By William Fisher
As the administration of President Barack Obama and Congressional lawmakers prepare to tackle comprehensive immigration reform, a leading immigration advocate is charging that Government inaction has resulted in “a range of enforcement-only initiatives that have cost the country billions of dollars, while doing little to impede the flow of unauthorized immigrants.”
According to a new report by the Immigration Policy Center of the American Immigration Council, “the current immigration system’s structural failures, and the inadequate or misguided responses to these failures, have led to the largest unauthorized population” in American history.
“Nearly everyone agrees that our immigration system is badly broken and in urgent need of reform. Under the existing system people are dying at the border, immigrants are living and working in abject conditions, families trying to reunite legally are separated for many years, employers are unable to hire the workers that they need, U.S. workers suffer from the unlevel playing field shared with exploited immigrant workers, and law-abiding U.S. employers are in unfair competition with unscrupulous employers who increase profits by hiring cheap and vulnerable labor,” the report says, adding, “Meanwhile, the United States continues to spend billions of dollars on enforcing these broken laws.”
“Focusing on the Solutions: The Key Principles of Comprehensive Immigration Reform” summarizes the key elements that need to be included in a successful legislative package.
Commenting on recent proposals made by Congressional lawmakers, IPC Director Mary Giovagnoli told IPS that statements from Senators Charles Schumer of New York and Lindsey Graham of South Carolina “mark renewed commitment to providing immigration reform that will bolster the economy and provide for America's future.”
She added, "We encourage the President and Senators Schumer and Graham to go beyond words and produce legislation that will finally fix our broken immigration system once and for all." An outline of the lawmakers’ ideas appeared in The Washington Post.
The IPC report identifies ten areas it says lawmakers need to concentrate on.
First, insufficient numbers of visas are made available to bring in either high-skilled or less-skilled workers at the levels needed to meet the changing needs of the U.S. economy and labor market.
Second, family members who are eligible for visas must wait up to 20 years to be reunited with family living in the United States.
Third, wage and workplace violations by unscrupulous employers who exploit immigrant workers are undercutting honest businesses and harming all workers.
Fourth, inadequate government infrastructure is delaying the integration of immigrants who want to become U.S. citizens.
Fifth, Legalization. “Most Americans understand that we cannot deport 10-1 million people or hope that they will choose to ‘self-deport.’ It is clear that current enforcement-only responses have not been effective and are not a realistic solution to the current crisis. The underlying flaws of the legal immigration system must be addressed in order to create a fair, humane, and practical immigration system for the 21st century -- a system that is responsive to the needs of our economy and encourages legal behavior.”
“Requiring the 10-11 million unauthorized immigrants residing in the U.S. to register with the government and meet eligibility criteria in order to gain legal status is a key element of comprehensive immigration reform,” the report says.
Sixth, the report says it’s likely that Congress “will transform the way employers verify the work authorization of their workers. Since this will affect immigrants and citizens alike, and because an error in the system can cost a worker his job and paycheck, it is important to make the system effective.”
Seventh, comprehensive reform of our broken immigration system will “necessarily transform the role of immigration enforcement.” Legalization of unauthorized immigrants already in the United States “will result in a significantly smaller unauthorized population, and the creation of flexible legal channels for those immigrants we need will ensure that future flows of illegal immigration are minimal.” But the report says there will continue to be a need to enforce the nation’s immigration laws.
Eighth, the report notes that family-oriented immigration has always been a pillar of the U.S. immigration system. “However, many close family members of U.S. citizens and legal permanent residents are currently waiting years, if not decades, to reunite with their loved ones.”
Ninth, the report says, comprehensive immigration reform must address the future needs of the U.S. economy and create a well-functioning and flexible system of permanent and temporary visas for both high-skilled and low-skilled workers. Policymakers must recognize that if we create a legal immigration system that functions well, there will be less pressure on immigrants come to the U.S. illegally and for employers to hire unauthorized workers.”
Tenth, the report says immigrant integration will benefit everyone because “it enables immigrants to realize their full potential, contribute more to the U.S. economy, and develop deeper community ties.” It notes that the U.S. “has no national strategy for facilitating integration and insufficient infrastructure to facilitate a smooth transition from immigrant to citizen.”
Saturday, March 27, 2010
Right Wing Blocks Legal Aid
By William Fisher
For the past 14 years, the non-profit company set up by Congress to provide legal services for the poor, has been forced to short-change the needy because of severe Government restrictions on how it can use its funding.
The Legal Services Corporation (LSC) has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help with both programs that receive government funds and even those that use non-federal funds raised by legal services programs.
Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch. (OMB stands for the Government’s powerful Office of Management and Budget.)
Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group told IPS, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of Citizens of America."
The Legal Services Corporation (LSC) is a private, non-profit corporation established by the United States Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. The LSC was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process.
OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.”
According to state bar associations, court-established Access to Justice Commissions, and state legal services planning bodies, the funding restrictions have had disastrous consequences for poor people who need legal services.
These organizations have found that the restrictions placed on organizations receiving federal funding present "major barriers to justice for low-income persons . . ." (Arkansas); prevent representation "in cases ranging from an illegal tenant lockout to consumer fraud, to civil rights enforcement." (New Hampshire); have a "negative impact," "in actual practice (causing great inefficiencies in the way applicants for service must be processed and referred) and principle (denial of essential and fundamental legal assistance to some who need it)." (New Jersey); are "major obstacles . . . for achieving ‘equal access' for disfavored clients and politically unpopular cases." (Texas); and limit programs' "use of the most appropriate legal strategies to effectively represent low income clients with high priority legal needs."(Washington).
The LSC Act specifically prohibits organizations receiving LSC funding from using LSC or private funds to engage in: political activities; most criminal cases; "challenging criminal convictions against officers of the court or law enforcement officers; organizing activities, including training for – or encouraging of – political or labor activities"; litigation to receive "non-therapeutic abortions" or "compel the provision of abortion services over religious or moral objections"; and "proceedings involving desegregation of public schools, military service or assisted suicide."
Additional funding restrictions have been added over the years. In 1996, Congress expanded the LSC restrictions to apply to funds from all sources, including federal, state, local, and private funds, with the exception of tribal funds. It also prohibited additional activities, including: class actions; all abortion-related litigation; representing prisoners; representing people who are being evicted from public housing for allegedly distributing illegal drugs; redistricting activities; lobbying governmental bodies, with limited exceptions; and representing non-U.S. citizens, with limited exceptions.
Current LSC rules also require legal aid programs that wish to lobby, spend
private dollars on class action lawsuits, comment on proposed regulations, or
represent certain types of clients, such as prisoners or certain immigrants, to
set up physically separate offices with separate staff.
Legislative efforts to overturn the LSC funding restrictions have increased in
the past year. In March 2009, Sen. Tom Harkin, an Iowa Democrat, introduced the Civil Access to Justice Act of 2009 that would end the restrictions on the use of non-federal funds by LSC grantees, except those related to abortion litigation and a few other activities. "Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend non-federal funds to ensure access to the courts," said Harkin.
Public sentiment also appears to be on the side of providing legal access to
those in need. OMB Watch charges that, “Since the Reagan administration, conservatives have sounded a drumbeat of opposition directed at the LSC. The Reagan budgets annually proposed elimination of legal services, only to have those services protected by Congress. Over the years, LSC funding has limped along. However, with the recent economic downturn, there has been a noticeable uptick in support for legal services. According to the Associated Press, two-thirds of those polled in 2009 on behalf of the American Bar Association said they favor federal funding for people who need legal assistance. Notably, Congress increased funding for the LSC in the last appropriations cycle.”
