room for another applicant amid accusations of nepotism.
Apparently bowing to pressure from the United Nations and international human rights groups, and after several delays, the military court unexpectedly released Mustafa, who promised to apologize and take his web posting down.
Moataz El Fegiery, the Executive Director of the Cairo Institute for Human Rights Studies (CIHRS), told IPS he believes pressure from Egyptian and international human rights groups, plus the UN report, played a major role in the court’s decision to release Mustafa.
The Egyptian Government’s harassment and prosecution of bloggers has become more intense in recent years. A number of bloggers have been convicted and sentenced to prison. Many others are regularly harassed and intimidated by police before being released.
Earlier, as part of its review before the UN Human Rights Council, Egypt stood before governments from around the world and either rejected or failed to commit to important human rights reforms.
Key rights recommendations that were rejected include: to "allow independent national and international election monitoring in upcoming elections;" "end the state of emergency and abstain from legislation that introduces measures of the Emergency Law into the Constitution;" "release bloggers and human rights defenders detained under emergency laws" and "ensure that NGO activities and activities of human rights defenders not be inhibited or their ability to raise funds be impeded."
But Egypt did accept proposals from Pakistan and Sudan to "speed up" the adoption of Emergency Laws within its Constitution in the form of "anti-terrorism laws."
"While the government of Egypt accepted a number of important recommendations, it did not commit to some of the most important ones," said El Fegiery. "Nonetheless, the fact that Egypt committed to some reform in front of the world is a small victory for human rights defenders in Egypt,." he added.
Important recommendations accepted by Egypt include: ensuring that the definition of torture in Egyptian law conforms with the Convention Against Torture and that the government will "increase efforts" to combat torture; the repeal of laws that allow for imprisonment of journalists for exercising their right to freedom of expression; to continue to promote the political participation of women including in the judiciary; to not use Emergency laws against journalists and bloggers; to ensure the full observance of the Declaration on Human Rights Defenders; and to enable human rights organizations to monitor elections.
According to CIHRS, Egypt had earlier attempted to ensure that no meaningful review of its human rights record took place by getting other states, mostly from the Arab region, to take the floor and offer only praise during its review. The attempt failed in large part because the Coalition of Egyptian NGOs lobbied states both in Cairo and in Geneva to take the floor during the review and give substantial recommendations that could be monitored and followed up on.
El Fegiery said, “Today the Special Rapporteur confirmed what human rights defenders have been warning about for several years: the proposed counter-terrorism law in Egypt is an attempt by the government to normalize the state of emergency and undermine the constitutional protection of fundamental rights.”
He recalled that during the presentation of the report by the Special Rapporteur, Egypt denied all of its substantial observations by claiming that the Emergency Law does not suspend or limit ordinary laws or judicial oversight despite clear legal clauses that do precisely this.
”Egyptian officials did everything they could to limit the scope of the Special Rapporteur’s mission: they barred him from visiting prisons and interviewing detainees and refused to let him observe any terrorism trials or meet with families of victims and detainees” said Hossam Bahgat, Executive Director of the Egyptian Initiative for Personal Rights. “But the facts are clear, and the mission report provides the most damning assessment of systemic human rights abuses committed in the name of security since 1981.”
The Cairo Institute for Human Rights Studies and the Egyptian Initiative for
Personal Rights urged Egypt to lift the State of Emergency, abolish the recently added Article 179 of the Constitution on combating terrorism, and to ensure that any existing and future anti-terrorism law complies with all international human rights standards.
The head of the Egyptian Association for Freedom of Thought and Expression (AFTE), Emad Mubarak, said that Egyptian authorities have been ramping up their pressure on political bloggers, especially after a few of them reported some of the ruling regime's human rights violations.
Egyptian emergency law allows military courts, which are presided over by an officer, to try civilians. The armed forces are extremely sensitive to criticism.
Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat.
Under the law, which has been continuously extended every three years since 1981, police powers are expanded, constitutional rights suspended and censorship legalized. The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.
Despite diplomatic maneuvering designed to block any review of its human rights record, a United Nations special rapporteur has told the UN Human Rights Council that proposed changes in Egypt’s constitution “would create a permanent legal state of emergency.”
The report of Martin Scheinin, the UN Special Rapporteur Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, said Egypt’s Emergency Law is often applied in situations where there is no link to terrorist activities, such as the frequent arbitrary detention of political activists and bloggers and the repeated use of military courts and state security courts in politically motivated cases.
The Special Rapporteur also emphasized that, when combined with the pending counter-terrorism law, Article 179 of the Egyptian Constitution as amended in March 2007 would create a permanent legal state of emergency.
That law grants the police absolute powers in the area of arrests, allows the police to monitor private conversations, and would allow the Egyptian president to deny those accused of terrorism access to the ordinary judiciary and to refer them to extraordinary military courts.
The UN report is the first issued by the main human rights body of the United Nations that deals exclusively with the human rights situation in Egypt. Representatives from the Egyptian Initiative for Personal Rights and the Cairo Institute for Human Rights Studies attended the session in Geneva as observers and delivered oral interventions in which they supported the report’s recommendations and urged the government to implement them immediately.
In his report, based on a mission to Egypt in April 2009, Scheinin
highlighted that administrative detention orders repealed by the judiciary in
Egypt are often “renewed immediately upon a person’s release or, in the worst case, just ignored through unacknowledged detention until a new order of official administrative detention is obtained.”
That was the case in the contemporaneous trial of Ahmed Mustafa, a 20-year-old civilian engineering student who was arrested and, for the first time, brought to trial in a military court charged with blogging false information about the army and insulting officers involved in recruitment at a military academy. He was accused of writing a single blog post more than a year earlier. The post told the story of a student allegedly forced to resign from a military academy in order to leave room for another applicant amid accusations of nepotism.
Apparently bowing to pressure from the United Nations and international human rights groups, and after several delays, the military court unexpectedly released Mustafa, who promised to apologize and take his web posting down.
Moataz El Fegiery, the Executive Director of the Cairo Institute for Human Rights Studies (CIHRS), told IPS he believes pressure from Egyptian and international human rights groups, plus the UN report, played a major role in the court’s decision to release Mustafa.
The Egyptian Government’s harassment and prosecution of bloggers has become more intense in recent years. A number of bloggers have been convicted and sentenced to prison. Many others are regularly harassed and intimidated by police before being released.
Earlier, as part of its review before the UN Human Rights Council, Egypt stood before governments from around the world and either rejected or failed to commit to important human rights reforms.
Key rights recommendations that were rejected include: to "allow independent national and international election monitoring in upcoming elections;" "end the state of emergency and abstain from legislation that introduces measures of the Emergency Law into the Constitution;" "release bloggers and human rights defenders detained under emergency laws" and "ensure that NGO activities and activities of human rights defenders not be inhibited or their ability to raise funds be impeded."
But Egypt did accept proposals from Pakistan and Sudan to "speed up" the adoption of Emergency Laws within its Constitution in the form of "anti-terrorism laws."
"While the government of Egypt accepted a number of important recommendations, it did not commit to some of the most important ones," said El Fegiery. "Nonetheless, the fact that Egypt committed to some reform in front of the world is a small victory for human rights defenders in Egypt,." he added.
Important recommendations accepted by Egypt include: ensuring that the definition of torture in Egyptian law conforms with the Convention Against Torture and that the government will "increase efforts" to combat torture; the repeal of laws that allow for imprisonment of journalists for exercising their right to freedom of expression; to continue to promote the political participation of women including in the judiciary; to not use Emergency laws against journalists and bloggers; to ensure the full observance of the Declaration on Human Rights Defenders; and to enable human rights organizations to monitor elections.
