By William Fisher
France is now poised to enact legislation making it illegal to wear the burqa (full body covering) and the niqab (face veil). And a growing number of European countries have already passed or are well on the way to passing similar legislation.
French President Nicolas Sarkozy, who is promoting such a ban in his country, says bluntly: "The burqa has no place in France."
Yet, while the anti-burqa frenzy sweeps Europe, the targets of these measures seem virtually invisible. It is estimated that a couple of hundred women in Belgium wear a full veil. In France, one study estimated that there are 1,900 burqa wearers in a Muslim population of five million.
European public policy makers are using the idea of an enforced dress code as a piece of social engineering, trying to hasten the assimilation of Muslims into the general population. Those opposed to this policy contend that assimilation doesn’t happen this way. The result of the ban, they say, will not make them more European; it will only make Europe less free.
With that background, I was interested to learn what my (largely American) readers thought about this issue. So, to a largish but handpicked list (attempting some kind of balance), I emailed the following question:
“France is about to pass a law banning the wearing of the burqa (full body covering) and the niqab (face veil). Proponents of this measure claim the legislation strikes a blow for women's freedom by allowing them to cast off garb they have been forced to wear against their will. Others say women who want to wear these items will now have no choice.
“The religious issue complicates the situation further. Some Muslims feel that these items of clothing are part of a religious obligation; others deny that the Koran makes dress mandatory.
“I'd like to know how you feel. Does the proposed new law help or hinder the rights of Muslim women?”
I got a goodly number of responses. They broke down into four main categories: those opposing the ban outright; those favoring the ban; those who thought the issue was none of the government’s business; and the outliers – people who suggested off-the-beaten-track solutions.
Readers who felt that such a ban would impede the rights of Muslim women who want to wear such clothing was by far the largest group of respondents. But they often reached their conclusions after a lot of on-the-one-hand-on-the-other-hand rabbinical angst.
Typical responses from this group:
“It seems to me that the costumes are an integral part of freedom of religion (speech) as the wearing of orthodox Jewish garb, nuns habits, or even justices use of robes. It is all part of freedom of expression. Even the question infers that such repression is justified by the benefits that may derive from such prohibitions. The issue of women’s freedom to shed such costumes is a separate one and yet another justification for holding sacrosanct the civil and human rights to freedom of and from religion and politics.”And another reader: “I'm assuming that all Muslim women are not alike, but if I had to make a choice, I'd say that the mandate impedes the rights of Muslim women who want to wear such clothing.”
And another: “I am terribly conflicted on this issue. On the one hand, I hate these items of dress because they seem to keep women in a subservient position. It also sets them apart from other women whose dress is conventional. Often people see clothing of this sort and distrust the person. On the other hand, religious garb is typical of many religions. Catholic women wearing head coverings in church, Jewish men wearing hats in temple, and you know the rest. Do those practices need to be outlawed? It seems to me as though it should be all or nothing.”
And another: “Okay, my conclusion is that if a woman should choose to wear it, it's okay. If she's forced to wear it, it isn't. How do you legislate that?”
And yet another: “My opinion as a liberated woman is that: Sounds like state-sanctioned racism to me. Will they next start banning turbans or yarmulkes? Will orthodox Jewish women not be able to cover their heads with scarves or wigs? Will they be forced to conform to contemporary French fashions? I understand that the intent is good. But I also understand that it will effectively eliminate these women's ability to choose. In my opinion, a civilized society should respect cultural differences. This law is a newfound fascism turned on its head and blinded by a contemporary "niqab."
Another group favored the ban, another position that garnered a sizable minority.
As one reader in this group put it, “It's quite possible (though hard for me to believe), that there are women who actually want to be invisible, but they are better off learning to live - and dress - as part of society. Moreover, some people claim it's a security issue, if you are going to throw a bomb what better way than to be all covered up? So I think it goes beyond a civil rights issue. Only very radical fundamentalist Muslims claim it is a religious obligation mandated by the Koran, by the way.”
Other responses:
“National security is at stake with burqas and niqabs. They conceal identity and conceivably suicide weapons. If a woman wants to dress in them, then she can go to countries where they are accepted.”
And from another reader: “If they want to live in a country for which this is not the custom, then they have to conform to the local culture. Muslim women and their spouses are free to return to the country they came from. I don't see this as France's problem. Their problem is if concealing of identity and weapons causes challenges to unknown innocent people.”
And another: “I would be against the law, except for cases of national security. There is no way government should dictate how to dress or undress. However when it is an issue of identification the dress should come off.”
And another: It's a difficult issue, but on balance I agree with the proposed ban. It's quite possible (though hard for me to believe), that there are women who actually want to be invisible, but they are better off learning to live - and dress - as part of society. Moreover, some people claim it's a security issue, if you are going to throw a bomb what better way than to be all covered up? So I think it goes beyond a civil rights issue. Only very radical fundamentalist Muslims claim it is a religious obligation mandated by the Koran, by the way.”
And finally: “If there is no definitive religious mandate, it would seem reasonable for a government to invoke a dress code in the same way that governments prohibit public nudity or covering the face with ski masks or nylon stockings upon while sauntering down the street toward a bank while carrying an AK-47 assault rifle as an elegant accessory.”Then there was a third group, also a sizable minority, which felt this was none of the government’s business.
One reader put it this way: “France's proposed law could help the rights of those women who oppose the items of dress, but take away the rights of those who want to respect and honor their tradition. I don’t know France’s motivation behind this. If hidden weapons have become an issue then it might be a strategy to seriously consider. However, if it’s to free women of the garb, I don’t think that’s the state’s place. Whether or not the Koran makes the dress mandatory is irrelevant since it’s not the state’s role to interpret the Koran, and since most religious sects have a range of interpretations of their sacred writings. This is a religious and cultural matter which those who oppose it should pursue as such; that’s what “movements” are for. The State should keep its hands off.”
And from another reader: “This question is at the heart of our future. Where, when and how does one culture impose its values on another? At what line? We may think that the wearing of the burqa and the niqab delegates women to the dark shadows of life, obliterating their existence in domesticity. But is it our--or the French government's-- business? Whose business is it? “
And yet another: “Anything so rigid in ANY direction is bound to trample on someone's rights. I don't see why this law needs to be in effect at all....seems like choice is the way to go here. But there is a lot of background, I'm sure, that I am totally unaware of in this case.”
And another: “I think it isn't our business what these people want to wear. But when I taught in Spanish Harlem the boys who didn't want to take their hats or jackets off -- there was the suggestion that it had to do with being Muslim -- bothered me. I felt they didn't want to be where they were...learning now to be in a foreign culture."
And a final comment, treasured for its brevity: “Is it the place of a national government to impose a dress code?”
Then there were the inevitable outliers.
One of them opposed wearing religious garb of any faith. He said, “ From a purely non-sectarian point of view, I would say that the wearing of the burqa and niqab hurts women, especially if they are forced to wear them against their will. However, it is my understanding that many Muslim women (especially those in western countries) that choose to wear those garments and therefore they feel it is a choice that they are consciously making. In terms of women's rights, however, I am sure that there are many other restrictive measures that crush women's rights; restrictions that are probably far more egregious and harmful. If it were up to me -- and I were king -- there would be no public displays of religious vestments whatsoever, but hey, that's just me.”
Another reader chimed in with a Solomonic question. He said, “Of course, if wearing burqas and niqabs is, indeed, mandated by religion, the decision would have to turn on weighing the balance of religious freedom and the public good. And who is really qualified to render such a judgment?
And yet another reader suggested that burqas and niqabs be “grandfathered” into the laws that are passed. He said, “I am always for a free decision based on all relevant and current information. Those entering France when these garments were allowed should be free to continue--all new entrants should be subject to then existing laws. However, any government can impose sumptuary laws (tobacco prohibition) on everyone (without discrimination) which they consider benefit society; those disagreeing can appeal to the courts.”