For 2007, LSC had a budget of some $350 million. This year it has asked Congress to provide $516.5 million, with more than 95 percent of the budget request going to fund 136 nonprofit legal aid programs across the nation that provide civil legal assistance to the nation's poor.
For the past 14 years, the non-profit company set up by Congress to provide legal services for the poor, has been forced to short-change the needy because of severe Government restrictions on how it can use its funding.
The Legal Services Corporation (LSC) has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help with both programs that receive government funds and even those that use non-federal funds raised by legal services programs.
Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch. (OMB stands for the Government’s powerful Office of Management and Budget.)
Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group told IPS, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of Citizens of America."
The Legal Services Corporation (LSC) is a private, non-profit corporation established by the United States Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. The LSC was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process.
OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.”
According to state bar associations, court-established Access to Justice Commissions, and state legal services planning bodies, the funding restrictions have had disastrous consequences for poor people who need legal services.
These organizations have found that the restrictions placed on organizations receiving federal funding present "major barriers to justice for low-income persons . . ." (Arkansas); prevent representation "in cases ranging from an illegal tenant lockout to consumer fraud, to civil rights enforcement." (New Hampshire); have a "negative impact," "in actual practice (causing great inefficiencies in the way applicants for service must be processed and referred) and principle (denial of essential and fundamental legal assistance to some who need it)." (New Jersey); are "major obstacles . . . for achieving ‘equal access' for disfavored clients and politically unpopular cases." (Texas); and limit programs' "use of the most appropriate legal strategies to effectively represent low income clients with high priority legal needs."(Washington).
The LSC Act specifically prohibits organizations receiving LSC funding from using LSC or private funds to engage in: political activities; most criminal cases; "challenging criminal convictions against officers of the court or law enforcement officers; organizing activities, including training for – or encouraging of – political or labor activities"; litigation to receive "non-therapeutic abortions" or "compel the provision of abortion services over religious or moral objections"; and "proceedings involving desegregation of public schools, military service or assisted suicide."
Additional funding restrictions have been added over the years. In 1996, Congress expanded the LSC restrictions to apply to funds from all sources, including federal, state, local, and private funds, with the exception of tribal funds. It also prohibited additional activities, including: class actions; all abortion-related litigation; representing prisoners; representing people who are being evicted from public housing for allegedly distributing illegal drugs; redistricting activities; lobbying governmental bodies, with limited exceptions; and representing non-U.S. citizens, with limited exceptions.
Current LSC rules also require legal aid programs that wish to lobby, spend
private dollars on class action lawsuits, comment on proposed regulations, or
represent certain types of clients, such as prisoners or certain immigrants, to
set up physically separate offices with separate staff.
Legislative efforts to overturn the LSC funding restrictions have increased in
the past year. In March 2009, Sen. Tom Harkin, an Iowa Democrat, introduced the Civil Access to Justice Act of 2009 that would end the restrictions on the use of non-federal funds by LSC grantees, except those related to abortion litigation and a few other activities. "Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend non-federal funds to ensure access to the courts," said Harkin.
Public sentiment also appears to be on the side of providing legal access to
those in need. OMB Watch charges that, “Since the Reagan administration, conservatives have sounded a drumbeat of opposition directed at the LSC. The Reagan budgets annually proposed elimination of legal services, only to have those services protected by Congress. Over the years, LSC funding has limped along. However, with the recent economic downturn, there has been a noticeable uptick in support for legal services. According to the Associated Press, two-thirds of those polled in 2009 on behalf of the American Bar Association said they favor federal funding for people who need legal assistance. Notably, Congress increased funding for the LSC in the last appropriations cycle.”
For 2007, LSC had a budget of some $350 million. This year it has asked Congress to provide $516.5 million, with more than 95 percent of the budget request going to fund 136 nonprofit legal aid programs across the nation that provide civil legal assistance to the nation's poor.
Friday, March 26, 2010
Post-Racial What?
By William Fisher
Just in case you've bought into the "post-racial" era of "Yes, We Can," consider the plight of Zachari Klawonn.
Klawonn is an Army Specialist, the son of an American father and a Moroccan mother. He is 20 years old.
As told by The Washington Post, Klawonn was sitting in his barrack room when he heard a THUD. THUD. THUD. Someone was mule-kicking the door of his room, leaving marks that weeks later -- long after Army investigators had come and gone -- would still be visible.
Tthe pounding had stopped by the time Klawonn got to the door. What he found was a note: "F--- YOU RAGHEAD BURN IN HELL" written with a black marker.
But Klawonn had been called worse in the military: Sand monkey. Carpet jockey. Raghead. Zachari bin Laden. Nidal Klawonn. "But the fact that someone had tracked him down in the dead of night to deliver this specific message sent a chill through his body," The Post wrote.
Klawonn had been told by Army recruiters in his home town of Bradenton, Fla.,just how desperate was the Army's need for Muslim soldiers like him to help win the wars in Iraq and Afghanistan.
But he was ordered not to fast and pray. His Koran was torn up. Other soldiers jeered and threw water bottles at him. His platoon sergeant warned him to hide his faith to avoid getting a "beating" by fellow troops. But nothing changed, despite the formal complaints he lodged.
Then came the November shootings at Fort Hood and the arrest of a Muslim soldier he'd never met: Maj. Nidal M. Hasan, who is charged with killing 13 people and injuring more than 30 in a massacre that stunned the nation. And The Post says that from that point on, things only got worse.
Klawonn believed that Hasan's rampage had only added to his visibility.
Now rewind to 1950. The Korean War was being fought. Like millions of others, I was drafted and - because I has been a musician and a newspaper reporter in civilian life - I was assigned to a Military Police unit - the 800th Military Police Company stationed at First Army Headquarters on Governor's Island in scenic New York harbor. For reasons that remain mysteries to this day, almost everyone drafted into that unit had a college degree. And many were Jews.
But first came basic training, which took us to Camp Kilmer in New Jersey. During World War II, Kilmer had played a major role in shipping GIs out to fight in Europe and the Pacific - and I and my fellow conscripts lived in terror of finding ourselves on a slow boat to Korea.
There was, however, an item at Kilmer that was even scarier than the idea of shipping out. That item came in the form of our company's drill sergeant, let's call him Sgt. Duffy. Sgt. Duffy was a compact-looking Regular Army soldier, with the distinctive red nose of a guy who drinks too much.
But his nose wasn't the problem; his mouth was.
"OK, listen up you college Jewboys. Christ-killers. You Kikes can't be good soldiers, but it's my job to try, so I will."
And try he did. He subjected us to weeks of scurrilous religious and ethnic hate speech, even including homespun epithets from the South, which none of us Northeasterners had ever heard.
He called us "Ni**er-lovers," though the major civil rights battles had not yet been fought. He insulted our families by describing us simultaneously as "the money changers who own all the banks" and "the communists who will take over the world and take our money away."
He woke us up at three in the morning to send us out in the pouring rain carrying a full backpack and our M-1 rifles, to make us run around and around what seemed an endless parade ground track until we collapsed from exhaustion, and many of us did.
To Duffy's credit, sort of, he stayed out in the rain with his running charges until breakfast time, all the while raging at Jewboys, Kollege-Kikes, N***er-Lovers and Fa**ots.
Nor was this a case of subjecting new recruits to "tough love" to harden us for battle. This was a case of modifying the Army Basic Training Manual to accommodate a level of bigotry that would normally be ascribed to our military enemies.
And Duffy wasn't the only bigot. We learned from recruits in other units that they were hearing much of the same. It was almost like it was Standard Operating Procedure.