According to CIHRS, Egypt had earlier attempted to ensure that no meaningful review of its human rights record took place by getting other states, mostly from the Arab region, to take the floor and offer only praise during its review. The attempt failed in large part because the Coalition of Egyptian NGOs lobbied states both in Cairo and in Geneva to take the floor during the review and give substantial recommendations that could be monitored and followed up on.
El Fegiery said, “Today the Special Rapporteur confirmed what human rights defenders have been warning about for several years: the proposed counter-terrorism law in Egypt is an attempt by the government to normalize the state of emergency and undermine the constitutional protection of fundamental rights.”
He recalled that during the presentation of the report by the Special Rapporteur, Egypt denied all of its substantial observations by claiming that the Emergency Law does not suspend or limit ordinary laws or judicial oversight despite clear legal clauses that do precisely this.
”Egyptian officials did everything they could to limit the scope of the Special Rapporteur’s mission: they barred him from visiting prisons and interviewing detainees and refused to let him observe any terrorism trials or meet with families of victims and detainees” said Hossam Bahgat, Executive Director of the Egyptian Initiative for Personal Rights. “But the facts are clear, and the mission report provides the most damning assessment of systemic human rights abuses committed in the name of security since 1981.”
The Cairo Institute for Human Rights Studies and the Egyptian Initiative for
Personal Rights urged Egypt to lift the State of Emergency, abolish the recently added Article 179 of the Constitution on combating terrorism, and to ensure that any existing and future anti-terrorism law complies with all international human rights standards.
The head of the Egyptian Association for Freedom of Thought and Expression (AFTE), Emad Mubarak, said that Egyptian authorities have been ramping up their pressure on political bloggers, especially after a few of them reported some of the ruling regime's human rights violations.
Egyptian emergency law allows military courts, which are presided over by an officer, to try civilians. The armed forces are extremely sensitive to criticism.
Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat.
Under the law, which has been continuously extended every three years since 1981, police powers are expanded, constitutional rights suspended and censorship legalized. The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.
Tuesday, March 09, 2010
Happy Birthday, DHS -- Immigration Agencies Fall Short
By William Fisher
As the Department of Homeland Security celebrates its seventh anniversary, its immigration agencies are struggling to “create more humane ways to enforce broken laws” – but trying to enforce their way out of a broken immigration system is ultimately “a losing proposition.”
That was the conclusion reached in a new report on immigration that faulted the sprawling agency for “lack of transparency.”
The report, titled “DHS Progress Report: The Challenge of Reform,” was released by the Immigration Policy Center (IPC), the research and policy arm of the American Immigration Council. It attempts to measure DHS actions over the past year against recommendations made to the Obama Transition Team’s immigration-policy group.
The “Transition Blueprint,” produced by a wide range of immigration advocates, focused on “administrative improvements that would instill fairness, create efficiencies, and build support for comprehensive immigration reform in several key areas: due process, enforcement, detention, family immigration, naturalization, immigrant integration, and asylum.”
DHS’s seventh anniversary also corresponds to the due date set by Secretary Janet Napolitano for completion of a sweeping internal review of DHS. In her first full week on the job, Secretary Napolitano issued a directive instructing every agency to “thoroughly assess its current programs, resources, and efficiencies to identify areas in need of reform.”
The results of these reviews have not been made public, the report notes, “so it is impossible to determine whether a rigorous self-assessment took place, but the Department’s actions over the following year suggest that tinkering with the immigration enforcement regime rather than genuinely reforming it was the top priority of the Administration.”
A co-author of the report, Mary Giovagnoli, director of the IPC, told Truthout she believes DHS Secretary Napolitano and the people she has brought in to staff the immigration agencies “are professionals who are dedicated to improvement, but are trapped in a world of competing entrenched interests and laws that are popular with Congress but which don’t actually work.”
She praised officials at DHS’s immigration agencies for “their willingness to stay engaged” with the immigration advocacy community. However, she added, “By the end of the Bush Administration that community’s level of trust and confidence was so low that we always knew it was going to take time to rebuild.”
She recalled that after DHS’s founding in 2002, “It was so large that it took three or four years for the agency’s management to understand exactly what they had in the immigration field.”
Noting that 2009 “was largely about promises and aspirations,” she said, “Whether DHS can make good on these promises remains to be seen.”
However, she added, “That process has started.”
Ms. Giovagnoli served as an attorney with the Departments of Justice and Homeland Security -- serving first as a trial attorney and associate general counsel with the Immigration and Naturalization Service (INS), and, following the creation of the Department of Homeland Security, as an associate chief counsel for United States Citizenship and Immigration Services (USCIS). She was also awarded a Congressional Fellowship from USCIS to serve for a year in Senator Edward M. Kennedy’s office, where she worked on comprehensive immigration reform and refugee issues.
Her co-author, Royce Bernstein Murray, worked as Associate Counsel on the Refugee and Asylum Law Division in the USCIS Office of the Chief Counsel for five years during which time she advised a range of humanitarian immigration programs. Previously, she served as an Asylum Officer/Presidential Management Fellow for the INS Office of International Affairs.
The IPC report examines the DHS immigration apparatus – Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).
The examination reveals that DHS is struggling with the challenges of reform—both administrative and legislative—and “finds itself attempting to create more humane ways to enforce broken laws, which is ultimately a losing proposition.”
The report concludes that DHS “is still trying to enforce programs like Operation Streamline, “a program which requires mandatory criminal prosecutions of non-violent border crossers, clogs the federal court system and drains resources that could be used to prosecute more serious criminals. DHS is also expanding partnerships with state and local law enforcement agencies (Secure Communities and 287(g) programs) in their search for ‘criminal aliens.’ These programs often identify people with no criminal history and persons ‘identified’ but found not to be deportable.”
The report says that the first year under the administration of President Barack Obama “was both promising and frustrating.” It describes “a year where the promise of reform seems to fight daily with the dynamics of an entrenched belief in an enforcement driven culture. For every two steps forward, it seems that the Department takes one step backward, inching its way toward a more humane and just system.”
It cautions that the immigration system is “living on borrowed time,” adding,
“Without immigration reform that gives DHS the breathing room to do the right thing, annual reviews will increasingly be catalogs of more enforcement measures without corresponding opportunities for immigrants to make the kinds of contributions to our country that enrich us all.”
The report was particularly critical of DHS’s enforcement priorities, arrangements with local law enforcement agencies, and asylum and detention procedures.
It said, “While DHS professes to have re-focused its attention on non-compliant employers in the workplace and prosecuting non-citizens with serious criminal convictions, data indicates that employers and violent
criminals make up a small percentage of enforcement targets.”
ICE prioritized detention reform in 2009, specifically addressing issues of
oversight, alternatives to detention, healthcare, and parole. “While advocateshave welcomed these initiatives, they continue to look for meaningful
changes in the day-to-day management of facilities and decisions to detain,” the report said.
It noted that DHS has continued to expand its partnership with state and local law-enforcement agencies, particularly through the Secure Communities and 287(g) programs.
The Secure Communities and 287(g) programs enlist the help of local law enforcement agencies to apprehend and detain people suspected of being illegal aliens. The programs have been widely criticized by police chiefs and sheriffs throughout the country for diverting local resources into activities for which they are not trained and arresting and detaining people for petty offenses.
DHS claims these programs target “criminal aliens.” However, people identified by these programs “include large numbers of individuals with no criminal history, individuals charged (but not convicted) of crimes, and persons ‘identified’ but not found to be deportable.”