What are we to take away from these comments? First, we need a disclaimer: This was certainly not a scientific survey. Second, the sample was much too small to qualify as a credible base. Third, many of my readers, it is probably safe to say, are known to have a built-in bias toward the Left. And it’s a fair bet that most of my readers are highly educated, with advanced university degrees.
Finally, it seems to me that most of my readers’ comments are conditioned to a greater or lesser extent by the events of 9/11 and the whole issue national security. Some respondents made that caveat explicit: Are burqas going to be used to secret suicide vests?
(Personally, I would be more freaked by the potential loss of peripheral vision by a car driver with a niqab.)
But I think most national security experts would tell you that trying to chase down every burqa in town won’t necessarily turn up more suicide vests, only more irritated Muslim women complaining about being racially profiled.
That said, it seems to me that the French Government, and all the other European Governments who are considering the dress code issue, are simply trying to eliminate that big slice of its population that’s “not like us.” They are attempting to achieve instant homogeneity by wardrobe. But the history of immigration tells us this is not the way people get assimilated.
The history of immigrant assimilation into our own country may not be the best example, simply because it is our own country, where many things have worked differently from their European counterparts.
Legal immigration into the U.S. was accompanied by a great deal of we’ll-let-you-be second-class-citizens attitudes, we’ll-give-you-the-jobs-no-one-else-wants-to-do work. And, yes, there was conflict not only between immigrants and non-immigrants, but also among immigrants from different parts of the world.
These new Americans cleaned our houses, took care of our children, and picked the fruit and vegetables we put on our tables. And they got paid less for doing more.
In other words, immigrants were the victims of institutionalized greed. Most began in poverty and improved their condition gradually by buying and selling among themselves – in their ghettos. Eventually, a few began to accumulate wealth. They became the ghetto leaders. Then they broke out of the ghettos and became entrepreneurs.
And, for many, although they still clung to some old customs, always remembered the music, and spoke some of the old country’s languages, their principal aspiration was always to be 110 per cent Americans. Baseball. Apple pie. The Whole Nine Yards. This evolution took generations.
So it is and will be for future generations of immigrants. You can see the full metamorphosis if you visit the Muslim neighborhoods of places like Dearborn, Michigan.
People who live there – part of the several million Muslims who are proud to
call themselves Americans – remember where they came from. The elders may even remember the discrimination and the second-class citizenship they experienced – some of which lingers to this day, thanks to the Islamophobia that followed 9/11.
But, by and large, these people have become the kinds of fully assimilated Americans who would warm the cockles even of fear-mongering nativists like Tom Tancredo and Steve King.
Could this happen in Europe? Well, I guess anything’s possible. But on the Continent, it faces a major obstacle: Europe does not honor diversity; it honors a homogeneity that can’t be achieved in the 21st Century.
At the core of Americans, I still find that most people buy into the narrative we invented of improving ourselves and our country by celebrating the differences among and between our people.
What the so-called anti-immigrant forces want is an instant replay of Ellis Island. They want immigrants to come to our country legally. That’s not so far-fetched. It’s the duty of every sovereign country. But one of the problems with that construct is that, for the most part, the people who passed through Ellis Island looked pretty much like the rest of us. There may have been Mediterranean men who looked Latino – but back then, we didn’t fear Latinos. And there were certainly no women in burqas or hiqabs!
In any event, people who really know about immigration tell us that banning burqas and hiqabs will be about as effective in controlling border traffic as the fences we’ve built.
Getting this job done will take nothing less than CIF – Comprehensive Immigration Reform. CIF that puts illegals on a path to citizenship, that lets hard-working people do the jobs only hard-working people would want to do, that regulates the numbers and types of immigrants we wish to welcome, that treats immigrant detainees humanely, and that takes a big whack at employers who use wink-and-a-nod personnel practices to hire people who are in this country illegally because it saves them money.
That sounds like something we could actually do!
But at the same time, there are ominous portents of things to come taking place among our neighbors to the North. Quebec has recently tabled a new law, Bill 94, which will ban the niqab — or any face cover — when extending and receiving public services in such institutions as courts, hospitals, schools, and licensing bureaus.
Could this be the beginning of the slippery slope for the Western Hemisphere?
Having sounded that alarm bell, I have to say that whether or not there’s a burqa ban in Europe, or in Canada, or even in America, we’re dealing with a sideshow, a symptom. The woman who really wants to wear these garments isn’t going to change because she’s told they’re banned. She’s just going to get angrier and less assimilated.
So, until they find the smarts and the courage to come up with a lot more holistic and robust approach to immigration, governments should just get out of the way.
Thursday, May 20, 2010
Sunday, May 16, 2010
An Open Letter To Arizona Senator Sylvia Allen
By William Fisher
Dear Senator Allen:
Thanks for publishing your oped in the Austin Capital Times to explain SB 1070, Arizona’s new immigration law. Frankly, I think some of the rhetoric applied to this new measure has managed to generate a lot of heat but not much light. Some of the knee-jerk Arizona-bashers among us just haven’t caught up with your side of the story yet.
On the other hand, I think it’s important that we all agree on the basic facts at play here. What would we ever do if Senator Daniel Patrick Moynihan had never said, “We’re all entitled to our own opinions but not to our own facts.”
You write that “Rancher Rob Krantz was murdered by the drug cartel on his ranch a month ago. You say the people who live within 60 to 80 miles of the Arizona/Mexico Border have for years been terrorized and have pleaded for help to stop the daily invasion of humans who cross their property. One Rancher testified that 300 to 1200 people a DAY come across his ranch vandalizing his property, stealing his vehicles and property, cutting down his fences, and leaving trash. In the last two years he has found 17 dead bodies and two Koran bibles.”
“Another rancher testified that daily drugs are brought across his ranch in a military operation. A point man with a machine gun goes in front, 1/2 mile behind are the guards fully armed, 1/2 mile behind them are the drugs, behind the drugs 1/2 mile are more guards… One man told of two illegal's (sic) who came upon his property one shot in the back and the other in the arm by the drug runners who had forced them to carry the drugs and then shot them.”
I have no doubt that, from your perspective, all your statements are true and un-challengable. And one can’t help but feel great compassion for the folks who suffered these losses.
But let me tell you where I think there are other facts that also need to be understood.
These facts are that crime rates and violence in Arizona are down, not up. Federal statistics show that in fact violent crime in your state was lower in 2008 than it has been since the early 1970s. In fact, violent crime and property crime have fallen consistently in all the border states over the last several years. The Mayor of Hidalgo, Texas, said that in his 20 years as mayor there has not been a single homicide, and there was only one kidnapping, committed by a registered sex offender from California.
But there’s an even more significant context here. We all need to be careful to distinguish between cartelistas in the drug trade and ordinary Mexicans who are coming to our country to work and earn money to send home. The druggistas are vicious thugs who are breaking our people and our laws. They need to be caught. But that’s not going to be easy so long as it’s our own appetite for the toxins they peddle that keeps them in business and doing very nicely, thanks very much.
(Maybe when we have ore time, we can have a discussion about the impact that drug legalization might have on the border problem, but that’s for another day.)
You say that “The border patrol is not on the border. They have set up 60 miles away with checkpoints that do nothing to stop the invasion. They are not allowed to use force in stopping anyone who is entering. They run around chasing them, if they get their hands on them then they can take them back across the border.”
Well, Senator, you are absolutely right that the Border Patrol is not on the border. The fact is that their checkpoints are invasive law enforcement roadblocks that do not improve security but do infringe on the civil rights of border residents.
You write that Federal prisons have over 35% illegal's (sic) and 20% of Arizona prisons are filled with illegals. In the last few years 80% of our law enforcement that have been killed or wounded have been by an illegal.
Here, I have to tell you the percent of illegals you say is in jails or committing crimes is simply wrong. It’s possible that prisons have 35% non-citizens, but that’s not the same as illegal immigrants. And I’m sorry to have to tell you that your claim about injury to law enforcement being 80% caused by illegal immigrants is completely spurious. It’s your own fact!