But it wasn't, of course. It just happened to be the kind of behavior about which the Army was comfortable turning a blind eye. Just as it did when the soldiers it shipped off to Korea just happened to be Africa-Americans.
Well, I was about to write that I was certain the Army has changed exponentially since those Dark Ages of the Korean 1950s. But what about Spec. Klawonn?
Is Islamophobia worse or better than anti-Semitism or homophobia or "Ni***r-Loving"? The point is largely rhetorical; they're all equally reprehensible.
But we need to acknowledge that this kind of stuff has been around in American society forever and, despite (or perhaps because of) our election of an African-American as our president, it shows few signs of going away any time soon. On the contrary, all the data suggests that hate-speech - and actions - are increasing.
Now, if you'd like to try to find solace in delusional thinking, you can pretend that the weekend's ugly racism, homophobia and generalized hate exhibited by the Tea Partiers -- egged on by Republican Congresspersons and staffers cheering from a second-floor balcony was not typical of how Americans think and feel.
You can pretend that this kind of garbage ended with the Civil Rights Act of 1964. But, sorry to say, that law simply served to amp up the resistance of the White Supremacists. And it took many years for us to turn down their volume, though the craziness that sparked the volume is still with us.
So maybe it's not "typical" anymore, but it's there, still very much with us.
For me, the saddest part of this current saga is that the Republican Congressional leadership has been, shall we say, muted in its condemnation of the Tea Party protestors. GOP leaders have instead blamed Democrats for using the attacks fto gain political advantage -- to ginn up outrage and raise campaign contributions.
Even though most of the Tea Party folks self-identify as Republicans, this should have been a time when Democratic and Republican leaders decided to rise above partisanship and present a truly united front unequivocally condemning hate speech, incitement and violence.
Alas, to date only the Democrats seem to be able to muster the courage to call out the Tea Partiers. We can only hope that a belated coming together will happen now that all the health care legislation has become law.
But I'm not holding my breath.
Just in case you've bought into the "post-racial" era of "Yes, We Can," consider the plight of Zachari Klawonn.
Klawonn is an Army Specialist, the son of an American father and a Moroccan mother. He is 20 years old.
As told by The Washington Post, Klawonn was sitting in his barrack room when he heard a THUD. THUD. THUD. Someone was mule-kicking the door of his room, leaving marks that weeks later -- long after Army investigators had come and gone -- would still be visible.
Tthe pounding had stopped by the time Klawonn got to the door. What he found was a note: "F--- YOU RAGHEAD BURN IN HELL" written with a black marker.
But Klawonn had been called worse in the military: Sand monkey. Carpet jockey. Raghead. Zachari bin Laden. Nidal Klawonn. "But the fact that someone had tracked him down in the dead of night to deliver this specific message sent a chill through his body," The Post wrote.
Klawonn had been told by Army recruiters in his home town of Bradenton, Fla.,just how desperate was the Army's need for Muslim soldiers like him to help win the wars in Iraq and Afghanistan.
But he was ordered not to fast and pray. His Koran was torn up. Other soldiers jeered and threw water bottles at him. His platoon sergeant warned him to hide his faith to avoid getting a "beating" by fellow troops. But nothing changed, despite the formal complaints he lodged.
Then came the November shootings at Fort Hood and the arrest of a Muslim soldier he'd never met: Maj. Nidal M. Hasan, who is charged with killing 13 people and injuring more than 30 in a massacre that stunned the nation. And The Post says that from that point on, things only got worse.
Klawonn believed that Hasan's rampage had only added to his visibility.
Now rewind to 1950. The Korean War was being fought. Like millions of others, I was drafted and - because I has been a musician and a newspaper reporter in civilian life - I was assigned to a Military Police unit - the 800th Military Police Company stationed at First Army Headquarters on Governor's Island in scenic New York harbor. For reasons that remain mysteries to this day, almost everyone drafted into that unit had a college degree. And many were Jews.
But first came basic training, which took us to Camp Kilmer in New Jersey. During World War II, Kilmer had played a major role in shipping GIs out to fight in Europe and the Pacific - and I and my fellow conscripts lived in terror of finding ourselves on a slow boat to Korea.
There was, however, an item at Kilmer that was even scarier than the idea of shipping out. That item came in the form of our company's drill sergeant, let's call him Sgt. Duffy. Sgt. Duffy was a compact-looking Regular Army soldier, with the distinctive red nose of a guy who drinks too much.
But his nose wasn't the problem; his mouth was.
"OK, listen up you college Jewboys. Christ-killers. You Kikes can't be good soldiers, but it's my job to try, so I will."
And try he did. He subjected us to weeks of scurrilous religious and ethnic hate speech, even including homespun epithets from the South, which none of us Northeasterners had ever heard.
He called us "Ni**er-lovers," though the major civil rights battles had not yet been fought. He insulted our families by describing us simultaneously as "the money changers who own all the banks" and "the communists who will take over the world and take our money away."
He woke us up at three in the morning to send us out in the pouring rain carrying a full backpack and our M-1 rifles, to make us run around and around what seemed an endless parade ground track until we collapsed from exhaustion, and many of us did.
To Duffy's credit, sort of, he stayed out in the rain with his running charges until breakfast time, all the while raging at Jewboys, Kollege-Kikes, N***er-Lovers and Fa**ots.
Nor was this a case of subjecting new recruits to "tough love" to harden us for battle. This was a case of modifying the Army Basic Training Manual to accommodate a level of bigotry that would normally be ascribed to our military enemies.
And Duffy wasn't the only bigot. We learned from recruits in other units that they were hearing much of the same. It was almost like it was Standard Operating Procedure.
But it wasn't, of course. It just happened to be the kind of behavior about which the Army was comfortable turning a blind eye. Just as it did when the soldiers it shipped off to Korea just happened to be Africa-Americans.
Well, I was about to write that I was certain the Army has changed exponentially since those Dark Ages of the Korean 1950s. But what about Spec. Klawonn?
Is Islamophobia worse or better than anti-Semitism or homophobia or "Ni***r-Loving"? The point is largely rhetorical; they're all equally reprehensible.
But we need to acknowledge that this kind of stuff has been around in American society forever and, despite (or perhaps because of) our election of an African-American as our president, it shows few signs of going away any time soon. On the contrary, all the data suggests that hate-speech - and actions - are increasing.
Now, if you'd like to try to find solace in delusional thinking, you can pretend that the weekend's ugly racism, homophobia and generalized hate exhibited by the Tea Partiers -- egged on by Republican Congresspersons and staffers cheering from a second-floor balcony was not typical of how Americans think and feel.
You can pretend that this kind of garbage ended with the Civil Rights Act of 1964. But, sorry to say, that law simply served to amp up the resistance of the White Supremacists. And it took many years for us to turn down their volume, though the craziness that sparked the volume is still with us.
So maybe it's not "typical" anymore, but it's there, still very much with us.
For me, the saddest part of this current saga is that the Republican Congressional leadership has been, shall we say, muted in its condemnation of the Tea Party protestors. GOP leaders have instead blamed Democrats for using the attacks fto gain political advantage -- to ginn up outrage and raise campaign contributions.
Even though most of the Tea Party folks self-identify as Republicans, this should have been a time when Democratic and Republican leaders decided to rise above partisanship and present a truly united front unequivocally condemning hate speech, incitement and violence.
Alas, to date only the Democrats seem to be able to muster the courage to call out the Tea Partiers. We can only hope that a belated coming together will happen now that all the health care legislation has become law.
But I'm not holding my breath.