Due process is an area in which DHS has made little tangible progress, the report says. For example, “While the registration component of NSEERS, a special registration program targeted at men from predominantly Muslim countries, was suspended in 2003, applicants applying for benefits continue to be plagued by mistakes made during the registration process, affecting their ability to adjust status or naturalize.”
The immigration court system remains overburdened, access to counsel is limited, and a streamlined appeals process offers inadequate review for many claims, the report charges.
It says there is “no evidence of progress in implementing the U.S. Commission on Religious Freedom’s recommendations for improving the expedited removal system for asylum seekers. The resolution of cases involving “material support” (of terrorism) continue to face delays that keep legitimate asylum seekers from receiving protection.”
The report recommends that DHS should create an ICE Ombudsman to investigate complaints, monitor enforcement strategies, and recommend personnel actions in response to complaints.”
To improve the conditions of detainees, ICE “should hire a Senior Advisor on Detainee Health, as the agency announced it would do last August, to maximize the effectiveness of the detainee healthcare group meetings and development of a medical classification system.”
ICE has been severely criticized for operating a network of detention facilities that fail to meet even minimum health standards. There have been more than a dozen deaths in detention because of failure to provide timely medical assistance in emergencies. Detainees also complain that the facilities offer little or no due process, principally access to their lawyers. Detention also often takes place far from the place where the detainee was apprehended, making it difficult to access legal help, families and records.
To improve performance in the asylum area, the report recommends, the Department should “create a Refugee Protection Office that would report directly to the DHS Secretary or Deputy Secretary. Coordinated efforts would increase the ability of DHS to quickly resolve lingering disputes such as resolution on material support and implementation of proposals to improve expedited removal for asylum-seekers.”
While praising the DHS for a number of positive developments, the report finds that “the spirit of reform is often stymied by an over-reliance on existing enforcement policies.”
This article originally appeared in Truthout.org
As the Department of Homeland Security celebrates its seventh anniversary, its immigration agencies are struggling to “create more humane ways to enforce broken laws” – but trying to enforce their way out of a broken immigration system is ultimately “a losing proposition.”
That was the conclusion reached in a new report on immigration that faulted the sprawling agency for “lack of transparency.”
The report, titled “DHS Progress Report: The Challenge of Reform,” was released by the Immigration Policy Center (IPC), the research and policy arm of the American Immigration Council. It attempts to measure DHS actions over the past year against recommendations made to the Obama Transition Team’s immigration-policy group.
The “Transition Blueprint,” produced by a wide range of immigration advocates, focused on “administrative improvements that would instill fairness, create efficiencies, and build support for comprehensive immigration reform in several key areas: due process, enforcement, detention, family immigration, naturalization, immigrant integration, and asylum.”
DHS’s seventh anniversary also corresponds to the due date set by Secretary Janet Napolitano for completion of a sweeping internal review of DHS. In her first full week on the job, Secretary Napolitano issued a directive instructing every agency to “thoroughly assess its current programs, resources, and efficiencies to identify areas in need of reform.”
The results of these reviews have not been made public, the report notes, “so it is impossible to determine whether a rigorous self-assessment took place, but the Department’s actions over the following year suggest that tinkering with the immigration enforcement regime rather than genuinely reforming it was the top priority of the Administration.”
A co-author of the report, Mary Giovagnoli, director of the IPC, told Truthout she believes DHS Secretary Napolitano and the people she has brought in to staff the immigration agencies “are professionals who are dedicated to improvement, but are trapped in a world of competing entrenched interests and laws that are popular with Congress but which don’t actually work.”
She praised officials at DHS’s immigration agencies for “their willingness to stay engaged” with the immigration advocacy community. However, she added, “By the end of the Bush Administration that community’s level of trust and confidence was so low that we always knew it was going to take time to rebuild.”
She recalled that after DHS’s founding in 2002, “It was so large that it took three or four years for the agency’s management to understand exactly what they had in the immigration field.”
Noting that 2009 “was largely about promises and aspirations,” she said, “Whether DHS can make good on these promises remains to be seen.”
However, she added, “That process has started.”
Ms. Giovagnoli served as an attorney with the Departments of Justice and Homeland Security -- serving first as a trial attorney and associate general counsel with the Immigration and Naturalization Service (INS), and, following the creation of the Department of Homeland Security, as an associate chief counsel for United States Citizenship and Immigration Services (USCIS). She was also awarded a Congressional Fellowship from USCIS to serve for a year in Senator Edward M. Kennedy’s office, where she worked on comprehensive immigration reform and refugee issues.
Her co-author, Royce Bernstein Murray, worked as Associate Counsel on the Refugee and Asylum Law Division in the USCIS Office of the Chief Counsel for five years during which time she advised a range of humanitarian immigration programs. Previously, she served as an Asylum Officer/Presidential Management Fellow for the INS Office of International Affairs.
The IPC report examines the DHS immigration apparatus – Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).
The examination reveals that DHS is struggling with the challenges of reform—both administrative and legislative—and “finds itself attempting to create more humane ways to enforce broken laws, which is ultimately a losing proposition.”
The report concludes that DHS “is still trying to enforce programs like Operation Streamline, “a program which requires mandatory criminal prosecutions of non-violent border crossers, clogs the federal court system and drains resources that could be used to prosecute more serious criminals. DHS is also expanding partnerships with state and local law enforcement agencies (Secure Communities and 287(g) programs) in their search for ‘criminal aliens.’ These programs often identify people with no criminal history and persons ‘identified’ but found not to be deportable.”
The report says that the first year under the administration of President Barack Obama “was both promising and frustrating.” It describes “a year where the promise of reform seems to fight daily with the dynamics of an entrenched belief in an enforcement driven culture. For every two steps forward, it seems that the Department takes one step backward, inching its way toward a more humane and just system.”
It cautions that the immigration system is “living on borrowed time,” adding,
“Without immigration reform that gives DHS the breathing room to do the right thing, annual reviews will increasingly be catalogs of more enforcement measures without corresponding opportunities for immigrants to make the kinds of contributions to our country that enrich us all.”
The report was particularly critical of DHS’s enforcement priorities, arrangements with local law enforcement agencies, and asylum and detention procedures.
It said, “While DHS professes to have re-focused its attention on non-compliant employers in the workplace and prosecuting non-citizens with serious criminal convictions, data indicates that employers and violent
criminals make up a small percentage of enforcement targets.”
ICE prioritized detention reform in 2009, specifically addressing issues of
oversight, alternatives to detention, healthcare, and parole. “While advocateshave welcomed these initiatives, they continue to look for meaningful
changes in the day-to-day management of facilities and decisions to detain,” the report said.
It noted that DHS has continued to expand its partnership with state and local law-enforcement agencies, particularly through the Secure Communities and 287(g) programs.
The Secure Communities and 287(g) programs enlist the help of local law enforcement agencies to apprehend and detain people suspected of being illegal aliens. The programs have been widely criticized by police chiefs and sheriffs throughout the country for diverting local resources into activities for which they are not trained and arresting and detaining people for petty offenses.
DHS claims these programs target “criminal aliens.” However, people identified by these programs “include large numbers of individuals with no criminal history, individuals charged (but not convicted) of crimes, and persons ‘identified’ but not found to be deportable.”
Due process is an area in which DHS has made little tangible progress, the report says. For example, “While the registration component of NSEERS, a special registration program targeted at men from predominantly Muslim countries, was suspended in 2003, applicants applying for benefits continue to be plagued by mistakes made during the registration process, affecting their ability to adjust status or naturalize.”
The immigration court system remains overburdened, access to counsel is limited, and a streamlined appeals process offers inadequate review for many claims, the report charges.