You say, “the Federal Government has refused for years to do anything to help the border states. We have been over run and once they are here we have the burden of funding state services that they use. Education costs have been over a billion dollars. The healthcare cost billions of dollars. Our State is broke, $3.5 billion deficit and we have many serious decisions to make. One is that we do not have the money to care for any who are not here legally. It has to stop.”
I think most immigration experts and reliable economists would agree that Arizona’s fiscal problems are not the result of unlawful entries. In fact, most unlawful entries are of migrants seeking work, contributing a net gain to Arizona’s economy. Contrary to widespread misunderstanding, most undocumented workers pay taxes, including sales taxes and income taxes, which are often withdrawn before the worker is paid. Furthermore, I am not an economist, but it seems more reasonable to suggest that Arizona’s fiscal problems are much more a result of a national and global economic meltdown.
You say, “The border can be secured. We have the technology we have the ability to stop this invasion. We must know who is coming and they must come in an organized manner legally so that we can assimilate them into our population and protect the sovereignty of our country. We are a nation of laws. We have a responsibility to protect our citizens and to protect the integrity of our country and the government which we live under.”
You go further. You say you “would give amnesty today to many, but here is the problem, we dare not do this until the Border is secure. It will do no good to forgive them because thousands will come behind them and we will be over run to the point that there will no longer be the United States of America but a North American Union of open borders. I ask you what form of government will we live under? How long will it be before we will be just like Mexico,, Canada or any of the other Central American or South American countries? We have already lost our language, everything must be printed in Spanish also. We have already lost our history it is no longer taught in our schools. And we have lost our borders.”
I think what I’d most like to get across to you is that reforming the immigration system and creating legal avenues for migration is the way to improve border security and traffic flows at the border. I can’t believe that you think that “securing the border first” means that there will be absolutely zero crime or unlawful entries. Heck, this is an expectation for law enforcement that cannot be serious, given that all communities have criminal incidents. To be perfectly frank, Senator, I find this a shortsighted and reactionary response to an over-hyped perception of border violence that is not borne out by evidence.
Now, here’s the part of your letter that I find most disturbing. I am old enough to remember the House un-American Activities Committee hearing in the House of Representatives. And the incessant rantings of Senator Joe McCarthy about how the Commies were taking over our government. Why, he even though President Eisenhower was a pinko agent!
Well, here you go with that same kind of “guilt by association” vitriol – with lots of “facts” that came straight out of cloud cuckooland and are now very much your own facts, like:
“The leftist media has distorted what SB 1070 will do. It is not going to set up a Nazi Germany . Are you kidding. The ACLU and the leftist courts will do everything to protect those who are here illegally, but it was an effort to try and stop illegal's from setting up businesses, and employment, and receiving state services and give the ability to local law enforcement when there is probable cause like a traffic stop to determine if they are here legally….No one is going to be stopped walking down the street etc.…The Socialist who are in power in DC are angry because we dare try and do something and that something the Socialist wants us to do is just let them come. They want the ‘Transformation’ to continue”.
Well, Senator, all I can say about your hysteria is that Glenn Beck and Sarah Palen must be very proud of you. But I wonder if are those the people whose information you respect and find credible? Do you really want to be publicly associated with these two people whose breadth of misinformation and disinformation is surpassed only by their greed for the big bucks they get brainlessly running their motor-mouths.
You wonder, “Maybe it is too late to save America.” And I wonder what America it is whose loss you’re lamenting? This really does sound like some nostalgic look-back at a faux narrative many of us persuaded ourselves was really “the way we were.” You are eager to “take back” a country that never existed, except in John Wayne films.
I agree with you that “Freedom is not free,” but I suggest we can start paying the price for being able to live as free people not by launching ad homonym attacks on the character and honesty of the President, but by starting real work solving real problems.
You and I might agree on a couple of other things. I think we’d probably agree with DHS Secretary Janet Napolitano, who has said that to do its job effectively, the Department of Homeland Security needs reform. “The laws themselves must be reformed,” she believes."
And I think we’d probably agree with Border leaders who emphasize that there is a "right way" to do border enforcement. Comprehensive immigration reform would further secure our borders and help keep the country safe. A regulated flow of immigrants would take the pressure off the border and scarce enforcement resources would be more rationally focused on real threats to national security, public safety and the flow of people and commerce. Our collective failure to fix the broken immigration system has undermined real and effective border security. In recent years, the federal government has dedicated unprecedented resources to the Mexican border in terms of manpower, technology and infrastructure-and progress has been made to secure our border. However, without fixing the immigration system, more resources on the border bring diminishing returns.
I think we might agree with your Congressman Raul Grijalva, who says, “"Border security cannot be separated from the need for comprehensive immigration reform. A sane immigration and citizenship system needs to accompany smartly targeted law enforcement measures -- merely spending billions of dollars on fences is no kind of 'safety' policy,"
I don’t think SB 1070 is good law. I think it will probably be found unconstitutional. I also think that it’s going to cost Arizona a bunch of money in lost convention and tourism revenue. Yet it’s possible that some really good tings are going to emerge from the controversy over the law.
It’s possible that the hue and cry over SC 1070 – and the copycat laws now being considered by many other states – will finally light a big fire under President Obama and Secretary Napolitano to actually come up with a comprehensive immigration plan, get it passed this year, and start making the changes that’ll make your life a lot more pleasant.
So let’s agree that Job One right now is to exert maximum political pressure on President Obama and Secretary Napolitano and those timid souls who we send to Congress.
They can begin to clean up this mess. Arizona can’t.
Dear Senator Allen:
Thanks for publishing your oped in the Austin Capital Times to explain SB 1070, Arizona’s new immigration law. Frankly, I think some of the rhetoric applied to this new measure has managed to generate a lot of heat but not much light. Some of the knee-jerk Arizona-bashers among us just haven’t caught up with your side of the story yet.
On the other hand, I think it’s important that we all agree on the basic facts at play here. What would we ever do if Senator Daniel Patrick Moynihan had never said, “We’re all entitled to our own opinions but not to our own facts.”
You write that “Rancher Rob Krantz was murdered by the drug cartel on his ranch a month ago. You say the people who live within 60 to 80 miles of the Arizona/Mexico Border have for years been terrorized and have pleaded for help to stop the daily invasion of humans who cross their property. One Rancher testified that 300 to 1200 people a DAY come across his ranch vandalizing his property, stealing his vehicles and property, cutting down his fences, and leaving trash. In the last two years he has found 17 dead bodies and two Koran bibles.”
“Another rancher testified that daily drugs are brought across his ranch in a military operation. A point man with a machine gun goes in front, 1/2 mile behind are the guards fully armed, 1/2 mile behind them are the drugs, behind the drugs 1/2 mile are more guards… One man told of two illegal's (sic) who came upon his property one shot in the back and the other in the arm by the drug runners who had forced them to carry the drugs and then shot them.”
I have no doubt that, from your perspective, all your statements are true and un-challengable. And one can’t help but feel great compassion for the folks who suffered these losses.
But let me tell you where I think there are other facts that also need to be understood.
These facts are that crime rates and violence in Arizona are down, not up. Federal statistics show that in fact violent crime in your state was lower in 2008 than it has been since the early 1970s. In fact, violent crime and property crime have fallen consistently in all the border states over the last several years. The Mayor of Hidalgo, Texas, said that in his 20 years as mayor there has not been a single homicide, and there was only one kidnapping, committed by a registered sex offender from California.
But there’s an even more significant context here. We all need to be careful to distinguish between cartelistas in the drug trade and ordinary Mexicans who are coming to our country to work and earn money to send home. The druggistas are vicious thugs who are breaking our people and our laws. They need to be caught. But that’s not going to be easy so long as it’s our own appetite for the toxins they peddle that keeps them in business and doing very nicely, thanks very much.