Wednesday, March 24, 2010
Lindsey Graham’s Grand Bargain
By William Fisher
The prominent scholar who believes that Khalid Sheikh Mohammed (KSM), self-styled mastermind of the 9/11 terror attacks, should receive no trial is nonetheless advising Senator Lindsey Graham on a proposal to the White House to create “an overarching detainee framework” including a new approach to habeas corpus petitions and indefinite detention of “too dangerous to free” detainees without trial.
Benjamin Wittes, a senior fellow and research director in public law at the
Brookings Institution was the co-author last week of an oped published in the Washington Post proposing that a trial for KSM would be a waste of time and money. Wittes and his co-author, Jack Goldsmith, a former George W. Bush assistant attorney general who now teaches law at Harvard, called the trial of KSM “dispensable” and proffered that “the politically draining fight about civilian vs. military trials is not worth the costs.”
The Washington Post is reporting that Sen. Graham, a conservative Republican from South Carolina, has submitted draft legislation to the White House. The proposal was reportedly triggered by Graham’s efforts to reach a deal with the Obama Administration: Scrap the announced trial of KSM in the civilian justice system in exchange for the senator using his influence among congressional Republicans to drop their opposition to the closing of the U.S. navy prison at Guantanamo Bay, Cuba.
During his first week in office, President Obama announced that Guantanamo would be closed by January 1, 2010, but this deadline was missed. One of the main reasons was the unwillingness of countries – including the U.S. – to accept detainees even though they were no longer deemed to be a danger to national, but could not be returned to their own countries for fear of their torture and abuse. There are still some 210 prisoners held at the Caribbean base.
Graham favors the establishment of a “national security court” to try detainees, but this idea is opposed by Pres. Obama. Another Graham idea reportedly involves creating standard procedures for addressing detainees' petitions for habeas corpus. This would give the government the responsibility of justifying continued detention – decisions now made by individual Federal judges.
Graham has been criticized by both Conservatives and Liberals for attempting to strike a deal with Obama. But, facing intense criticism from Congress, the White House is reportedly eager to demonstrate its commitment to a bipartisan solution.
The American Civil Liberties Union believes that “detaining individuals indefinitely without charging them with a crime or providing them a meaningful opportunity to challenge their detention is un-American and violates our commitment to due process and the rule of law.” In a statement, it said, “Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad.”
Since 9/11, there have been over 300 successfully completed terrorism-related trials in federal courts. Military Commissions have completed only three.
However, Senator Graham is urging the Administration to use Military Commissions to try Guantanamo detainees, thus pushing Attorney General Eric Holder to reverse his recent decision to try KSM and five other “high profile” suspects in Federal Court.
But human rights groups are pushing back against that idea. The American Civil Liberties Union (ACLU) believes that Military Commissions, despite some improvements through legislation, remain unworkable and should be shut down for good.
The organization’s position is being echoed by other civil libertarians. Daphne Eviatar, senior counsel with Human Rights First, told IPS it would be a mistake to try these defendants in a “new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”
And David Frakt, a professor at the Western State University College of Law and a lieutenant colonel in the U.S. Air Force Reserve JAG Corps, told IPS, “Military commissions are supposed to be a forum to try offences 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 of 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.”
He added, “The rules of evidence allowing coerced evidence to be admitted have been improved so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from them is still admissible.”
Frakt 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. Jawad was exonerated and returned home to Afghanistan in August 2009.
The prominent scholar who believes that Khalid Sheikh Mohammed (KSM), self-styled mastermind of the 9/11 terror attacks, should receive no trial is nonetheless advising Senator Lindsey Graham on a proposal to the White House to create “an overarching detainee framework” including a new approach to habeas corpus petitions and indefinite detention of “too dangerous to free” detainees without trial.
Benjamin Wittes, a senior fellow and research director in public law at the
Brookings Institution was the co-author last week of an oped published in the Washington Post proposing that a trial for KSM would be a waste of time and money. Wittes and his co-author, Jack Goldsmith, a former George W. Bush assistant attorney general who now teaches law at Harvard, called the trial of KSM “dispensable” and proffered that “the politically draining fight about civilian vs. military trials is not worth the costs.”
The Washington Post is reporting that Sen. Graham, a conservative Republican from South Carolina, has submitted draft legislation to the White House. The proposal was reportedly triggered by Graham’s efforts to reach a deal with the Obama Administration: Scrap the announced trial of KSM in the civilian justice system in exchange for the senator using his influence among congressional Republicans to drop their opposition to the closing of the U.S. navy prison at Guantanamo Bay, Cuba.
During his first week in office, President Obama announced that Guantanamo would be closed by January 1, 2010, but this deadline was missed. One of the main reasons was the unwillingness of countries – including the U.S. – to accept detainees even though they were no longer deemed to be a danger to national, but could not be returned to their own countries for fear of their torture and abuse. There are still some 210 prisoners held at the Caribbean base.
Graham favors the establishment of a “national security court” to try detainees, but this idea is opposed by Pres. Obama. Another Graham idea reportedly involves creating standard procedures for addressing detainees' petitions for habeas corpus. This would give the government the responsibility of justifying continued detention – decisions now made by individual Federal judges.
Graham has been criticized by both Conservatives and Liberals for attempting to strike a deal with Obama. But, facing intense criticism from Congress, the White House is reportedly eager to demonstrate its commitment to a bipartisan solution.
The American Civil Liberties Union believes that “detaining individuals indefinitely without charging them with a crime or providing them a meaningful opportunity to challenge their detention is un-American and violates our commitment to due process and the rule of law.” In a statement, it said, “Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad.”
Since 9/11, there have been over 300 successfully completed terrorism-related trials in federal courts. Military Commissions have completed only three.
However, Senator Graham is urging the Administration to use Military Commissions to try Guantanamo detainees, thus pushing Attorney General Eric Holder to reverse his recent decision to try KSM and five other “high profile” suspects in Federal Court.
But human rights groups are pushing back against that idea. The American Civil Liberties Union (ACLU) believes that Military Commissions, despite some improvements through legislation, remain unworkable and should be shut down for good.
The organization’s position is being echoed by other civil libertarians. Daphne Eviatar, senior counsel with Human Rights First, told IPS it would be a mistake to try these defendants in a “new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”
And David Frakt, a professor at the Western State University College of Law and a lieutenant colonel in the U.S. Air Force Reserve JAG Corps, told IPS, “Military commissions are supposed to be a forum to try offences 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 of 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.”
He added, “The rules of evidence allowing coerced evidence to be admitted have been improved so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from them is still admissible.”
Frakt 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. Jawad was exonerated and returned home to Afghanistan in August 2009.
Monday, March 22, 2010
Wittes, Goldsmith, and KSM: “Absurd,” “Cynical.”
By William Fisher
It’s been a few days now since Benjamin Wittes and Jack Goldsmith wrote their op-ed in the Washington Post calling the trial of Khalid Sheikh Mohammed “dispensable” and proffering that “the politically draining fight about civilian vs..... military trials is not worth the costs.”
Their proposal: “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for some time to come, continue to do the heavy lifting in incapacitating terrorists.”
Benjamin Wittes is a senior fellow and research director in public law at the
Brookings Institution. Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.
After all the kerfuffle and back-and-forthing concerning where KSM would be tried and by whom, the Wittes-Goldsmith approach seemed sufficiently outside the box to at least warrant some further exploration.
So I contacted some of the brainiest civil rights lawyers I know to ask their opinions. Here’s what some of them told me:
David Frakt is a Lt. Col. in the Air Force Reserve JAG Corps and a professor of law at Western State University College of Law. He was formerly a military defense counsel who challenged the legitimacy of Military Tribunals and won the release of a GITMO detainee and his repatriation to Afghanistan.
