By William Fisher
Immigrants’ rights advocates are up in arms today over an apparent gaffe by a senior government official suggesting that immigration authorities would use a “quota system” to determine the number of people it would deport – followed by a “clarification” from higher-ups that appeared to confirm the quota approach.
The reference to the quota approach was contained in a memorandum written by James M. Chaparro, the director of ICE’s Detention and Removal Operations (DRO), part of the Department of Homeland Security (DHS). It directed DRO officers nationwide to boost deportation numbers, make maximum use of detention and detain more people.
The ACLU and a number of immigration groups met earlier this week with ICE Assistant Secretary John Morton and his senior staff to discuss the reported quota policy and DRO priorities. At the meeting, Morton denied the use of quotas, stated his commitment to work together in a “spirit of candor and transparency” and asked to be “judged on the record, not on rumors.”
But when asked how ICE arrived at its goal deporting at least 400,000 people this fiscal year, Morton said ICE had deported 387,000 individuals last fiscal year and needed to increase this number because Congress had given the agency increased resources.
And, in recent testimony before Congress, Morton said ICE intends to reduce the average length of stay of detainees in custody to allow ICE to remove a higher number of aliens. “Recently, we have taken steps to reduce the average length of stay from 33.5 days as of January 2010 to 28 days by FY 2011. This efficiency is increasingly important as the Secure Communities program leads to the identification of more criminal aliens,” he said.
The American Civil Liberties Union (ACLU), said in a statement, “These enforcement priorities are in direct contradiction with those set forth by Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Assistant Secretary John Morton who have both repeatedly testified, for much of the past year, that ICE’s priority is the deportation of dangerous criminal offenders.”
The group called on leaders in Congress and in ICE to establish transparent immigration enforcement and detention policies that respect the rule of law and constitutional values.
Mary Giovagnoli, director of the Immigration Policy Center, an arm of the American Immigration Council, told IPS, “The idea of deportation by quota is disappointing. It is sad to see ICE falling into the trap of measuring success by the numbers of people detained and removed.”
That sentiment was echoed by Judy Rabinovitz, Deputy Director of the ACLU Immigrants’ Rights Project. She said, “ICE should not be arresting people just to fill detention beds.”
Giovagnoli added, “DHS is operating on borrowed time. It is amassing a history of failed enforcement initiatives.”
“This is unsound government policy and an imprudent use of American taxpayers’ money that can very easily lead to civil liberties abuses,” said Joanne Lin, ACLU Legislative Counsel, who attended the DHS meeting.
“Immigration enforcement practices should be tied to the needs and demands of America, not driven by arbitrary numerical goals set by ICE. The preoccupation with reaching the number 400,000 has placed intense pressure on all corners of ICE to step up immigration enforcement operations. The ACLU is very concerned that ICE agents, in the name of meeting specific numerical goals, will feel pressured to cut corners and improperly target people who look ‘foreign’ for stops and interrogations.”
Another immigrants’ advocate, Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, said, “ICE has a serious credibility problem as they continue to say one thing while doing another. ICE Assistant Secretary John Morton can not effectively lead an agency when he doesn't know what his field representatives are doing or when his subordinates are delivering messages directly at odds with the purported goals of the organization and the President.”
The Chaparro memo, he said, “is only the latest in a series of agency mishaps that have undermined the administration's credibility on immigration enforcement policy.”
And in Washington, a coalition of immigrant rights groups has demanded the ouster of the nation's top immigration official, charging that underlings at Immigration and Customs Enforcement were thwarting Obama administration policy by setting a quota on deportations.
"The reality is that ICE has gone rogue and needs to be reined in with dramatic action," said Deepak Bhargava, executive director of the Washington-based Center for Community Change. "The agency charged with enforcing the nation's immigration laws is systematically deceiving the president and the American public."
Thursday, April 01, 2010
Wednesday, March 31, 2010
IMMIGRATION DETENTION ABUSES CONTINUE
By William Fisher
More abuses in the US immigration detention system came to light last week when it was revealed that two mentally disabled men continue to be held in detention while facing possible deportation for criminal convictions despite having already served their time and two other immigrants have been held for more than two years while pursuing legal challenges to deportation.
The two mentally disabled immigrants, both Mexicans, are facing deportation for criminal assault convictions for which they have already served their time. According to separate lawsuits filed in federal court, they continue to be held in detention facilities in violation of their constitutional rights.
Their lawyers said Jose Franco-Gonzalez, 29, of Costa Mesa and Guillermo Gomez-Sanchez, 48, of San Bernardino, “have languished in detention facilities for years because authorities deemed them mentally incompetent.” “Their deportation cases were closed in 2005 and 2006 and the men have since been forgotten, shuttled through a network of jails, psychiatric hospitals and detention centers.”