(Maybe when we have ore time, we can have a discussion about the impact that drug legalization might have on the border problem, but that’s for another day.)
You say that “The border patrol is not on the border. They have set up 60 miles away with checkpoints that do nothing to stop the invasion. They are not allowed to use force in stopping anyone who is entering. They run around chasing them, if they get their hands on them then they can take them back across the border.”
Well, Senator, you are absolutely right that the Border Patrol is not on the border. The fact is that their checkpoints are invasive law enforcement roadblocks that do not improve security but do infringe on the civil rights of border residents.
You write that Federal prisons have over 35% illegal's (sic) and 20% of Arizona prisons are filled with illegals. In the last few years 80% of our law enforcement that have been killed or wounded have been by an illegal.
Here, I have to tell you the percent of illegals you say is in jails or committing crimes is simply wrong. It’s possible that prisons have 35% non-citizens, but that’s not the same as illegal immigrants. And I’m sorry to have to tell you that your claim about injury to law enforcement being 80% caused by illegal immigrants is completely spurious. It’s your own fact!
You say, “the Federal Government has refused for years to do anything to help the border states. We have been over run and once they are here we have the burden of funding state services that they use. Education costs have been over a billion dollars. The healthcare cost billions of dollars. Our State is broke, $3.5 billion deficit and we have many serious decisions to make. One is that we do not have the money to care for any who are not here legally. It has to stop.”
I think most immigration experts and reliable economists would agree that Arizona’s fiscal problems are not the result of unlawful entries. In fact, most unlawful entries are of migrants seeking work, contributing a net gain to Arizona’s economy. Contrary to widespread misunderstanding, most undocumented workers pay taxes, including sales taxes and income taxes, which are often withdrawn before the worker is paid. Furthermore, I am not an economist, but it seems more reasonable to suggest that Arizona’s fiscal problems are much more a result of a national and global economic meltdown.
You say, “The border can be secured. We have the technology we have the ability to stop this invasion. We must know who is coming and they must come in an organized manner legally so that we can assimilate them into our population and protect the sovereignty of our country. We are a nation of laws. We have a responsibility to protect our citizens and to protect the integrity of our country and the government which we live under.”
You go further. You say you “would give amnesty today to many, but here is the problem, we dare not do this until the Border is secure. It will do no good to forgive them because thousands will come behind them and we will be over run to the point that there will no longer be the United States of America but a North American Union of open borders. I ask you what form of government will we live under? How long will it be before we will be just like Mexico,, Canada or any of the other Central American or South American countries? We have already lost our language, everything must be printed in Spanish also. We have already lost our history it is no longer taught in our schools. And we have lost our borders.”
I think what I’d most like to get across to you is that reforming the immigration system and creating legal avenues for migration is the way to improve border security and traffic flows at the border. I can’t believe that you think that “securing the border first” means that there will be absolutely zero crime or unlawful entries. Heck, this is an expectation for law enforcement that cannot be serious, given that all communities have criminal incidents. To be perfectly frank, Senator, I find this a shortsighted and reactionary response to an over-hyped perception of border violence that is not borne out by evidence.
Now, here’s the part of your letter that I find most disturbing. I am old enough to remember the House un-American Activities Committee hearing in the House of Representatives. And the incessant rantings of Senator Joe McCarthy about how the Commies were taking over our government. Why, he even though President Eisenhower was a pinko agent!
Well, here you go with that same kind of “guilt by association” vitriol – with lots of “facts” that came straight out of cloud cuckooland and are now very much your own facts, like:
“The leftist media has distorted what SB 1070 will do. It is not going to set up a Nazi Germany . Are you kidding. The ACLU and the leftist courts will do everything to protect those who are here illegally, but it was an effort to try and stop illegal's from setting up businesses, and employment, and receiving state services and give the ability to local law enforcement when there is probable cause like a traffic stop to determine if they are here legally….No one is going to be stopped walking down the street etc.…The Socialist who are in power in DC are angry because we dare try and do something and that something the Socialist wants us to do is just let them come. They want the ‘Transformation’ to continue”.
Well, Senator, all I can say about your hysteria is that Glenn Beck and Sarah Palen must be very proud of you. But I wonder if are those the people whose information you respect and find credible? Do you really want to be publicly associated with these two people whose breadth of misinformation and disinformation is surpassed only by their greed for the big bucks they get brainlessly running their motor-mouths.
You wonder, “Maybe it is too late to save America.” And I wonder what America it is whose loss you’re lamenting? This really does sound like some nostalgic look-back at a faux narrative many of us persuaded ourselves was really “the way we were.” You are eager to “take back” a country that never existed, except in John Wayne films.
I agree with you that “Freedom is not free,” but I suggest we can start paying the price for being able to live as free people not by launching ad homonym attacks on the character and honesty of the President, but by starting real work solving real problems.
You and I might agree on a couple of other things. I think we’d probably agree with DHS Secretary Janet Napolitano, who has said that to do its job effectively, the Department of Homeland Security needs reform. “The laws themselves must be reformed,” she believes."
And I think we’d probably agree with Border leaders who emphasize that there is a "right way" to do border enforcement. Comprehensive immigration reform would further secure our borders and help keep the country safe. A regulated flow of immigrants would take the pressure off the border and scarce enforcement resources would be more rationally focused on real threats to national security, public safety and the flow of people and commerce. Our collective failure to fix the broken immigration system has undermined real and effective border security. In recent years, the federal government has dedicated unprecedented resources to the Mexican border in terms of manpower, technology and infrastructure-and progress has been made to secure our border. However, without fixing the immigration system, more resources on the border bring diminishing returns.
I think we might agree with your Congressman Raul Grijalva, who says, “"Border security cannot be separated from the need for comprehensive immigration reform. A sane immigration and citizenship system needs to accompany smartly targeted law enforcement measures -- merely spending billions of dollars on fences is no kind of 'safety' policy,"
I don’t think SB 1070 is good law. I think it will probably be found unconstitutional. I also think that it’s going to cost Arizona a bunch of money in lost convention and tourism revenue. Yet it’s possible that some really good tings are going to emerge from the controversy over the law.
It’s possible that the hue and cry over SC 1070 – and the copycat laws now being considered by many other states – will finally light a big fire under President Obama and Secretary Napolitano to actually come up with a comprehensive immigration plan, get it passed this year, and start making the changes that’ll make your life a lot more pleasant.
So let’s agree that Job One right now is to exert maximum political pressure on President Obama and Secretary Napolitano and those timid souls who we send to Congress.
They can begin to clean up this mess. Arizona can’t.
Saturday, May 15, 2010
Webb Commission: More Hope Than Reality?
By William Fisher
Despite the lackluster performance of so-called “Blue Ribbon Commissions” over the years, sponsors of the latest proposal – the National Criminal Justice Commission -- are optimistic that it will become a reality and that its recommendations will be taken seriously by the President, Congress and the American people.
The reason, says its sponsor, Senator Jim Webb, a Democrat from Virginia, is that “America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous.”
He added, “We are wasting billions of dollars and diminishing millions of lives. We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.”
Given the checkered history of Blue Ribbon commissions in the nation’s capital, a spokesman for Sen. Webb told IPS that “with nearly 40 Democratic and Republican cosponsors, there is a strong likelihood of success.”
In the past, Congressionally-appointed commissions are typically set up, staffed, complete their investigative and analytical work, make recommendations that are received by a senior official, a press release is issued, and then the commission’s report is consigned to a shelf where it gathers dust.
Throughout U.S. history, there have been relatively few bodies that have gained the notoriety, media coverage, and attention from Congress and the President as the 9/11 Commission, established in the wake of the terrorist attacks if September 11, 2001. Over time, most of its recommendations were implemented. One reason was the severity of the issue – almost 3,000 deaths. Another was ongoing, well-organized, effective support from the families of the 9/11 victims.