He told me, “Wittes and Goldsmith's solution would satisfy no one. A trial would serve a number of important functions other than simply providing a lawful basis for incarceration if convicted and sentenced. The American people deserve to know what happened on 9/11 and who was behind it. The families deserve an opportunity to see justice served. The accused deserve an opportunity to have their guilt proven, or establish their innocence.”
He added, “Nearly everyone agrees that this was one of the most monstrous single crimes ever committed. Whether one views KSM and his alleged co-conspirators as war criminals or simply mass murderers, there needs to be a criminal trial in some forum.”
Frakt’s point of view is echoed by most of those we contacted. For example:
Chip Pitts, president of the Bill of Rights Defense Committee, said, “Blinded by the fog of the so-called “war on terror,” it is not surprising that a misguided and complicit former Bush legal official and a non-lawyer apologist for the war paradigm would be so ready to walk away from the last vestiges of the rule of law, but a moment’s reflection by thoughtful disinterested parties should confirm that continuing the illegal, immoral, and counterproductive indefinite detention of accused al Qaeda members simply risks more lives by further diminishing the nation’s reputation and handing the terrorists yet another propaganda victory.”
He continued: “The absurd and cynical invocation by these individuals of the abominable mess they helped to create as justification for Obama to make an even bigger mess of things might suit their interests, but it only further dilutes the possibilities of our country restoring justice and effective national security. As the father of international law, Hugo Grotius, wrote in 1625, ‘No one readily allies himself with those in whom he believes that there is only a slight regard for law, for the right, and for good faith.’ These authors should be ashamed and silent: no person of reason wants any more of their ‘advice.’ ”
“The suggestion that the Obama administration shouldn’t even bother to try Khalid Sheikh Mohammed, the self-described mastermind of the September 11 terrorist attacks, and his alleged co-conspirators is appalling. It disregards the experience of the victims of that attack, who deserve to see justice done. It also disregards the national and historical importance of publicly trying and convicting the men who, if proven guilty, orchestrated the largest mass murder and most lethal terrorist attack ever committed on U.S. soil.”
And Daphne Eviatar, senior counsel with Human Rights First, told me: “Wittes and Goldsmith acknowledge that it would be a terrible idea for the administration to try these defendants in a new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer, then, is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”
Eviatar damns the WAPO piece with very faint praise, saying, “Still, Wittes and Goldsmith’s op-ed provides an important service: It highlights the shaky legal and moral basis of indefinite detention of any suspected terrorists charged with the killing of civilians on U.S. soil.”
Marjorie Cohn, president of the National Lawyers Guild, reminded me that “no trial” equates with “indefinite detention.”
She said, “While proposing an apparently pragmatic solution, Wittes and Goldsmith advocate an illegitimate process of dispensing with trials for these men. Holding people indefinitely without charge violates the
International Covenant on Civil and Rights, a treaty the United States
has ratified which makes it part of US law under the Supremacy Clause
of the Constitution. The Geneva Convention's procedure of holding
prisoners of war until the end of hostilities does not apply here, as
we are not involved in a "war"; terrorism is a tactic, not an enemy.”
She also reminds us that the presumption of innocence and the right to a trial “is enshrined in our Constitution; let's not dispense with them so cavalierly.”
Given the huge and as yet unresolved controversy generated by the question of where and by whom KSM should be tried, one can see how Goldsmith and Wittes might find it convenient to skip this quaint nicety altogether.
But take that step and we won’t have to wait long for the Al Qaeda propaganda machine to ramp up to full bore. Hear it now: "Those Americans, who think they’re so special because they follow the rule of law, are perfectly willing to throw their cherished Bill of Rights overboard whenever its convenient.”
Plus, we Americans would lose the considerable value of having KSM’s own testimony to confirm to the world that he is far too dangerous to ever be allowed back in the more or less civilized world.
Let us pray that Eric Holder and his boss find the cajones to hold their ground.
It’s been a few days now since Benjamin Wittes and Jack Goldsmith wrote their op-ed in the Washington Post calling the trial of Khalid Sheikh Mohammed “dispensable” and proffering that “the politically draining fight about civilian vs..... military trials is not worth the costs.”
Their proposal: “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for some time to come, continue to do the heavy lifting in incapacitating terrorists.”
Benjamin Wittes is a senior fellow and research director in public law at the
Brookings Institution. Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.
After all the kerfuffle and back-and-forthing concerning where KSM would be tried and by whom, the Wittes-Goldsmith approach seemed sufficiently outside the box to at least warrant some further exploration.
So I contacted some of the brainiest civil rights lawyers I know to ask their opinions. Here’s what some of them told me:
David Frakt is a Lt. Col. in the Air Force Reserve JAG Corps and a professor of law at Western State University College of Law. He was formerly a military defense counsel who challenged the legitimacy of Military Tribunals and won the release of a GITMO detainee and his repatriation to Afghanistan.
He told me, “Wittes and Goldsmith's solution would satisfy no one. A trial would serve a number of important functions other than simply providing a lawful basis for incarceration if convicted and sentenced. The American people deserve to know what happened on 9/11 and who was behind it. The families deserve an opportunity to see justice served. The accused deserve an opportunity to have their guilt proven, or establish their innocence.”
He added, “Nearly everyone agrees that this was one of the most monstrous single crimes ever committed. Whether one views KSM and his alleged co-conspirators as war criminals or simply mass murderers, there needs to be a criminal trial in some forum.”
Frakt’s point of view is echoed by most of those we contacted. For example:
Chip Pitts, president of the Bill of Rights Defense Committee, said, “Blinded by the fog of the so-called “war on terror,” it is not surprising that a misguided and complicit former Bush legal official and a non-lawyer apologist for the war paradigm would be so ready to walk away from the last vestiges of the rule of law, but a moment’s reflection by thoughtful disinterested parties should confirm that continuing the illegal, immoral, and counterproductive indefinite detention of accused al Qaeda members simply risks more lives by further diminishing the nation’s reputation and handing the terrorists yet another propaganda victory.”
He continued: “The absurd and cynical invocation by these individuals of the abominable mess they helped to create as justification for Obama to make an even bigger mess of things might suit their interests, but it only further dilutes the possibilities of our country restoring justice and effective national security. As the father of international law, Hugo Grotius, wrote in 1625, ‘No one readily allies himself with those in whom he believes that there is only a slight regard for law, for the right, and for good faith.’ These authors should be ashamed and silent: no person of reason wants any more of their ‘advice.’ ”
“The suggestion that the Obama administration shouldn’t even bother to try Khalid Sheikh Mohammed, the self-described mastermind of the September 11 terrorist attacks, and his alleged co-conspirators is appalling. It disregards the experience of the victims of that attack, who deserve to see justice done. It also disregards the national and historical importance of publicly trying and convicting the men who, if proven guilty, orchestrated the largest mass murder and most lethal terrorist attack ever committed on U.S. soil.”
And Daphne Eviatar, senior counsel with Human Rights First, told me: “Wittes and Goldsmith acknowledge that it would be a terrible idea for the administration to try these defendants in a new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer, then, is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”
Eviatar damns the WAPO piece with very faint praise, saying, “Still, Wittes and Goldsmith’s op-ed provides an important service: It highlights the shaky legal and moral basis of indefinite detention of any suspected terrorists charged with the killing of civilians on U.S. soil.”
Marjorie Cohn, president of the National Lawyers Guild, reminded me that “no trial” equates with “indefinite detention.”