It says there is “no evidence of progress in implementing the U.S. Commission on Religious Freedom’s recommendations for improving the expedited removal system for asylum seekers. The resolution of cases involving “material support” (of terrorism) continue to face delays that keep legitimate asylum seekers from receiving protection.”
The report recommends that DHS should create an ICE Ombudsman to investigate complaints, monitor enforcement strategies, and recommend personnel actions in response to complaints.”
To improve the conditions of detainees, ICE “should hire a Senior Advisor on Detainee Health, as the agency announced it would do last August, to maximize the effectiveness of the detainee healthcare group meetings and development of a medical classification system.”
ICE has been severely criticized for operating a network of detention facilities that fail to meet even minimum health standards. There have been more than a dozen deaths in detention because of failure to provide timely medical assistance in emergencies. Detainees also complain that the facilities offer little or no due process, principally access to their lawyers. Detention also often takes place far from the place where the detainee was apprehended, making it difficult to access legal help, families and records.
To improve performance in the asylum area, the report recommends, the Department should “create a Refugee Protection Office that would report directly to the DHS Secretary or Deputy Secretary. Coordinated efforts would increase the ability of DHS to quickly resolve lingering disputes such as resolution on material support and implementation of proposals to improve expedited removal for asylum-seekers.”
While praising the DHS for a number of positive developments, the report finds that “the spirit of reform is often stymied by an over-reliance on existing enforcement policies.”
This article originally appeared in Truthout.org
Monday, March 08, 2010
McCain and Lieberman: The Odd Couple Even Odder
By William Fisher
Civil liberties advocates and Constitutional law scholars lost no time in condemning proposed legislation introduced in the Senate yesterday that would hand the government the power to indefinitely detain terrorism suspects without charge and to conduct trials through military commissions only.
Typical was the response from the American Civil Liberties Union (ACLU), which said the proposed legislation would “deal a swift blow to due process and the rule of law.”
And Larry Cox, executive director of Amnesty International USA (AI), said, “Military commissions were created to consider evidence too inadequate to submit to a valid court. The commissions do not conform to the due process standards established under international law and do not have legitimacy in the eyes of the global community."
The “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010,” introduced by Republican Senator John McCain of Arizona and Independent Joseph Lieberman of Connecticut, would also create a new system of interrogation, requiring intelligence officials to be consulted about how to handle terrorism suspects after their capture.
The bill was precipitated by the Senators’ objections to the Obama administration’s decision to charge accused Christmas Day attacker Umar Farouk Abdulmutallab in the criminal court system. Abdulmutallab, while in FBI custody, was read his rights, including his right to remain silent and his right to an attorney. These Constitutional rights are enjoyed by all persons, whether they are citizens or not, who are arrested on U.S. territory.
U.S. officials insist Abdulmutallab provided valuable intelligence under civilian questioning despite being told he had the right to remain silent.
The McCain-Lieberman legislation would have a “high value detainee” team, made up of members of different intelligence agencies, interrogate and determine whether alleged terrorist suspects are “unprivileged enemy belligerents.” If so, and if the suspect is then charged, the legislation would mandate the use of the military commissions for trial.
President Barack Obama has already created such a team. Last summer, Obama announced a new interagency interrogation task force for extracting information from the most important terrorist suspects in its custody. Known as the High-Value Detainee Interrogation Group (HIG), the team draws on interrogators, intelligence analysts, linguists and cultural experts to interrogate detainees without torturing them. The unit is housed in the Federal Bureau of Investigation (FBI).
Laura W. Murphy, Director of the ACLU Washington Legislative Office, said the bill was “a direct attack on the Constitution.”
Chip Pitts, President of the Bill of Rights Defense Committee (BORDC), told IPS, “This bill’s warped understanding of international law and its mistaken predicate still blur actual wars (such as those in Afghanistan and Iraq today) with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited ‘global war on terror’.”
He added, “Particularly when seen along with the Obama administration’s rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it’s another leg in the terrible race to the bottom in which politicians compete to seem ‘tougher’ on terrorism while really diminishing national security.”
Constitutional law experts were equally critical.
Prof. Peter Shane of the Ohio State University law school told IPS, “There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons. There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack.”
The Bush Administration, he added, “convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators.”
Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the administration of President George W. Bush, who created a universe of “legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism.”
He said, “This category of ‘unlawful enemy combatants’ negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties.”
In introducing the proposed legislation, Sen. McCain said it “seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”
The legislation, McCain declared, “would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court.”
He added, “What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans.”
The proposed legislation was introduced at a time of fierce election-year acrimony over how the United States should handle alleged terrorists. In addition to attacking President Barack Obama over the treatment of the so-called Christmas Day bomber, Republicans have also denounced the Obama administration's call for trial in a civilian court of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11, 2001 attacks.
Democrats have responded by pointing out that US civilian courts, under both the Bush and Obama Administrations, have tried and convicted more than 300 terrorists. They have said that favoring military trials hands terrorists a propaganda victory.
But the Washington Post is reporting that President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, thus reversing Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.
Civil liberties advocates and Constitutional law scholars lost no time in condemning proposed legislation introduced in the Senate yesterday that would hand the government the power to indefinitely detain terrorism suspects without charge and to conduct trials through military commissions only.
Typical was the response from the American Civil Liberties Union (ACLU), which said the proposed legislation would “deal a swift blow to due process and the rule of law.”
And Larry Cox, executive director of Amnesty International USA (AI), said, “Military commissions were created to consider evidence too inadequate to submit to a valid court. The commissions do not conform to the due process standards established under international law and do not have legitimacy in the eyes of the global community."
The “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010,” introduced by Republican Senator John McCain of Arizona and Independent Joseph Lieberman of Connecticut, would also create a new system of interrogation, requiring intelligence officials to be consulted about how to handle terrorism suspects after their capture.
The bill was precipitated by the Senators’ objections to the Obama administration’s decision to charge accused Christmas Day attacker Umar Farouk Abdulmutallab in the criminal court system. Abdulmutallab, while in FBI custody, was read his rights, including his right to remain silent and his right to an attorney. These Constitutional rights are enjoyed by all persons, whether they are citizens or not, who are arrested on U.S. territory.
U.S. officials insist Abdulmutallab provided valuable intelligence under civilian questioning despite being told he had the right to remain silent.
The McCain-Lieberman legislation would have a “high value detainee” team, made up of members of different intelligence agencies, interrogate and determine whether alleged terrorist suspects are “unprivileged enemy belligerents.” If so, and if the suspect is then charged, the legislation would mandate the use of the military commissions for trial.
President Barack Obama has already created such a team. Last summer, Obama announced a new interagency interrogation task force for extracting information from the most important terrorist suspects in its custody. Known as the High-Value Detainee Interrogation Group (HIG), the team draws on interrogators, intelligence analysts, linguists and cultural experts to interrogate detainees without torturing them. The unit is housed in the Federal Bureau of Investigation (FBI).
Laura W. Murphy, Director of the ACLU Washington Legislative Office, said the bill was “a direct attack on the Constitution.”
Chip Pitts, President of the Bill of Rights Defense Committee (BORDC), told IPS, “This bill’s warped understanding of international law and its mistaken predicate still blur actual wars (such as those in Afghanistan and Iraq today) with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited ‘global war on terror’.”
He added, “Particularly when seen along with the Obama administration’s rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it’s another leg in the terrible race to the bottom in which politicians compete to seem ‘tougher’ on terrorism while really diminishing national security.”
Constitutional law experts were equally critical.
Prof. Peter Shane of the Ohio State University law school told IPS, “There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons. There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack.”
The Bush Administration, he added, “convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators.”
Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the administration of President George W. Bush, who created a universe of “legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism.”
He said, “This category of ‘unlawful enemy combatants’ negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties.”
In introducing the proposed legislation, Sen. McCain said it “seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”
The legislation, McCain declared, “would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court.”
He added, “What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans.”
The proposed legislation was introduced at a time of fierce election-year acrimony over how the United States should handle alleged terrorists. In addition to attacking President Barack Obama over the treatment of the so-called Christmas Day bomber, Republicans have also denounced the Obama administration's call for trial in a civilian court of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11, 2001 attacks.
Democrats have responded by pointing out that US civilian courts, under both the Bush and Obama Administrations, have tried and convicted more than 300 terrorists. They have said that favoring military trials hands terrorists a propaganda victory.
But the Washington Post is reporting that President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, thus reversing Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.
ACLU CHALLENGES MILITARY COMMISSIONS
By William Fisher
Civil libertarians hit back hard today (Sunday) at reports indicating that the Obama Administration is about to cave to pressure from Congress and local groups in New York City and is not only considering transferring the cases of suspected terrorists to another federal court, but even moving them to the military commission system.
The American Civil Liberties Union (ACLU) purchased a full-page advertisement in today’s New York Times, urging the president to stick to the Justice Department’s original plan to try “high-value” terror suspects in the civilian criminal justice system.
The ACLU said military commissions are “a second class system of justice which should be shut down for good. The Constitution is not optional, and the rule of law must be restored.”
The ad features a picture of President Obama morphing into a picture of former President Bush.
The ad asks: “What will it be Mr. President? Change or more of the Same?
“Candidate Barack Obama vowed to change the Bush-Cheney policies and restore America’s values of justice and due process. Many of us are shocked and concerned that right now, President Obama is considering reversing his attorney general’s decision to try the 9/11 defendants in criminal court. Our criminal justice system has successfully handled over 300 terrorism cases compared to only 3 in the military commissions. Our criminal justice system will resolve these cases more quickly and more credibly than the military commissions.
The ad urges readers to “Tell President Obama not to back down on his commitment to our justice system, and to try the 9/11 defendants in criminal court. Remind the world that America stands for due process, justice, and the rule of law.”
Anthony D. Romero, the ACLU’s Executive Director, said the organization
placed the ad because “it’s critical that Americans know what is at stake here: nothing less than America’s commitment to the Constitution and the rule of law.”
Other legal authorities have been blunt in their criticism of the Obama Administration. Prof. David J. R. Frakt, Director of the Criminal Law Practice Center at Western State University College of Law, told IPS, “Many of the crimes alleged to have been committed by detainees at Guantanamo are not crimes under the law of war and do not belong in military commissions. If military commissions are the only option, this may preclude some detainees from being tried at all.”
Frakt, a Lt. Col. in the Air Force Reserve, was appointed to defend Guantanamo detainee Mohammed Jawad, an alleged combatant facing charges for events that took place when he was a minor. In 2008, he challenged the role of the legal advisor to the convening authority -- the number two in the Office of Military Commissions -- Brigadier General Thomas Hartmann, in choosing his client for trial. Frakt argued that Hartmann had "...exercised unlawful command influence." Hartmann was widely quoted as saying the Prosecution should choose to charge captives based on whether their trials would: "...capture the imagination of the American people.
Former Secretary of State Colin Powell joined dozens of retired military officers in encouraging the administration to use the civilian criminal justice system. In a television interview, he said, “I don't know where the [Republican] claim comes that we are less safe…In eight years the military commissions have put three people on trial. Two of them served relatively short sentences and are free. One guy is in jail.”
Meanwhile, he said, “The federal courts, our Article III, regular legal court system, has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't…borne out by the history of the military commissions.”
As recently as two weeks ago, the Justice Department appeared to be steadfast in its commitment to civilian courts. “There is no precedent in the history of our Nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes," said the U.S. Department of Justice.
The administration appeared to be on board. The president has made his preference for civilian courts widely known. And John Brennan, Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism, said last week, “Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system—including high-profile terrorists such as (the shoe-bomber, Richard) Reid and 9/11 plotter Zacarious Moussaoui.”
But the political backlash was already growing. Most Congressional Republicans believe that military commissions are the correct vehicles for trying suspected terrorists. They also believe that those who cannot be tried in either civilian court or military commissions should be held indefinitely, without trial or charge. Some of these Congresspersons grudgingly acknowledge the Supreme Court’s ruling that all detainees must have the right to challenge their detention in U.S. courts – the habeas corpus right.
But others would deny this right, absent a Supreme Court ruling.
At the same time, some Democrats – looking toward the 2010 elections – are fearful that they will be called out as being “soft on terrorism” and are therefore either remaining silent or adopting the Republican line.
Congress threw an early monkey wrench into Administration plans to bring Guantanamo detainees to the U.S. for trials and to house those convicted in an Illinois prison the government was set to purchase. “Not in my backyard,” was the frightened cry that went up from Congress – which barred the President from moving any prisoner to the U.S. without their consent.
The wrath of right-wing politicians, activists and commentators reached a new level last week when Liz Cheney, daughter of former Vice President Dick Cheney, launched an attack on seven lawyers in the Justice Department. She tagged the lawyers as “Al Qaeda sympathizers” because the law firms they worked for before joining the government defended Guantanamo prisoners, often on a pro bono basis. Cheney called them “The Al-Qaeda Seven.”
“Keep America Safe,” the organization she heads along with William Kristol, a prominent conservative publisher, has launched an internet ad demanding that the identities of the seven lawyers be revealed.
Condemnation of the Cheney ad came from scores of lawyers, law professors, Ted Olsen, who served as George W. Bush’s solicitor general, and the American Bar Association.
Carolyn Lamm, president of the American Bar Association, called the Cheney ad “a divisive and diversionary tactic to impugn the character of lawyers who have sought to protect the fundamental rights of unpopular clients.” She said said that lawyers have an ethical obligation to "provide representation to people who otherwise would stand alone against the power and resources of the government--even to those accused of heinous crimes against this nation in the name of causes that evoke our contempt."
Civil libertarians hit back hard today (Sunday) at reports indicating that the Obama Administration is about to cave to pressure from Congress and local groups in New York City and is not only considering transferring the cases of suspected terrorists to another federal court, but even moving them to the military commission system.
The American Civil Liberties Union (ACLU) purchased a full-page advertisement in today’s New York Times, urging the president to stick to the Justice Department’s original plan to try “high-value” terror suspects in the civilian criminal justice system.
The ACLU said military commissions are “a second class system of justice which should be shut down for good. The Constitution is not optional, and the rule of law must be restored.”
The ad features a picture of President Obama morphing into a picture of former President Bush.
The ad asks: “What will it be Mr. President? Change or more of the Same?
“Candidate Barack Obama vowed to change the Bush-Cheney policies and restore America’s values of justice and due process. Many of us are shocked and concerned that right now, President Obama is considering reversing his attorney general’s decision to try the 9/11 defendants in criminal court. Our criminal justice system has successfully handled over 300 terrorism cases compared to only 3 in the military commissions. Our criminal justice system will resolve these cases more quickly and more credibly than the military commissions.
The ad urges readers to “Tell President Obama not to back down on his commitment to our justice system, and to try the 9/11 defendants in criminal court. Remind the world that America stands for due process, justice, and the rule of law.”
Anthony D. Romero, the ACLU’s Executive Director, said the organization
placed the ad because “it’s critical that Americans know what is at stake here: nothing less than America’s commitment to the Constitution and the rule of law.”