A prison commission has none of those attributes – and prisoners can’t vote. So the political inventive appears minimal.
But the issue is not. Statistics compiled by the Congressional Research Service begin to tell the story:
The United States has the highest incarceration rate in the world, imprisoning a higher percentage of its population than any other country. The American incarceration rate is five times the world's average. A total of 2,380,000 people are now in prison. The U.S. has five percent of the world's population, but 25 percent of the world's prison population.
Minorities make up a disproportionately large share of prison populations. Black males have a 32 percent chance of serving time in prison at some point in their lives; Hispanic males have a 17 percent chance; white males have a 6 percent chance. Extensive racial and ethnic disparities exist today in the American criminal justice system.
African American men and boys are grossly over-represented at every stage of the judicial process. Although African Americans make up just over 12% of the national population, 42% of Americans currently on death row are African American.
African American women have the highest rate of incarceration among women in our nation, a rate four times higher than that of White women.
Initial contacts with police officers are often driven by racial profiling and other racially tainted practices, and the disparities exist through the sentencing phase: African Americans routinely receive more jail time and harsher punishments.
Cocaine laws disproportionately affect African Americans, who account for 25% of total crack cocaine users, yet who comprised 81% of those convicted of federal crack cocaine offenses in 2007.
Drug offenders in prisons and jails have increased 1200 percent since 1980. Nearly a half million persons are in Federal or State prison or local jail for a drug offense, compared to an estimated 41,100 in 1980. A significant percentage of these offenders have no history of violence or high-level drug selling activity.
There are approximately 1,000,000 gang members in the United States, and gangs commit as much as 80 percent of the crime in some locations.
Spending on corrections rose 127 percent at the State level while higher education expenditures rose just 21 percent.
Prisons and jails have also become holding facilities for the mentally ill. There are an estimated 350,000 men and women prisoners with serious mental disorders -- four times the number in mental health hospitals.
Prisons have also become public health risks, with the number of State prisoners with HIV is 2.5 times greater than the general population.
Prison administration is uneven, lacking clear standards of training and performance, and varying widely between institutions, localities, and between Federal, State and local jurisdictions.
It is against this background that Sen. Webb introduced the National Criminal Justice Act, authorizing the Commission. There has been no in-depth or comprehensive study of the entire criminal justice system since The President's Commission on Law Enforcement and Administration and Justice, impaneled in 1965.
A companion to the Webb bill has been introduced in the House of Representatives with bipartisan sponsorship. The Senate Judiciary Committee has approved the proposal with strong bipartisan support. The legislation is now awaiting action by the full Senate and is pending in the House.
The Commission would carry out a comprehensive review of the criminal justice system, make findings related to current Federal and State criminal justice policies and practices, and make reform recommendations to improve public safety, cost-effectiveness, overall prison administration, and fairness in the implementation of the criminal justice system.
It “would also be charged with looking at how we have arrived at this convoluted mess, how many of our problems are interrelated and often feed off of one another, and how we can correct a system that is badly in need of a new course,” Sen. Webb said.
Other powerful actors agree. Among them is Hilary 0. Shelton, Director of the Washington Bureau of the National Association for the Advancement of Colored People (NAACP). In a telephone interview, Shelton told IPS, “At every stage of the criminal justice process serious problems undermine basic tenets of fairness and equity, as well as the public’s expectations for safety.”
He added, “Perhaps the most glaring problem inherent in today’s system is the number of racial and ethnic minorities who are disproportionately treated more harshly and more often by our Nation’s criminal justice system. From initial contact to sentencing to the challenges facing those reentering the community after incarceration – racial and ethnic minorities are disproportionately represented in the number of people stopped, arrested, tried, convicted and incarcerated.”
The Commission would include members appointed by the president and by federal and state politicians, as well as private sector specialists in law enforcement, criminal justice, national security, prison administration, prisoner reentry, public health, including drug addiction and mental health, victims' rights, and social services.
The bill has also been endorsed by the International Association of Chiefs of Police, the largest organization of police executives.
Despite the lackluster performance of so-called “Blue Ribbon Commissions” over the years, sponsors of the latest proposal – the National Criminal Justice Commission -- are optimistic that it will become a reality and that its recommendations will be taken seriously by the President, Congress and the American people.
The reason, says its sponsor, Senator Jim Webb, a Democrat from Virginia, is that “America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous.”
He added, “We are wasting billions of dollars and diminishing millions of lives. We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.”
Given the checkered history of Blue Ribbon commissions in the nation’s capital, a spokesman for Sen. Webb told IPS that “with nearly 40 Democratic and Republican cosponsors, there is a strong likelihood of success.”
In the past, Congressionally-appointed commissions are typically set up, staffed, complete their investigative and analytical work, make recommendations that are received by a senior official, a press release is issued, and then the commission’s report is consigned to a shelf where it gathers dust.
Throughout U.S. history, there have been relatively few bodies that have gained the notoriety, media coverage, and attention from Congress and the President as the 9/11 Commission, established in the wake of the terrorist attacks if September 11, 2001. Over time, most of its recommendations were implemented. One reason was the severity of the issue – almost 3,000 deaths. Another was ongoing, well-organized, effective support from the families of the 9/11 victims.
A prison commission has none of those attributes – and prisoners can’t vote. So the political inventive appears minimal.
But the issue is not. Statistics compiled by the Congressional Research Service begin to tell the story:
The United States has the highest incarceration rate in the world, imprisoning a higher percentage of its population than any other country. The American incarceration rate is five times the world's average. A total of 2,380,000 people are now in prison. The U.S. has five percent of the world's population, but 25 percent of the world's prison population.
Minorities make up a disproportionately large share of prison populations. Black males have a 32 percent chance of serving time in prison at some point in their lives; Hispanic males have a 17 percent chance; white males have a 6 percent chance. Extensive racial and ethnic disparities exist today in the American criminal justice system.
African American men and boys are grossly over-represented at every stage of the judicial process. Although African Americans make up just over 12% of the national population, 42% of Americans currently on death row are African American.
African American women have the highest rate of incarceration among women in our nation, a rate four times higher than that of White women.
Initial contacts with police officers are often driven by racial profiling and other racially tainted practices, and the disparities exist through the sentencing phase: African Americans routinely receive more jail time and harsher punishments.
Cocaine laws disproportionately affect African Americans, who account for 25% of total crack cocaine users, yet who comprised 81% of those convicted of federal crack cocaine offenses in 2007.
Drug offenders in prisons and jails have increased 1200 percent since 1980. Nearly a half million persons are in Federal or State prison or local jail for a drug offense, compared to an estimated 41,100 in 1980. A significant percentage of these offenders have no history of violence or high-level drug selling activity.
There are approximately 1,000,000 gang members in the United States, and gangs commit as much as 80 percent of the crime in some locations.
Spending on corrections rose 127 percent at the State level while higher education expenditures rose just 21 percent.
Prisons and jails have also become holding facilities for the mentally ill. There are an estimated 350,000 men and women prisoners with serious mental disorders -- four times the number in mental health hospitals.
Prisons have also become public health risks, with the number of State prisoners with HIV is 2.5 times greater than the general population.
Prison administration is uneven, lacking clear standards of training and performance, and varying widely between institutions, localities, and between Federal, State and local jurisdictions.
It is against this background that Sen. Webb introduced the National Criminal Justice Act, authorizing the Commission. There has been no in-depth or comprehensive study of the entire criminal justice system since The President's Commission on Law Enforcement and Administration and Justice, impaneled in 1965.
A companion to the Webb bill has been introduced in the House of Representatives with bipartisan sponsorship. The Senate Judiciary Committee has approved the proposal with strong bipartisan support. The legislation is now awaiting action by the full Senate and is pending in the House.
The Commission would carry out a comprehensive review of the criminal justice system, make findings related to current Federal and State criminal justice policies and practices, and make reform recommendations to improve public safety, cost-effectiveness, overall prison administration, and fairness in the implementation of the criminal justice system.