"This represents a massive failure on the part of our immigration system to create procedures to deal with individuals with disabilities," said attorney Talia Inlender of Public Counsel, one of a coalition of legal advocates, including the American Civil Liberties Union of Southern California, which filed the habeas corpus petitions last week.
ICE attorneys have argued that the law requires the men to continue to be detained because of their crimes.
The men's attorneys said their clients have served their time and should be released. Gomez is a legal resident, and Franco's family -- his parents are legal residents -- has a pending petition that would allow him to apply for a green card.
The men still could face deportation. But their families said the men would be unable to care for themselves in Mexico because of their mental conditions.
Franco, who has moderate mental retardation, was convicted and served a year in jail on an assault with a deadly weapon charge for throwing a rock during a fight between rival gangs, his attorneys said. He reportedly doesn't know his birth date or how to tell time, and has an IQ of about 55.
Gomez, who has paranoid schizophrenia, served one year of a two-year sentence for a 2004 assault conviction stemming from a scuffle over tomatoes he picked without permission. He has previous convictions, including for battery against a police officer, which his attorneys have attributed to his mental illness.
In another immigration development, Immigration and Customs and Enforcement (ICE) in Harrisburg, Pennsylvania, released two immigrants who had been subjected to prolonged immigration detention while pursuing legal challenges to deportation after a court ruled that their continued detention without bond hearings was unlawful. Rather than proceed with bond hearings for the detainees.
Released were Elliot Grenade, a lawful permanent resident from Trinidad and Tobago, and Alexander Alli, a lawful permanent resident from Ghana, without requiring them to post any bail – Alli under minimal reporting requirements and Grenade under electronic monitoring. The two men are represented by the American Civil Liberties Union, the ACLU of Pennsylvania and Pepper Hamilton LLP.
The two men had been detained for over two and a half years and a year and a half, respectively.
The men’s lawyer, Farrin Anello of the American Civil Liberties Union (ACLU), told IPS, “Once the court ruled that our clients were entitled to bond hearings at which the immigration agency would bear the burden of justifying their continued detention, the agency agreed to release them on conditions of supervision. It is a relief that the agency finally acknowledged that their detention was unnecessary, but by denying them any bond hearing prior to the court’s ruling, the agency subjected our clients to years of separation from their families, all at taxpayers’ expense.”
She added, “"Under the mandatory detention law, the government has regularly argued that individuals with minor criminal convictions can be detained for long periods of time while fighting the government’s attempts to deport them, without ever having a bond hearing at which a court considers whether their detention is necessary. But in this case, the court ruled that because of due process concerns, the law does not allow for lengthy detention without such a hearing.”
The ACLU filed a class action lawsuit on May 27, 2009, charging that the government is violating the law by incarcerating people for prolonged periods of time, sometimes for years, while they fight their immigration cases, without providing them with the most basic element of due process — a custody hearing to determine if their prolonged detention is justified.
Attorney Anello told IPS that the ACLU plans to appeal the court's August 2009 decision denying permission to bring this case as a class action “in light of the thousands of immigrants who are detained without hearings.”
In yet another development, the Washington Post has reported that immigration authorities have set quotas for agents that incentivize them to deport non-criminal undocumented non-citizens.
A spokesman for the advocacy group Reform Immigration FOR America (RIFA) said, “This directly contradicts stated White House and administration goals of focusing enforcement efforts primarily on those who have dangerous or violent criminal backgrounds.”
On February 22, James Chaparro, Head of ICE Detention and Removal Operations issued a memo to field agents indicating that the agency had decided to implement a quota system for field agents to boost the number of deportations "with a 'surge' in efforts to catch illegal immigrants" whose only violation was related to immigration or visa applications or reentering the United States after being deported."
RIFA said this was at odds with statements from the President and Secretary [of Homeland Security, Janet] Napolitano whose purported enforcement and security goals are to focus deportation efforts on dangerous or violent criminals. To explain the contradiction, an agency spokesman indicated that Chaparro's memo was "inconsistent" with the administration's point of view and inconsistent with Secretary Napolitano. Adding to the confusion, Chapparro later issued a 'clarifying' memo that did not rescind or abandon the quota system he referenced.
More abuses in the US immigration detention system came to light last week when it was revealed that two mentally disabled men continue to be held in detention while facing possible deportation for criminal convictions despite having already served their time and two other immigrants have been held for more than two years while pursuing legal challenges to deportation.
The two mentally disabled immigrants, both Mexicans, are facing deportation for criminal assault convictions for which they have already served their time. According to separate lawsuits filed in federal court, they continue to be held in detention facilities in violation of their constitutional rights.