Other legal authorities have been blunt in their criticism of the Obama Administration. Prof. David J. R. Frakt, Director of the Criminal Law Practice Center at Western State University College of Law, told IPS, “Many of the crimes alleged to have been committed by detainees at Guantanamo are not crimes under the law of war and do not belong in military commissions. If military commissions are the only option, this may preclude some detainees from being tried at all.”
Frakt, a Lt. Col. in the Air Force Reserve, was appointed to defend Guantanamo detainee Mohammed Jawad, an alleged combatant facing charges for events that took place when he was a minor. In 2008, he challenged the role of the legal advisor to the convening authority -- the number two in the Office of Military Commissions -- Brigadier General Thomas Hartmann, in choosing his client for trial. Frakt argued that Hartmann had "...exercised unlawful command influence." Hartmann was widely quoted as saying the Prosecution should choose to charge captives based on whether their trials would: "...capture the imagination of the American people.
Former Secretary of State Colin Powell joined dozens of retired military officers in encouraging the administration to use the civilian criminal justice system. In a television interview, he said, “I don't know where the [Republican] claim comes that we are less safe…In eight years the military commissions have put three people on trial. Two of them served relatively short sentences and are free. One guy is in jail.”
Meanwhile, he said, “The federal courts, our Article III, regular legal court system, has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't…borne out by the history of the military commissions.”
As recently as two weeks ago, the Justice Department appeared to be steadfast in its commitment to civilian courts. “There is no precedent in the history of our Nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes," said the U.S. Department of Justice.
The administration appeared to be on board. The president has made his preference for civilian courts widely known. And John Brennan, Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism, said last week, “Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system—including high-profile terrorists such as (the shoe-bomber, Richard) Reid and 9/11 plotter Zacarious Moussaoui.”
But the political backlash was already growing. Most Congressional Republicans believe that military commissions are the correct vehicles for trying suspected terrorists. They also believe that those who cannot be tried in either civilian court or military commissions should be held indefinitely, without trial or charge. Some of these Congresspersons grudgingly acknowledge the Supreme Court’s ruling that all detainees must have the right to challenge their detention in U.S. courts – the habeas corpus right.
But others would deny this right, absent a Supreme Court ruling.
At the same time, some Democrats – looking toward the 2010 elections – are fearful that they will be called out as being “soft on terrorism” and are therefore either remaining silent or adopting the Republican line.
Congress threw an early monkey wrench into Administration plans to bring Guantanamo detainees to the U.S. for trials and to house those convicted in an Illinois prison the government was set to purchase. “Not in my backyard,” was the frightened cry that went up from Congress – which barred the President from moving any prisoner to the U.S. without their consent.
The wrath of right-wing politicians, activists and commentators reached a new level last week when Liz Cheney, daughter of former Vice President Dick Cheney, launched an attack on seven lawyers in the Justice Department. She tagged the lawyers as “Al Qaeda sympathizers” because the law firms they worked for before joining the government defended Guantanamo prisoners, often on a pro bono basis. Cheney called them “The Al-Qaeda Seven.”
“Keep America Safe,” the organization she heads along with William Kristol, a prominent conservative publisher, has launched an internet ad demanding that the identities of the seven lawyers be revealed.
Condemnation of the Cheney ad came from scores of lawyers, law professors, Ted Olsen, who served as George W. Bush’s solicitor general, and the American Bar Association.
Carolyn Lamm, president of the American Bar Association, called the Cheney ad “a divisive and diversionary tactic to impugn the character of lawyers who have sought to protect the fundamental rights of unpopular clients.” She said said that lawyers have an ethical obligation to "provide representation to people who otherwise would stand alone against the power and resources of the government--even to those accused of heinous crimes against this nation in the name of causes that evoke our contempt."
Friday, March 05, 2010
McCain and Lieberman: The Odd Couple Even Odder
By William Fisher
Civil liberties advocates and Constitutional law scholars lost no time in condemning proposed legislation introduced in the Senate yesterday that would hand the government the power to indefinitely detain terrorism suspects without charge and to conduct trials through military commissions only.
Typical was the response from the American Civil Liberties Union (ACLU), which said the proposed legislation would “deal a swift blow to due process and the rule of law.”
And Larry Cox, executive director of Amnesty International USA (AI), said, “Military commissions were created to consider evidence too inadequate to submit to a valid court. The commissions do not conform to the due process standards established under international law and do not have legitimacy in the eyes of the global community."
The “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010,” introduced by Republican Senator John McCain of Arizona and Independent Joseph Lieberman of Connecticut, would also create a new system of interrogation, requiring intelligence officials to be consulted about how to handle terrorism suspects after their capture.
The bill was precipitated by the Senators’ objections to the Obama administration’s decision to charge accused Christmas Day attacker Umar Farouk Abdulmutallab in the criminal court system. Abdulmutallab, while in FBI custody, was read his rights, including his right to remain silent and his right to an attorney. These Constitutional rights are enjoyed by all persons, whether they are citizens or not, who are arrested on U.S. territory.
U.S. officials insist Abdulmutallab provided valuable intelligence under civilian questioning despite being told he had the right to remain silent.
The McCain-Lieberman legislation would have a “high value detainee” team, made up of members of different intelligence agencies, interrogate and determine whether alleged terrorist suspects are “unprivileged enemy belligerents.” If so, and if the suspect is then charged, the legislation would mandate the use of the military commissions for trial.
President Barack Obama has already created such a team. Last summer, Obama announced a new interagency interrogation task force for extracting information from the most important terrorist suspects in its custody. Known as the High-Value Detainee Interrogation Group (HIG), the team draws on interrogators, intelligence analysts, linguists and cultural experts to interrogate detainees without torturing them. The unit is housed in the Federal Bureau of Investigation (FBI).
Laura W. Murphy, Director of the ACLU Washington Legislative Office, said the bill was “a direct attack on the Constitution.”
Chip Pitts, President of the Bill of Rights Defense Committee (BORDC), told IPS, “This bill’s warped understanding of international law and its mistaken predicate still blur actual wars (such as those in Afghanistan and Iraq today) with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited ‘global war on terror’.”
He added, “Particularly when seen along with the Obama administration’s rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it’s another leg in the terrible race to the bottom in which politicians compete to seem ‘tougher’ on terrorism while really diminishing national security.”
Constitutional law experts were equally critical.
Prof. Peter Shane of the Ohio State University law school told IPS, “There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons. There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack.”
The Bush Administration, he added, “convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators.”
Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the administration of President George W. Bush, who created a universe of “legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism.”
He said, “This category of ‘unlawful enemy combatants’ negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties.”
In introducing the proposed legislation, Sen. McCain said it “seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”
The legislation, McCain declared, “would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court.”
He added, “What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans.”
The proposed legislation was introduced at a time of fierce election-year acrimony over how the United States should handle alleged terrorists. In addition to attacking President Barack Obama over the treatment of the so-called Christmas Day bomber, Republicans have also denounced the Obama administration's call for trial in a civilian court of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11, 2001 attacks.
Democrats have responded by pointing out that US civilian courts, under both the Bush and Obama Administrations, have tried and convicted more than 300 terrorists. They have said that favoring military trials hands terrorists a propaganda victory.
But the Washington Post is reporting that President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, thus reversing Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.
Civil liberties advocates and Constitutional law scholars lost no time in condemning proposed legislation introduced in the Senate yesterday that would hand the government the power to indefinitely detain terrorism suspects without charge and to conduct trials through military commissions only.
Typical was the response from the American Civil Liberties Union (ACLU), which said the proposed legislation would “deal a swift blow to due process and the rule of law.”