It “would also be charged with looking at how we have arrived at this convoluted mess, how many of our problems are interrelated and often feed off of one another, and how we can correct a system that is badly in need of a new course,” Sen. Webb said.
Other powerful actors agree. Among them is Hilary 0. Shelton, Director of the Washington Bureau of the National Association for the Advancement of Colored People (NAACP). In a telephone interview, Shelton told IPS, “At every stage of the criminal justice process serious problems undermine basic tenets of fairness and equity, as well as the public’s expectations for safety.”
He added, “Perhaps the most glaring problem inherent in today’s system is the number of racial and ethnic minorities who are disproportionately treated more harshly and more often by our Nation’s criminal justice system. From initial contact to sentencing to the challenges facing those reentering the community after incarceration – racial and ethnic minorities are disproportionately represented in the number of people stopped, arrested, tried, convicted and incarcerated.”
The Commission would include members appointed by the president and by federal and state politicians, as well as private sector specialists in law enforcement, criminal justice, national security, prison administration, prisoner reentry, public health, including drug addiction and mental health, victims' rights, and social services.
The bill has also been endorsed by the International Association of Chiefs of Police, the largest organization of police executives.
More than Nukes
By William Fisher
Iran’s nuclear ambitions and the bloody disturbances following its elections last year have so dominated media reporting on the country that many equally critical issues have been virtually forgotten.
That’s the view of Hadi Ghaemi, Executive Director of the International Campaign for Human Rights in Iran (ICHRI), a New York-based not-for-profit group attempting to raise public awareness of human rights abuses in Iran.
In an telephone interview with IPS, Ghaemi cited two issues to illustrate his point: last Sunday’s secret executions of five Iranian political prisoners, and the recent elevation of Iran to the United Nations Commission on the Status of Women.
And he reminded an IPS correspondent that “with the first anniversary of the uprising that followed Iran’s deeply flawed election, last June 12th, we can only expect more repression and more brutality as the authorities continue their relentless campaign to silence any voices of protest.”
Iran’s election to the UN Commission came as many women’s rights activists and their international supporters issued a protest statement addressed to the UN’s Economic and Social Council (ECOSOC). The statement called Iran’s election “shocking.” It asked Council members to oppose Iran’s request and to make Iran’s election conditional on its adherence to international equal rights covenants.
The Iranian official news agency called the women’s rights activists, “hostile groups and western media,” who through “poisonous propagation,” tried to prevent Iran’s membership in the Commission on the Status of Women,” but that “their efforts were ignored by members of ECOSOC.”
The agency said Iran’s membership in the Commission is important because “Iran’s views about the position of women can help reflect Islamic views about family and women.”
The letter by women’s rights activists said, “In recent years, the Iranian government has not only refused to join the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), but has actively opposed it.”
The Iranian government, the letter said, “has earned international condemnation as a gross violator of women’s rights. Discrimination against women is codified in its laws, as well as in executive and cultural institutions, and Iran has consistently sought to preserve gender inequality in all places, from the family unit to the highest governmental bodies.”
The second development referenced by Dr. Ghaemi was Iran’s May 9 sudden and secret hanging of five political prisoners. Neither their families nor their lawyers were notified.
ICHRI said the executions “appear to signal a government policy of relying on politically-motivated executions to strengthen its position vis-à-vis its opposition through terror and intimidation.”
The four men and one woman executed include Farzad Kamangar, a 34-year-old teacher and social worker, who was charged with Moharebeh (taking up arms against God), convicted and sentenced to death in February 2008, after a seven-minute long trial in which “zero evidence” was presented, ICHRI said in a statement.
“Kamangar was arbitrarily arrested and set up to be killed in a staged trial,
with no opportunity to present a defense,” stated Aaron Rhodes, a spokesperson for the Campaign.
He added, “These secret executions are, in reality, nothing more than state-sanctioned murders, and provide more evidence of the Islamic Republic’s brazen contempt for international human rights standards.”
Kamangar was held incommunicado for seven months after his arrest in July 2006. ICHRI says there is “strong evidence” that he was tortured. His lawyer has stated that no evidence could be found in his interrogation records, file, or in presentations by prosecutors or the judge’s decision to support the charge of Mohareb. Neither Kamangar nor his lawyers were permitted to speak at his trial.
Shirin Alam Holi, a 28-year-old Kurdish woman was also executed. In several letters recently written from Evin prison she denied charges of terrorism against her and said she had been tortured to make false confessions in front of television cameras, which she had refused.
At least sixteen other Kurdish political prisoners and eleven post-election protestors are in danger of similar unannounced and sudden executions, ICHRI said.
Roxana Saberi, the journalist who was detained in Iran for 100 days in 2009 in Iran, is among many others attempting to raise awareness of dire situation inside Iran.
She wrote in an Op-Ed in the Washington Post, “If the international community fails to condemn such atrocities, Iran's regime will continue to trample on the basic rights of individuals, many of whom have been detained simply for peacefully standing up for universal human rights. It is common for Tehran's prisoners -- including journalists, bloggers, women's rights campaigners, student activists and adherents of the minority Baha'i faith -- to be held in prolonged solitary confinement without access to an attorney as they try to defend themselves against fabricated charges such as espionage and "propaganda against Islam" or the regime.”
Saberi believes international pressure and media attention helped her win her freedom. Her book, "Between Two Worlds: My Life and Captivity in Iran," chronicles her experiences and the stories of her fellow political prisoners in Evin prison.
Hadi Ghaemi, ICHRI’s founder, came to the United States from Iran in 1983 as a student and received his doctorate in Physics from Boston University in 1994. Dr. Ghaemi was a professor of Physics at the City University of New York until 2000.
In 2004, he joined Human Rights Watch as the Iran and United Arab Emirates researcher in the Middle East and North Africa division. He founded ICHRI in 2007 to advocate on behalf of human rights and social movements in Iran and provide a platform for their views.
Iran’s nuclear ambitions and the bloody disturbances following its elections last year have so dominated media reporting on the country that many equally critical issues have been virtually forgotten.
That’s the view of Hadi Ghaemi, Executive Director of the International Campaign for Human Rights in Iran (ICHRI), a New York-based not-for-profit group attempting to raise public awareness of human rights abuses in Iran.
In an telephone interview with IPS, Ghaemi cited two issues to illustrate his point: last Sunday’s secret executions of five Iranian political prisoners, and the recent elevation of Iran to the United Nations Commission on the Status of Women.
And he reminded an IPS correspondent that “with the first anniversary of the uprising that followed Iran’s deeply flawed election, last June 12th, we can only expect more repression and more brutality as the authorities continue their relentless campaign to silence any voices of protest.”
Iran’s election to the UN Commission came as many women’s rights activists and their international supporters issued a protest statement addressed to the UN’s Economic and Social Council (ECOSOC). The statement called Iran’s election “shocking.” It asked Council members to oppose Iran’s request and to make Iran’s election conditional on its adherence to international equal rights covenants.
The Iranian official news agency called the women’s rights activists, “hostile groups and western media,” who through “poisonous propagation,” tried to prevent Iran’s membership in the Commission on the Status of Women,” but that “their efforts were ignored by members of ECOSOC.”
The agency said Iran’s membership in the Commission is important because “Iran’s views about the position of women can help reflect Islamic views about family and women.”
The letter by women’s rights activists said, “In recent years, the Iranian government has not only refused to join the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), but has actively opposed it.”
The Iranian government, the letter said, “has earned international condemnation as a gross violator of women’s rights. Discrimination against women is codified in its laws, as well as in executive and cultural institutions, and Iran has consistently sought to preserve gender inequality in all places, from the family unit to the highest governmental bodies.”
The second development referenced by Dr. Ghaemi was Iran’s May 9 sudden and secret hanging of five political prisoners. Neither their families nor their lawyers were notified.