She said, “While proposing an apparently pragmatic solution, Wittes and Goldsmith advocate an illegitimate process of dispensing with trials for these men. Holding people indefinitely without charge violates the
International Covenant on Civil and Rights, a treaty the United States
has ratified which makes it part of US law under the Supremacy Clause
of the Constitution. The Geneva Convention's procedure of holding
prisoners of war until the end of hostilities does not apply here, as
we are not involved in a "war"; terrorism is a tactic, not an enemy.”
She also reminds us that the presumption of innocence and the right to a trial “is enshrined in our Constitution; let's not dispense with them so cavalierly.”
Given the huge and as yet unresolved controversy generated by the question of where and by whom KSM should be tried, one can see how Goldsmith and Wittes might find it convenient to skip this quaint nicety altogether.
But take that step and we won’t have to wait long for the Al Qaeda propaganda machine to ramp up to full bore. Hear it now: "Those Americans, who think they’re so special because they follow the rule of law, are perfectly willing to throw their cherished Bill of Rights overboard whenever its convenient.”
Plus, we Americans would lose the considerable value of having KSM’s own testimony to confirm to the world that he is far too dangerous to ever be allowed back in the more or less civilized world.
Let us pray that Eric Holder and his boss find the cajones to hold their ground.
Families Appeal GITMO Deaths
By William Fisher
The families of two prisoners who died at the U.S. Navy Base at Guantánamo Bay, Cuba, are asking a Federal court to reconsider its ruling dismissing their lawsuit, which seeks to hold federal officials and the U.S. government accountable for their sons’ torture, arbitrary detention, and ultimate deaths.
According to their lawyers, the Center for Constitutional Rights (CCR), the families’ request is based on newly discovered evidence from four soldiers who describe a cover-up by the authorities and say they were ordered not to speak out. The soldiers’ accounts were reported in Harper’s Magazine in January.
The Pentagon maintains that the two men, along with a third prisoner, committed suicide in their cells in 2006. But their lawyers say the soldiers’ first-hand accounts “raise serious questions about the actual cause and circumstances of the deaths.” They charge that “their accounts strongly suggest that the men died as the result of torture at a ‘black site’ – a secret prison – within Guantánamo.
In a statement directed to U.S. President Barack Obama and American judicial authorities, Talal Al-Zahrani, father of one of the men who died that night, said, “Mr. President, the killing of my son in the hands of his guards and under the supervision of the administration of the detention center is a serious and gruesome crime. It is against all human values and norms, and whoever covers up this gruesome crime or obstructs the criminal and judicial investigations is a co-conspirator with those who have committed the crime itself.”
“It is not unusual in any society to find crime and criminals, but it is a catastrophe when a democratic society that raises the banner of defending human rights stays silent in the face of such a crime. Mr. President, neither you nor your government stand to gain anything by covering up this crime, unless you believe in the achievements of former President Bush and his Secretary of Defense Rumsfeld, and wish to share in their legacy,” Al-Zahrani said.
He added, “I would like to tell you that the reason hatred against America is spreading all over the world is because you are disregarding people’s feelings and showing contempt and disrespect for the lives of others. Too often you let criminals -- from powerful politicians and decision makers to low-level perpetrators -- get away with serious crimes. All these people are doing is damaging your reputation and the values you stand for.”
The district court granted a request by the government and 24 federal officials, including former Secretary of Defense Donald Rumsfeld, to dismiss the families’ case. The CCR says the court therefore “accepted the defendants’ argument that national security factors should bar the constitutional claims on behalf of the deceased, and that the alleged torture of the men, even if ‘seriously criminal,’ was within the officials’ ‘scope of employment,’ thus barring claims asserted under the Alien Tort Statute (ATS).”
The court also dismissed claims under the Federal Tort Claims Act (FTCA) for breaches of the officials’ basic duty of care toward the deceased and for the emotional distress suffered by the families, ruling that Guantanamo is a “foreign country” for the purposes of the act and thus outside the scope of its protection. The dismissal effectively left the families and their sons with no remedy for the violations they asserted again U.S. officials.
The ATS gives district courts jurisdiction of any civil action by an alien, committed in violation of the law of nations or a treaty of the United States. It allows U.S. courts to hear human rights cases brought by foreign citizens for conduct committed outside the U.S. The FTCA permits private parties to sue the United States in a federal court for acts committed by persons acting on behalf of the U.S.
The families’ request for the court to reconsider its dismissal of their claims is based on the accounts of four soldiers stationed at the base the night the men died. Human rights lawyer Scott Horton reported in Harper’s Magazine in January that the soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, “strongly suggest that the men were taken to a secret ‘black site’ at Guantánamo nicknamed ‘Camp No’ that night, and died at that site or from events that transpired there.”
The CCR said the undisclosed facility is thought to have been used by the Central Intelligence Agency (CIA) or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up they say was initiated by the authorities within hours of the men’s deaths. They say they were ordered by their superiors not to speak out.
Said CCR attorney Pardiss Kebriaei, “It took courage for these soldiers to come forward with information that the government had every intention of keeping secret, and the details that are emerging are disturbing to say the least. The families of these men should not be barred at the courthouse door without any further inquiry.”
A report prepared by the Seton Hall University School of Law concluded that the military’s investigation files “reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.”
Six prisoners have died at the Guantanamo facility since it was opened in 2002. In June 2009 Muhammad Ahmad Abdallah Salih, a 31-year-old Yemeni man detained since 2002became the sixth person to die at the base.
CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, the two men who died at Guantánamo in 2006, along with a third detainee, Mani Al-Utaybi of Saudi Arabia.
At the time of their deaths, Al-Zahrani and Al-Salami had been detained for more than four years without charge. Al-Zahrani was 17 at the time of his arrest.
CCR has organized and coordinated more than 500 pro bono lawyers across the country to represent Guantanamo detainees, former detainees, and their families.
The families of two prisoners who died at the U.S. Navy Base at Guantánamo Bay, Cuba, are asking a Federal court to reconsider its ruling dismissing their lawsuit, which seeks to hold federal officials and the U.S. government accountable for their sons’ torture, arbitrary detention, and ultimate deaths.
According to their lawyers, the Center for Constitutional Rights (CCR), the families’ request is based on newly discovered evidence from four soldiers who describe a cover-up by the authorities and say they were ordered not to speak out. The soldiers’ accounts were reported in Harper’s Magazine in January.
The Pentagon maintains that the two men, along with a third prisoner, committed suicide in their cells in 2006. But their lawyers say the soldiers’ first-hand accounts “raise serious questions about the actual cause and circumstances of the deaths.” They charge that “their accounts strongly suggest that the men died as the result of torture at a ‘black site’ – a secret prison – within Guantánamo.
In a statement directed to U.S. President Barack Obama and American judicial authorities, Talal Al-Zahrani, father of one of the men who died that night, said, “Mr. President, the killing of my son in the hands of his guards and under the supervision of the administration of the detention center is a serious and gruesome crime. It is against all human values and norms, and whoever covers up this gruesome crime or obstructs the criminal and judicial investigations is a co-conspirator with those who have committed the crime itself.”
“It is not unusual in any society to find crime and criminals, but it is a catastrophe when a democratic society that raises the banner of defending human rights stays silent in the face of such a crime. Mr. President, neither you nor your government stand to gain anything by covering up this crime, unless you believe in the achievements of former President Bush and his Secretary of Defense Rumsfeld, and wish to share in their legacy,” Al-Zahrani said.
He added, “I would like to tell you that the reason hatred against America is spreading all over the world is because you are disregarding people’s feelings and showing contempt and disrespect for the lives of others. Too often you let criminals -- from powerful politicians and decision makers to low-level perpetrators -- get away with serious crimes. All these people are doing is damaging your reputation and the values you stand for.”