And Larry Cox, executive director of Amnesty International USA (AI), said, “Military commissions were created to consider evidence too inadequate to submit to a valid court. The commissions do not conform to the due process standards established under international law and do not have legitimacy in the eyes of the global community."
The “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010,” introduced by Republican Senator John McCain of Arizona and Independent Joseph Lieberman of Connecticut, would also create a new system of interrogation, requiring intelligence officials to be consulted about how to handle terrorism suspects after their capture.
The bill was precipitated by the Senators’ objections to the Obama administration’s decision to charge accused Christmas Day attacker Umar Farouk Abdulmutallab in the criminal court system. Abdulmutallab, while in FBI custody, was read his rights, including his right to remain silent and his right to an attorney. These Constitutional rights are enjoyed by all persons, whether they are citizens or not, who are arrested on U.S. territory.
U.S. officials insist Abdulmutallab provided valuable intelligence under civilian questioning despite being told he had the right to remain silent.
The McCain-Lieberman legislation would have a “high value detainee” team, made up of members of different intelligence agencies, interrogate and determine whether alleged terrorist suspects are “unprivileged enemy belligerents.” If so, and if the suspect is then charged, the legislation would mandate the use of the military commissions for trial.
President Barack Obama has already created such a team. Last summer, Obama announced a new interagency interrogation task force for extracting information from the most important terrorist suspects in its custody. Known as the High-Value Detainee Interrogation Group (HIG), the team draws on interrogators, intelligence analysts, linguists and cultural experts to interrogate detainees without torturing them. The unit is housed in the Federal Bureau of Investigation (FBI).
Laura W. Murphy, Director of the ACLU Washington Legislative Office, said the bill was “a direct attack on the Constitution.”
Chip Pitts, President of the Bill of Rights Defense Committee (BORDC), told IPS, “This bill’s warped understanding of international law and its mistaken predicate still blur actual wars (such as those in Afghanistan and Iraq today) with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited ‘global war on terror’.”
He added, “Particularly when seen along with the Obama administration’s rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it’s another leg in the terrible race to the bottom in which politicians compete to seem ‘tougher’ on terrorism while really diminishing national security.”
Constitutional law experts were equally critical.
Prof. Peter Shane of the Ohio State University law school told IPS, “There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons. There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack.”
The Bush Administration, he added, “convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators.”
Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the administration of President George W. Bush, who created a universe of “legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism.”
He said, “This category of ‘unlawful enemy combatants’ negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties.”
In introducing the proposed legislation, Sen. McCain said it “seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”
The legislation, McCain declared, “would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court.”
He added, “What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans.”
The proposed legislation was introduced at a time of fierce election-year acrimony over how the United States should handle alleged terrorists. In addition to attacking President Barack Obama over the treatment of the so-called Christmas Day bomber, Republicans have also denounced the Obama administration's call for trial in a civilian court of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11, 2001 attacks.
Democrats have responded by pointing out that US civilian courts, under both the Bush and Obama Administrations, have tried and convicted more than 300 terrorists. They have said that favoring military trials hands terrorists a propaganda victory.
But the Washington Post is reporting that President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, thus reversing Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.
Thursday, March 04, 2010
DOD Releases Records of Illegal Surveillance
By William Fisher
Defense Department agencies improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, an Air Force briefing improperly included intelligence on an anti-war group called Alaskans for Peace and Justice, and Army Signals Intelligence in Louisiana unlawfully intercepted civilian cell phone conversations.
These are among the disclosures made this week in the release of more than 800 heavily-redacted pages of intelligence oversight reports, detailing activities that the Defense Department’s (DOD) Inspector General has “reason to believe are unlawful.”
The reports are the latest in an ongoing document release by more than a half-dozen intelligence agencies in response to a Freedom of Information Act (FOIA) lawsuit filed by Electronic Frontier Foundation (EFF).
The reports, submitted to the Intelligence Oversight Board (IOB) by the Inspectors General of the various Department of Defense components, cover the period from 2001 through 2008. The IOB’s role within the Executive Office of the President is to ensure that each component of the intelligence community works within the Constitution and all applicable laws.
The Inspector General of each intelligence agency is required to submit periodic reports to the IOB, which in turn is required to forward to the Attorney General any report identifying an intelligence activity that violates the law. Intelligence oversight reporting is rarely disclosed to the public.
This new release comes from various DOD components, including the Army and the Joint Chiefs of Staff. Much of the improper activity consisted of intelligence gathering on so-called “U.S. Persons,” including citizens, permanent residents and U.S.-based organizations.
While DOD agencies are generally prohibited from collecting such
information (except as part of foreign intelligence or counter-intelligence
activity), EFF says “it is apparent from the unredacted reports released to EFF that some DOD components have had chronic difficulty complying with that prohibition.”
Specific disclosures include:
· A report that the Joint Forces Command, working with the FBI, improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, as part of preparations for the 2002 Olympics.
· A North American Aerospace Defense Command (NORAD)
briefing improperly included intelligence on an anti-war group called Alaskans for Peace and Justice in 2005.
· A 2006 report that NORAD had procedural problems relating to collecting information on U.S. Persons.
· A report from 2003 of a closed investigation into prisoner abuse at Abu Ghraib and other sites in Iraq.
· A report from 2006 of improper intelligence (in the TALON program) on an anti-recruiting group. The TALON (Threat and Local Observation Notice) program grew out of the Air Force neighborhood watch program known as Eagle Eyes. It was designed to record potential terrorist pre-attack activity.
· A report from 2007 of an Army Reserve officer routinely collecting data on U.S. Persons exercising their free speech rights.
· A 2008 report that Army Signals Intelligence in Louisiana intercepted civilian cell phone conversations.
· A 2008 report that Army Cyber Counterintelligence officers attended the Black Hat hacker conference without disclosing their Army affiliation and without prior authorization to do so.
· A report that the Air Force Office of Special Investigations (AFOSI) set up a “honey pot” computer system to identify foreign threats in May 2006. In October 2007, AFOSI realized that the honey pot system might have been in violation of a sealed Foreign Intelligence Surveillance Court (FISC) order that required a Foreign Intelligence Surveillance Act (FISA) warrant for such activity. AFOSI was not privy to the FISC order and only knew of it from public media reporting. The operation was suspended. When the Air Force asked the Justice Department to see the FISC order at issue, DOJ’s National Security Division denied the Air Force’s request.
Asked by Truthout to comment on the significance of the document release, Nate Cardozo, a Legal Fellow at EFF, said, “To get any response at all from the DOD is noteworthy. At DOD the unlawful gathering of intelligence is a widespread practice that we consider problematic.”
He added that the disclosures are also important because they test the efficiency of the intelligence oversight mechanism – and “we find it seems to be working fairly well.”
Finally, he said, “We are interested in how many of these violations of law are referred to the Attorney General for possible criminal prosecution. Our experience is that that number is miniscule.”
EFF’s original FOIA request, dating back to February 2008, went unanswered, as did another request in June of 2009. As a result, in July 2009, EFF filed suit against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF’s suit was filed under the Freedom of Information Act (FOIA), requesting records of intelligence agencies' reporting of activities since 2001 that might have been unlawful or contrary to presidential order.
"By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence," EFF’s Cardozo said.
"Intelligence agencies are given a wide berth for national security reasons, but at a minimum they're required to act within the limits of the law. These records hold important details about how well the Executive Branch's internal checks operate," he said.
Members of the Intelligence Oversight Board are appointed by the president to advise on intelligence matters.
A storm of media coverage followed the previous disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams. That disclosure focused public attention on the lack of transparency in intelligence reporting. Lawmakers accused the CIA of deliberately misleading Congress and called for an investigation into officials' conduct.