ICHRI said the executions “appear to signal a government policy of relying on politically-motivated executions to strengthen its position vis-à-vis its opposition through terror and intimidation.”
The four men and one woman executed include Farzad Kamangar, a 34-year-old teacher and social worker, who was charged with Moharebeh (taking up arms against God), convicted and sentenced to death in February 2008, after a seven-minute long trial in which “zero evidence” was presented, ICHRI said in a statement.
“Kamangar was arbitrarily arrested and set up to be killed in a staged trial,
with no opportunity to present a defense,” stated Aaron Rhodes, a spokesperson for the Campaign.
He added, “These secret executions are, in reality, nothing more than state-sanctioned murders, and provide more evidence of the Islamic Republic’s brazen contempt for international human rights standards.”
Kamangar was held incommunicado for seven months after his arrest in July 2006. ICHRI says there is “strong evidence” that he was tortured. His lawyer has stated that no evidence could be found in his interrogation records, file, or in presentations by prosecutors or the judge’s decision to support the charge of Mohareb. Neither Kamangar nor his lawyers were permitted to speak at his trial.
Shirin Alam Holi, a 28-year-old Kurdish woman was also executed. In several letters recently written from Evin prison she denied charges of terrorism against her and said she had been tortured to make false confessions in front of television cameras, which she had refused.
At least sixteen other Kurdish political prisoners and eleven post-election protestors are in danger of similar unannounced and sudden executions, ICHRI said.
Roxana Saberi, the journalist who was detained in Iran for 100 days in 2009 in Iran, is among many others attempting to raise awareness of dire situation inside Iran.
She wrote in an Op-Ed in the Washington Post, “If the international community fails to condemn such atrocities, Iran's regime will continue to trample on the basic rights of individuals, many of whom have been detained simply for peacefully standing up for universal human rights. It is common for Tehran's prisoners -- including journalists, bloggers, women's rights campaigners, student activists and adherents of the minority Baha'i faith -- to be held in prolonged solitary confinement without access to an attorney as they try to defend themselves against fabricated charges such as espionage and "propaganda against Islam" or the regime.”
Saberi believes international pressure and media attention helped her win her freedom. Her book, "Between Two Worlds: My Life and Captivity in Iran," chronicles her experiences and the stories of her fellow political prisoners in Evin prison.
Hadi Ghaemi, ICHRI’s founder, came to the United States from Iran in 1983 as a student and received his doctorate in Physics from Boston University in 1994. Dr. Ghaemi was a professor of Physics at the City University of New York until 2000.
In 2004, he joined Human Rights Watch as the Iran and United Arab Emirates researcher in the Middle East and North Africa division. He founded ICHRI in 2007 to advocate on behalf of human rights and social movements in Iran and provide a platform for their views.
Wednesday, May 12, 2010
Transparency? Great! Starting When?
By William Fisher
Pressure is mounting on the U.S. Government to investigate reports that inmates from the notorious prison at Bagram Air Base in Afghanistan have been moved to a second separate facility – known as the Tor Jail, which translates as "black jail" – where they say they were held in isolation in cold cells with a light on day and night and deprived of sleep by U.S. military personnel.
These reports have been confirmed by The International Committee of the Red Cross (ICRC) which said that since August 2009 US authorities have been notifying it of names of detained people in a separate structure at Bagram.
Nine former prisoners have reported the abuses to the British Broadcasting Corporation (BBC). The men told “consistent” stories of being held in a separate building and suffering multiple abuses, the BBC said.
Vice Admiral Robert Harward, in charge of US detentions in Afghanistan, denied the existence of such a facility or abuses. He told the BBC that the main prison, now called the Detention Facility in Parwan, is the only detention facility on the base. However, he said the military would look into the abuse allegations.
The International Committee of the Red Cross (ICRC) said that "The ICRC is being notified by the US authorities of detained people within 14 days of their arrest," a Red Cross spokesman said. "This has been routine practice since August 2009 and is a development welcomed by the ICRC."
Leading advocacy groups are increasing pressure on the Obama Administration to investigate the BBC reports.
Physicians for Human Rights (PHR) said the alleged techniques “regardless of which administration employs them, constitute torture.”
Frank Donaghue, president of PHR, said, “The Obama administration must make good on its earlier statement that it would not use torture by fully investigating these allegations. Until it explicitly repudiates the use of these techniques, its commitment to human rights will remain in question.”
The organization said it is not yet clear under what authority, if any, the abusive techniques allegedly used at Bagram were approved, but it is possible that officials were relying on Appendix M of the 2006 Army Field Manual on Human Intelligence Collector Operations (AFM).
That appendix authorizes the use of two of the tactics -- sleep deprivation and isolation --allegedly being applied to detainees. The use of temperature manipulation is prohibited by the AFM. Since the release of the current AFM in September 2006, PHR has urged the military to rescind Appendix M.
“As long as Appendix M remains in effect, there is an asterisk next to the Obama administration’s claim that it does not authorize torture,” said John Bradshaw, PHR’s Washington Director.
He said, “Appendix M’s approval of sleep manipulation and isolation is a green light for the abuse of the health and human rights of detainees in US custody. The abuses allowed under Appendix M—and any others still practiced—must come to an end.”
Another advocacy group, Human Rights First (HRF), has also called on the U.S. government to answer the BBC’s allegations. In a letter to Vice-Admiral Harward, the organization pressed for answers to the allegations of abuse. It noted that to date “the U.S. government has consistently failed to respond to these serious accusations.”
"In addition to being reprehensible, abuse of prisoners in Afghanistan would also directly undermine U.S. strategic interests there, which depend upon the support and cooperation of the Afghan people and their government," said HRF’s Daphne Eviatar. "But beyond that, these latest reports, if true, suggest that the U.S. may also be in violation of its legal obligations to treat detainees humanely."
"We urge the government to investigate all allegations of abuse and to make the findings of such allegations public. Only by openly investigating and punishing such abuses will the United States be able to win the trust of the Afghan population, as well as American support for U.S. efforts in Afghanistan," Eviatar said.
This is not the first time that such abuse allegations have surfaced. In November 2009, the Washington Post reported that teenagers arrested by U.S. authorities and held at the Bagram air base had similarly charged that they'd been beaten, sexually humiliated, deprived of sleep and held in isolation. At least two prisoners have died at Bagram since its opening.
In October 2008, HRF, in its “Blueprint for the Next Administration: How to End Torture and Cruel Treatment,” called on the incoming Obama administration to close secret prisons and end the practice of holding "ghost prisoners."
In a January 22, 2009 Executive Order, President Obama revoked the CIA's detention authority and required that the ICRC be given access to all armed conflict detainees, as required by international law. It remains unclear, however, how long after an arrest the ICRC is being permitted to meet with the detainees, and if they are being given access to all U.S.-run detention sites in Afghanistan.
In April 2009, In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department released for the first time a list containing the names of 645 prisoners who were detained at Bagram. other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
Human rights advocates have a mixed record in their attempts to persuade the courts to grant customary due-process rights to Bagram detainees. In one of the earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them - two Yemenis and one Tunisian - had the right to petition U.S. courts for their release.
But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the US and Afghanistan. Judge Bates dismissed Wazir's petition.
Pressure is mounting on the U.S. Government to investigate reports that inmates from the notorious prison at Bagram Air Base in Afghanistan have been moved to a second separate facility – known as the Tor Jail, which translates as "black jail" – where they say they were held in isolation in cold cells with a light on day and night and deprived of sleep by U.S. military personnel.
These reports have been confirmed by The International Committee of the Red Cross (ICRC) which said that since August 2009 US authorities have been notifying it of names of detained people in a separate structure at Bagram.
Nine former prisoners have reported the abuses to the British Broadcasting Corporation (BBC). The men told “consistent” stories of being held in a separate building and suffering multiple abuses, the BBC said.