The district court granted a request by the government and 24 federal officials, including former Secretary of Defense Donald Rumsfeld, to dismiss the families’ case. The CCR says the court therefore “accepted the defendants’ argument that national security factors should bar the constitutional claims on behalf of the deceased, and that the alleged torture of the men, even if ‘seriously criminal,’ was within the officials’ ‘scope of employment,’ thus barring claims asserted under the Alien Tort Statute (ATS).”
The court also dismissed claims under the Federal Tort Claims Act (FTCA) for breaches of the officials’ basic duty of care toward the deceased and for the emotional distress suffered by the families, ruling that Guantanamo is a “foreign country” for the purposes of the act and thus outside the scope of its protection. The dismissal effectively left the families and their sons with no remedy for the violations they asserted again U.S. officials.
The ATS gives district courts jurisdiction of any civil action by an alien, committed in violation of the law of nations or a treaty of the United States. It allows U.S. courts to hear human rights cases brought by foreign citizens for conduct committed outside the U.S. The FTCA permits private parties to sue the United States in a federal court for acts committed by persons acting on behalf of the U.S.
The families’ request for the court to reconsider its dismissal of their claims is based on the accounts of four soldiers stationed at the base the night the men died. Human rights lawyer Scott Horton reported in Harper’s Magazine in January that the soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, “strongly suggest that the men were taken to a secret ‘black site’ at Guantánamo nicknamed ‘Camp No’ that night, and died at that site or from events that transpired there.”
The CCR said the undisclosed facility is thought to have been used by the Central Intelligence Agency (CIA) or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up they say was initiated by the authorities within hours of the men’s deaths. They say they were ordered by their superiors not to speak out.
Said CCR attorney Pardiss Kebriaei, “It took courage for these soldiers to come forward with information that the government had every intention of keeping secret, and the details that are emerging are disturbing to say the least. The families of these men should not be barred at the courthouse door without any further inquiry.”
A report prepared by the Seton Hall University School of Law concluded that the military’s investigation files “reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.”
Six prisoners have died at the Guantanamo facility since it was opened in 2002. In June 2009 Muhammad Ahmad Abdallah Salih, a 31-year-old Yemeni man detained since 2002became the sixth person to die at the base.
CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, the two men who died at Guantánamo in 2006, along with a third detainee, Mani Al-Utaybi of Saudi Arabia.
At the time of their deaths, Al-Zahrani and Al-Salami had been detained for more than four years without charge. Al-Zahrani was 17 at the time of his arrest.
CCR has organized and coordinated more than 500 pro bono lawyers across the country to represent Guantanamo detainees, former detainees, and their families.
GITMO: Obama’s Crockery
By William Fisher
In 2008, the Supreme Court, in a landmark decision, ruled that prisoners at Guantanamo Bay had to right to challenge the basis for their detention. That decision – a major rebuke to the Administration of then-President George W. Bush – parted the seas for a flood of habeas corpus petitions.
And there is no sign that the flood will recede any time soon.
Since the court’s ruling – the case was known as Boumediene v. Bush –
42 habeas petitions have been decided in Federal court in Washington DC. Of these, 33 have been granted and nine have been denied. Most of these petitions were, in fact, filed before the Boumediene ruling. Lawyers representing GITMO detainees say hundreds of additional petitions are in the pipeline.
The High Court’s decision in Boumediene granted habeas rights to GITMO detainees, and also ruled the Military Commissions Act (MCA) of 2006 unconstitutional. But it provided no help to the judges who would be hearing these cases, and trying to thread their way between national security and tainted evidence
For example, the government’s case against one detainee seemed a sure thing. DOJ lawyers said he had traveled to Afghanistan, trained at an al Qaeda camp, stayed at a guesthouse reportedly run by terrorists, and fought at Tora Bora. Evidence against him came from his own words and from a fellow detainee.
The judge was not impressed. The court ruled that the government’s “informer” could not be relied on and the prisoner’s own testimony was suspect because it had been obtained through coercion.
This case is fairly typical. Federal judges – appointed by both Republican and Democratic Administrations – have been giving DOJ prosecutors some heavy migraines. And the headaches are likely to continue.
Numerous legal observers have remarked that this was one way the policies of the George W. Bush administration “shot us in the foot.” Prisoners who were subjected to Bush-era “enhanced interrogation techniques” were unlikely to be losers in federal courts.
There are currently about 200 detainees at Guantanamo Bay. Of these, about 90 are believed to be from Yemen, posing yet another problem: The administration has suspended repatriations to Yemen because of the activities of Al Qaeda in the Arabian Peninsula. The so-called Christmas-Day-Bomber, Umar Farouk Abdulmutallab, claims to have been trained in Yemen by this organization.
The DOJ says approximately 110 can be released – though their destinations remain unclear and/or are being negotiated with other governments. The Attorney General has said he wants to prosecute some 35 men in federal courts or before Military Commissions. That would leave about 50 the government considers too dangerous to be set free but where evidence is too dicey to stand up in court.
What happens when these 50 prisoners file their habeas corpus petitions, demanding to know the legal basis for their continued detention? The chances are the judges will order at least some of them to be set free.
But that immediately sets up another huge speed bump. Even if the government is prepared to comply with a court order to set a prisoner free, where is the prisoner to go?
In October 2008, a federal judge faced precisely that dilemma. He ordered the government to release into the United States a group of 17 Chinese Muslims held at Guantanamo.
At the U.S. District Court in Washington, Judge Ricardo M. Urbina said whatever authority the government possessed to detain the Uighurs – whom the government conceded were not enemy combatants but could not be returned to China for fear of potential persecution – had “ceased.”
Urbina said his order was based on the fact that the Uighurs’ detention had become effectively indefinite, that the government conceded they would not return to the battlefield, and that the government had provided no alternative grounds for detention.
He noted that the government’s “extensive diplomatic efforts” had yet to find a country willing to accept the Uighurs, and rejected the government’s argument that the Executive branched possessed authority to “wind-up” their detention.
The government appealed the ruling and the appeals court agreed with the government, whereupon the Uighurs’ lawyers asked the Supreme Court to review the case. The Justice Department claimed that since most of the Uighurs had since been transferred to other countries, the case was now moot; SCOTUS agreed and the court ordered the D.C. Circuit Court to take another look at the case -- testing federal judges’ powers to order Guantanamo Bay detainees to be released from custody.
But many of the approximately 50 “too dangerous to free” prisoners are likely to petition for habeas corpus and to present the courts with a similar dilemma: Trying to determine the reliability of the government’s evidence.
Was the evidence obtained through torture? And is the government producing a witness whose testimony is reliable?
Given the ubiquitous application of enhanced interrogation techniques – the very same that Vice President Cheney is so proud of – the likelihood is that coercion will be a factor in a large majority of situations coming before a judge.
And with all the built-in incentives GITMO provides to rat-out one’s fellow prisoners, it would not be surprising if the line of “jailhouse snitches” keeps getting longer.
Overlaying this panoply of legal headaches are two more:
First, if there are ever any trials of any GITMO prisoners, it is now unclear whether any will be held in Article 3 courts in the U.S. So cacophonous is the NIMBY outcry, particularly from Congresspersons, that it’s a 50-50 bet that the Obama administration will ultimately have to back off.
But civil libertarians aren’t likely to go with this decision quietly. David Frakt, a former Air Force defense lawyer for a GITMO prisoner, says relying solely on Military Commissions would “remove the option from the Executive Branch of trying suspected terrorists in Federal court, the most effective and most appropriate forum in which to try terrorist crimes. This is an unprecedented interference with the ability of the Executive branch to enforce the laws in the way it sees fit. Furthermore, 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.”