Their lawyers said Jose Franco-Gonzalez, 29, of Costa Mesa and Guillermo Gomez-Sanchez, 48, of San Bernardino, “have languished in detention facilities for years because authorities deemed them mentally incompetent.” “Their deportation cases were closed in 2005 and 2006 and the men have since been forgotten, shuttled through a network of jails, psychiatric hospitals and detention centers.”
"This represents a massive failure on the part of our immigration system to create procedures to deal with individuals with disabilities," said attorney Talia Inlender of Public Counsel, one of a coalition of legal advocates, including the American Civil Liberties Union of Southern California, which filed the habeas corpus petitions last week.
ICE attorneys have argued that the law requires the men to continue to be detained because of their crimes.
The men's attorneys said their clients have served their time and should be released. Gomez is a legal resident, and Franco's family -- his parents are legal residents -- has a pending petition that would allow him to apply for a green card.
The men still could face deportation. But their families said the men would be unable to care for themselves in Mexico because of their mental conditions.
Franco, who has moderate mental retardation, was convicted and served a year in jail on an assault with a deadly weapon charge for throwing a rock during a fight between rival gangs, his attorneys said. He reportedly doesn't know his birth date or how to tell time, and has an IQ of about 55.
Gomez, who has paranoid schizophrenia, served one year of a two-year sentence for a 2004 assault conviction stemming from a scuffle over tomatoes he picked without permission. He has previous convictions, including for battery against a police officer, which his attorneys have attributed to his mental illness.
In another immigration development, Immigration and Customs and Enforcement (ICE) in Harrisburg, Pennsylvania, released two immigrants who had been subjected to prolonged immigration detention while pursuing legal challenges to deportation after a court ruled that their continued detention without bond hearings was unlawful. Rather than proceed with bond hearings for the detainees.
Released were Elliot Grenade, a lawful permanent resident from Trinidad and Tobago, and Alexander Alli, a lawful permanent resident from Ghana, without requiring them to post any bail – Alli under minimal reporting requirements and Grenade under electronic monitoring. The two men are represented by the American Civil Liberties Union, the ACLU of Pennsylvania and Pepper Hamilton LLP.
The two men had been detained for over two and a half years and a year and a half, respectively.
The men’s lawyer, Farrin Anello of the American Civil Liberties Union (ACLU), told IPS, “Once the court ruled that our clients were entitled to bond hearings at which the immigration agency would bear the burden of justifying their continued detention, the agency agreed to release them on conditions of supervision. It is a relief that the agency finally acknowledged that their detention was unnecessary, but by denying them any bond hearing prior to the court’s ruling, the agency subjected our clients to years of separation from their families, all at taxpayers’ expense.”
She added, “"Under the mandatory detention law, the government has regularly argued that individuals with minor criminal convictions can be detained for long periods of time while fighting the government’s attempts to deport them, without ever having a bond hearing at which a court considers whether their detention is necessary. But in this case, the court ruled that because of due process concerns, the law does not allow for lengthy detention without such a hearing.”
The ACLU filed a class action lawsuit on May 27, 2009, charging that the government is violating the law by incarcerating people for prolonged periods of time, sometimes for years, while they fight their immigration cases, without providing them with the most basic element of due process — a custody hearing to determine if their prolonged detention is justified.
Attorney Anello told IPS that the ACLU plans to appeal the court's August 2009 decision denying permission to bring this case as a class action “in light of the thousands of immigrants who are detained without hearings.”
In yet another development, the Washington Post has reported that immigration authorities have set quotas for agents that incentivize them to deport non-criminal undocumented non-citizens.
A spokesman for the advocacy group Reform Immigration FOR America (RIFA) said, “This directly contradicts stated White House and administration goals of focusing enforcement efforts primarily on those who have dangerous or violent criminal backgrounds.”
On February 22, James Chaparro, Head of ICE Detention and Removal Operations issued a memo to field agents indicating that the agency had decided to implement a quota system for field agents to boost the number of deportations "with a 'surge' in efforts to catch illegal immigrants" whose only violation was related to immigration or visa applications or reentering the United States after being deported."
RIFA said this was at odds with statements from the President and Secretary [of Homeland Security, Janet] Napolitano whose purported enforcement and security goals are to focus deportation efforts on dangerous or violent criminals. To explain the contradiction, an agency spokesman indicated that Chaparro's memo was "inconsistent" with the administration's point of view and inconsistent with Secretary Napolitano. Adding to the confusion, Chapparro later issued a 'clarifying' memo that did not rescind or abandon the quota system he referenced.
Saturday, March 27, 2010
Practical Immigration Solutions
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.”
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.”
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.
Subscribe to:
Posts (Atom)