EFF says the reports the agencies have provided to the Intelligence Oversight Board “undoubtedly contain information that will shed some light on incidents such as this -- information that is necessary in order to provide appropriate oversight.”
In addition to the CIA, EFF's lawsuit named the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State -- all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.
"The CIA is not the only agency that has faced questions about the legality of its intelligence programs," said EFF Staff Attorney Marcia Hofmann. "Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We're seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public."
The first results of the EFF suit were delivered in December 2009. They included:
· The Department of Homeland Security improperly investigated the U.S.-based religious organization the Nation of Islam.
· High-level Pentagon officials gave false information to Congress about al-Qaeda and the 9/11 attacks.
· The Department of Homeland Security improperly collected intelligence about a non-violent Muslim conference in Georgia, including details about conference speakers who were Americans.
· The National Security Agency admitted that, as of late 2007, it lacked processes and procedures for timely reporting of intelligence oversight violations.
Steven Aftergood, director of the Government Secrecy Project at the Federation of American Scientists, thinks the latest document release is significant but inconclusive. He told Truthout, “The latest release leaves a lot of questions unanswered. For example, what was the specific nature of the reported activities? And what was the official response?”
As to the importance of the released documents, Aftergood said, “It's really hard to say. But still, thanks to EFF and the Freedom of Information Act, we at least have a better idea of how much we don't know.”
He added, “It's also somewhat encouraging that the DOD is complying with the requirement to report potentially unlawful activities. At least there is some kind of paper trail, even if much of remains classified for the time being.”
This article originally appeared in Truthout.org
Defense Department agencies improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, an Air Force briefing improperly included intelligence on an anti-war group called Alaskans for Peace and Justice, and Army Signals Intelligence in Louisiana unlawfully intercepted civilian cell phone conversations.
These are among the disclosures made this week in the release of more than 800 heavily-redacted pages of intelligence oversight reports, detailing activities that the Defense Department’s (DOD) Inspector General has “reason to believe are unlawful.”
The reports are the latest in an ongoing document release by more than a half-dozen intelligence agencies in response to a Freedom of Information Act (FOIA) lawsuit filed by Electronic Frontier Foundation (EFF).
The reports, submitted to the Intelligence Oversight Board (IOB) by the Inspectors General of the various Department of Defense components, cover the period from 2001 through 2008. The IOB’s role within the Executive Office of the President is to ensure that each component of the intelligence community works within the Constitution and all applicable laws.
The Inspector General of each intelligence agency is required to submit periodic reports to the IOB, which in turn is required to forward to the Attorney General any report identifying an intelligence activity that violates the law. Intelligence oversight reporting is rarely disclosed to the public.
This new release comes from various DOD components, including the Army and the Joint Chiefs of Staff. Much of the improper activity consisted of intelligence gathering on so-called “U.S. Persons,” including citizens, permanent residents and U.S.-based organizations.
While DOD agencies are generally prohibited from collecting such
information (except as part of foreign intelligence or counter-intelligence
activity), EFF says “it is apparent from the unredacted reports released to EFF that some DOD components have had chronic difficulty complying with that prohibition.”
Specific disclosures include:
· A report that the Joint Forces Command, working with the FBI, improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, as part of preparations for the 2002 Olympics.
· A North American Aerospace Defense Command (NORAD)
briefing improperly included intelligence on an anti-war group called Alaskans for Peace and Justice in 2005.
· A 2006 report that NORAD had procedural problems relating to collecting information on U.S. Persons.
· A report from 2003 of a closed investigation into prisoner abuse at Abu Ghraib and other sites in Iraq.
· A report from 2006 of improper intelligence (in the TALON program) on an anti-recruiting group. The TALON (Threat and Local Observation Notice) program grew out of the Air Force neighborhood watch program known as Eagle Eyes. It was designed to record potential terrorist pre-attack activity.
· A report from 2007 of an Army Reserve officer routinely collecting data on U.S. Persons exercising their free speech rights.
· A 2008 report that Army Signals Intelligence in Louisiana intercepted civilian cell phone conversations.
· A 2008 report that Army Cyber Counterintelligence officers attended the Black Hat hacker conference without disclosing their Army affiliation and without prior authorization to do so.
· A report that the Air Force Office of Special Investigations (AFOSI) set up a “honey pot” computer system to identify foreign threats in May 2006. In October 2007, AFOSI realized that the honey pot system might have been in violation of a sealed Foreign Intelligence Surveillance Court (FISC) order that required a Foreign Intelligence Surveillance Act (FISA) warrant for such activity. AFOSI was not privy to the FISC order and only knew of it from public media reporting. The operation was suspended. When the Air Force asked the Justice Department to see the FISC order at issue, DOJ’s National Security Division denied the Air Force’s request.
Asked by Truthout to comment on the significance of the document release, Nate Cardozo, a Legal Fellow at EFF, said, “To get any response at all from the DOD is noteworthy. At DOD the unlawful gathering of intelligence is a widespread practice that we consider problematic.”
He added that the disclosures are also important because they test the efficiency of the intelligence oversight mechanism – and “we find it seems to be working fairly well.”
Finally, he said, “We are interested in how many of these violations of law are referred to the Attorney General for possible criminal prosecution. Our experience is that that number is miniscule.”
EFF’s original FOIA request, dating back to February 2008, went unanswered, as did another request in June of 2009. As a result, in July 2009, EFF filed suit against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF’s suit was filed under the Freedom of Information Act (FOIA), requesting records of intelligence agencies' reporting of activities since 2001 that might have been unlawful or contrary to presidential order.
"By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence," EFF’s Cardozo said.
"Intelligence agencies are given a wide berth for national security reasons, but at a minimum they're required to act within the limits of the law. These records hold important details about how well the Executive Branch's internal checks operate," he said.
Members of the Intelligence Oversight Board are appointed by the president to advise on intelligence matters.
A storm of media coverage followed the previous disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams. That disclosure focused public attention on the lack of transparency in intelligence reporting. Lawmakers accused the CIA of deliberately misleading Congress and called for an investigation into officials' conduct.
EFF says the reports the agencies have provided to the Intelligence Oversight Board “undoubtedly contain information that will shed some light on incidents such as this -- information that is necessary in order to provide appropriate oversight.”
In addition to the CIA, EFF's lawsuit named the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State -- all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.
"The CIA is not the only agency that has faced questions about the legality of its intelligence programs," said EFF Staff Attorney Marcia Hofmann. "Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We're seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public."
The first results of the EFF suit were delivered in December 2009. They included:
· The Department of Homeland Security improperly investigated the U.S.-based religious organization the Nation of Islam.
· High-level Pentagon officials gave false information to Congress about al-Qaeda and the 9/11 attacks.
· The Department of Homeland Security improperly collected intelligence about a non-violent Muslim conference in Georgia, including details about conference speakers who were Americans.
· The National Security Agency admitted that, as of late 2007, it lacked processes and procedures for timely reporting of intelligence oversight violations.
Steven Aftergood, director of the Government Secrecy Project at the Federation of American Scientists, thinks the latest document release is significant but inconclusive. He told Truthout, “The latest release leaves a lot of questions unanswered. For example, what was the specific nature of the reported activities? And what was the official response?”
As to the importance of the released documents, Aftergood said, “It's really hard to say. But still, thanks to EFF and the Freedom of Information Act, we at least have a better idea of how much we don't know.”
He added, “It's also somewhat encouraging that the DOD is complying with the requirement to report potentially unlawful activities. At least there is some kind of paper trail, even if much of remains classified for the time being.”
This article originally appeared in Truthout.org
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