Second, the whole of the human rights advocacy community, a good chunk of the legal professoriat, and most members of Obama’s leftwing base, believe that military commissions should be scrapped because they represent a second-class justice system. They will do whatever they can to sabotage what they refer to as “these kangaroo courts.” They are equally apoplectic on the issue of indefinite detention. That solution, they say, makes us just like the enemy.
Some observers say the President can invoke his right under the Laws of War to indefinitely hold as “enemy combatants” people who are captured on the battlefield.
But many others take issue with that conclusion. They say the people who are being held at Guantanamo are not properly labeled “enemy combatants” because most were not actually members of a fighting force with which we are at war, and most were not captured on a “battlefield.”
Second, as Gabor Rona, International Legal Director of Human Rights First, told Truthout:
“The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the U.S. does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.”
On the other hand, Sens. John McCain and Joe Lieberman have just introduced legislation mandating that Military Commissions be used exclusively to try GITMO deteinees. Their legislation would also 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 recognised by the Supreme Court."
In other words, indefinite detention.
This is, perhaps, a hornet’s nest of problems that President Obama and his legal team may not have fully anticipated when, during the first week of his Presidency, he signed his executive order promising to close Guantanamo.
But the Pottery Barn is all his now and the rule is in effect.
This article was originally published inj Truthout.org
In 2008, the Supreme Court, in a landmark decision, ruled that prisoners at Guantanamo Bay had to right to challenge the basis for their detention. That decision – a major rebuke to the Administration of then-President George W. Bush – parted the seas for a flood of habeas corpus petitions.
And there is no sign that the flood will recede any time soon.
Since the court’s ruling – the case was known as Boumediene v. Bush –
42 habeas petitions have been decided in Federal court in Washington DC. Of these, 33 have been granted and nine have been denied. Most of these petitions were, in fact, filed before the Boumediene ruling. Lawyers representing GITMO detainees say hundreds of additional petitions are in the pipeline.
The High Court’s decision in Boumediene granted habeas rights to GITMO detainees, and also ruled the Military Commissions Act (MCA) of 2006 unconstitutional. But it provided no help to the judges who would be hearing these cases, and trying to thread their way between national security and tainted evidence
For example, the government’s case against one detainee seemed a sure thing. DOJ lawyers said he had traveled to Afghanistan, trained at an al Qaeda camp, stayed at a guesthouse reportedly run by terrorists, and fought at Tora Bora. Evidence against him came from his own words and from a fellow detainee.
The judge was not impressed. The court ruled that the government’s “informer” could not be relied on and the prisoner’s own testimony was suspect because it had been obtained through coercion.
This case is fairly typical. Federal judges – appointed by both Republican and Democratic Administrations – have been giving DOJ prosecutors some heavy migraines. And the headaches are likely to continue.
Numerous legal observers have remarked that this was one way the policies of the George W. Bush administration “shot us in the foot.” Prisoners who were subjected to Bush-era “enhanced interrogation techniques” were unlikely to be losers in federal courts.
There are currently about 200 detainees at Guantanamo Bay. Of these, about 90 are believed to be from Yemen, posing yet another problem: The administration has suspended repatriations to Yemen because of the activities of Al Qaeda in the Arabian Peninsula. The so-called Christmas-Day-Bomber, Umar Farouk Abdulmutallab, claims to have been trained in Yemen by this organization.
The DOJ says approximately 110 can be released – though their destinations remain unclear and/or are being negotiated with other governments. The Attorney General has said he wants to prosecute some 35 men in federal courts or before Military Commissions. That would leave about 50 the government considers too dangerous to be set free but where evidence is too dicey to stand up in court.
What happens when these 50 prisoners file their habeas corpus petitions, demanding to know the legal basis for their continued detention? The chances are the judges will order at least some of them to be set free.
But that immediately sets up another huge speed bump. Even if the government is prepared to comply with a court order to set a prisoner free, where is the prisoner to go?
In October 2008, a federal judge faced precisely that dilemma. He ordered the government to release into the United States a group of 17 Chinese Muslims held at Guantanamo.
At the U.S. District Court in Washington, Judge Ricardo M. Urbina said whatever authority the government possessed to detain the Uighurs – whom the government conceded were not enemy combatants but could not be returned to China for fear of potential persecution – had “ceased.”
Urbina said his order was based on the fact that the Uighurs’ detention had become effectively indefinite, that the government conceded they would not return to the battlefield, and that the government had provided no alternative grounds for detention.
He noted that the government’s “extensive diplomatic efforts” had yet to find a country willing to accept the Uighurs, and rejected the government’s argument that the Executive branched possessed authority to “wind-up” their detention.
The government appealed the ruling and the appeals court agreed with the government, whereupon the Uighurs’ lawyers asked the Supreme Court to review the case. The Justice Department claimed that since most of the Uighurs had since been transferred to other countries, the case was now moot; SCOTUS agreed and the court ordered the D.C. Circuit Court to take another look at the case -- testing federal judges’ powers to order Guantanamo Bay detainees to be released from custody.
But many of the approximately 50 “too dangerous to free” prisoners are likely to petition for habeas corpus and to present the courts with a similar dilemma: Trying to determine the reliability of the government’s evidence.
Was the evidence obtained through torture? And is the government producing a witness whose testimony is reliable?
Given the ubiquitous application of enhanced interrogation techniques – the very same that Vice President Cheney is so proud of – the likelihood is that coercion will be a factor in a large majority of situations coming before a judge.
And with all the built-in incentives GITMO provides to rat-out one’s fellow prisoners, it would not be surprising if the line of “jailhouse snitches” keeps getting longer.
Overlaying this panoply of legal headaches are two more:
First, if there are ever any trials of any GITMO prisoners, it is now unclear whether any will be held in Article 3 courts in the U.S. So cacophonous is the NIMBY outcry, particularly from Congresspersons, that it’s a 50-50 bet that the Obama administration will ultimately have to back off.
But civil libertarians aren’t likely to go with this decision quietly. David Frakt, a former Air Force defense lawyer for a GITMO prisoner, says relying solely on Military Commissions would “remove the option from the Executive Branch of trying suspected terrorists in Federal court, the most effective and most appropriate forum in which to try terrorist crimes. This is an unprecedented interference with the ability of the Executive branch to enforce the laws in the way it sees fit. Furthermore, 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.”
Second, the whole of the human rights advocacy community, a good chunk of the legal professoriat, and most members of Obama’s leftwing base, believe that military commissions should be scrapped because they represent a second-class justice system. They will do whatever they can to sabotage what they refer to as “these kangaroo courts.” They are equally apoplectic on the issue of indefinite detention. That solution, they say, makes us just like the enemy.
Some observers say the President can invoke his right under the Laws of War to indefinitely hold as “enemy combatants” people who are captured on the battlefield.
But many others take issue with that conclusion. They say the people who are being held at Guantanamo are not properly labeled “enemy combatants” because most were not actually members of a fighting force with which we are at war, and most were not captured on a “battlefield.”
Second, as Gabor Rona, International Legal Director of Human Rights First, told Truthout:
“The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the U.S. does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.”
On the other hand, Sens. John McCain and Joe Lieberman have just introduced legislation mandating that Military Commissions be used exclusively to try GITMO deteinees. Their legislation would also 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 recognised by the Supreme Court."
In other words, indefinite detention.
This is, perhaps, a hornet’s nest of problems that President Obama and his legal team may not have fully anticipated when, during the first week of his Presidency, he signed his executive order promising to close Guantanamo.
But the Pottery Barn is all his now and the rule is in effect.
This article was originally published inj Truthout.org
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