Vice Admiral Robert Harward, in charge of US detentions in Afghanistan, denied the existence of such a facility or abuses. He told the BBC that the main prison, now called the Detention Facility in Parwan, is the only detention facility on the base. However, he said the military would look into the abuse allegations.
The International Committee of the Red Cross (ICRC) said that "The ICRC is being notified by the US authorities of detained people within 14 days of their arrest," a Red Cross spokesman said. "This has been routine practice since August 2009 and is a development welcomed by the ICRC."
Leading advocacy groups are increasing pressure on the Obama Administration to investigate the BBC reports.
Physicians for Human Rights (PHR) said the alleged techniques “regardless of which administration employs them, constitute torture.”
Frank Donaghue, president of PHR, said, “The Obama administration must make good on its earlier statement that it would not use torture by fully investigating these allegations. Until it explicitly repudiates the use of these techniques, its commitment to human rights will remain in question.”
The organization said it is not yet clear under what authority, if any, the abusive techniques allegedly used at Bagram were approved, but it is possible that officials were relying on Appendix M of the 2006 Army Field Manual on Human Intelligence Collector Operations (AFM).
That appendix authorizes the use of two of the tactics -- sleep deprivation and isolation --allegedly being applied to detainees. The use of temperature manipulation is prohibited by the AFM. Since the release of the current AFM in September 2006, PHR has urged the military to rescind Appendix M.
“As long as Appendix M remains in effect, there is an asterisk next to the Obama administration’s claim that it does not authorize torture,” said John Bradshaw, PHR’s Washington Director.
He said, “Appendix M’s approval of sleep manipulation and isolation is a green light for the abuse of the health and human rights of detainees in US custody. The abuses allowed under Appendix M—and any others still practiced—must come to an end.”
Another advocacy group, Human Rights First (HRF), has also called on the U.S. government to answer the BBC’s allegations. In a letter to Vice-Admiral Harward, the organization pressed for answers to the allegations of abuse. It noted that to date “the U.S. government has consistently failed to respond to these serious accusations.”
"In addition to being reprehensible, abuse of prisoners in Afghanistan would also directly undermine U.S. strategic interests there, which depend upon the support and cooperation of the Afghan people and their government," said HRF’s Daphne Eviatar. "But beyond that, these latest reports, if true, suggest that the U.S. may also be in violation of its legal obligations to treat detainees humanely."
"We urge the government to investigate all allegations of abuse and to make the findings of such allegations public. Only by openly investigating and punishing such abuses will the United States be able to win the trust of the Afghan population, as well as American support for U.S. efforts in Afghanistan," Eviatar said.
This is not the first time that such abuse allegations have surfaced. In November 2009, the Washington Post reported that teenagers arrested by U.S. authorities and held at the Bagram air base had similarly charged that they'd been beaten, sexually humiliated, deprived of sleep and held in isolation. At least two prisoners have died at Bagram since its opening.
In October 2008, HRF, in its “Blueprint for the Next Administration: How to End Torture and Cruel Treatment,” called on the incoming Obama administration to close secret prisons and end the practice of holding "ghost prisoners."
In a January 22, 2009 Executive Order, President Obama revoked the CIA's detention authority and required that the ICRC be given access to all armed conflict detainees, as required by international law. It remains unclear, however, how long after an arrest the ICRC is being permitted to meet with the detainees, and if they are being given access to all U.S.-run detention sites in Afghanistan.
In April 2009, In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department released for the first time a list containing the names of 645 prisoners who were detained at Bagram. other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
Human rights advocates have a mixed record in their attempts to persuade the courts to grant customary due-process rights to Bagram detainees. In one of the earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them - two Yemenis and one Tunisian - had the right to petition U.S. courts for their release.
But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the US and Afghanistan. Judge Bates dismissed Wazir's petition.
W’s “Charity Policy” Reversed
By William Fisher
In a major decision overturning a Bush-era policy – which has been followed by the administration of President Barack Obama -- a federal court has ruled that it is unconstitutional for the U.S. Treasury Department to freeze a charity's assets – effectively putting it out of business with virtually no due process.
That’s what happened in 2006 to an Ohio-based charity called Kind Hearts for Charitable Humanitarian Development, Inc. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze KindHearts' assets without a warrant, notice or a hearing, based simply on the assertion that OFAC was investigating whether the charity should be designated as a "specially designated global terrorist" (SDGT).
Federal District Judge James G. Carr ruled Monday that in the future the administration must obtain a warrant based on probable cause before seizing an organization's assets. In KindHearts' case, the court held that the government must remedy its failure to get a warrant in this case by demonstrating that it had probable cause at the time it froze KindHearts' assets.
Judge Carr also ruled that OFAC violated the U.S. Constitution’s Fifth Amendment's guarantee of due process by failing to provide KindHearts notice of the charges against it or a meaningful opportunity to respond. He held that OFAC must remedy these failures by declassifying or adequately summarizing the classified evidence against KindHearts or by allowing KindHearts' counsel to view the classified evidence pursuant to security clearances and a protective order.
In order to comply with the Constitution, the judge ruled, Congress must fix the law to require a warrant be obtained based upon probable cause before taking such action. The court also found that the Treasury Department's failure to give the charity notice of the basis for freezing its assets violated the Constitution by preventing the charity from being able to meaningfully respond to the freeze.
The ruling reverses a policy developed by the Administration of President George W. Bush in the wake of the terrorist attacks of September 11, 2001.
The ruling came in a lawsuit filed in November 2008 by the American Civil Liberties Union, the ACLU of Ohio, and several civil rights attorneys.
KindHearts was never been found to have engaged in any wrongdoing and has never been designated an SDGT. But as a result of the freeze pending investigation, it would be a crime for anyone to do any business with KindHearts. The charity also had no access to its own property.
Co- counsel in the case was David Cole, a professor at Georgetown University law school and one of the country’s preeminent constitutional lawyers. He told IPS, "The process for freezing charities' assets has been defective from the outset. No charity has yet been afforded notice of the charges against it, and the entire process has been shrouded in secrecy.”
Cole sounded this hopeful note: “With this decision, we may be moving toward fairness, at last, for those targeted by OFAC. If due process means anything, it must mean that the government has to tell you what their charges and evidence are before shutting you down and freezing all your assets."
He added, "For years, the government has insulated its terrorist-designation decisions from any meaningful review by denying the frozen charities even the most basic constitutional requirements of due process," said Georgetown Law Professor David Cole, co-counsel for KindHearts. "Yesterday's decision confirms that such freezes are unconstitutional by requiring the government to provide KindHearts what it has been denied all along – a fair chance to clear its name."
KindHearts' founders established the charity in 2002 – after the government shut down a number of other charities – with the express purpose of providing humanitarian aid both abroad and in the U.S. in full compliance with the law. OFAC froze KindHearts' assets despite the charity’s efforts to implement OFAC policies and even to seek its guidance. The government’s action was based simply on the assertion that the charity was "under investigation." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, again without providing it with a reason or meaningful opportunity to defend itself.
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review. In August 2009, the court ruled for the first time that the government cannot freeze an organization’s assets without obtaining a warrant based upon probable cause. The court also held that the government violated KindHearts' right to due process by freezing its assets without providing it adequate notice of the basis for the freeze or a meaningful opportunity to defend itself.
President Barack Obama conceded in his Cairo speech soon after taking office that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation.”
Since then, civil rights advocates have been pressing the president to turn his words into action. For example, the Muslim Public Affairs Council (MPAC) has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.
In a letter to the president, the organizations outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”
The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.
It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”
For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”
In a major decision overturning a Bush-era policy – which has been followed by the administration of President Barack Obama -- a federal court has ruled that it is unconstitutional for the U.S. Treasury Department to freeze a charity's assets – effectively putting it out of business with virtually no due process.
That’s what happened in 2006 to an Ohio-based charity called Kind Hearts for Charitable Humanitarian Development, Inc. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze KindHearts' assets without a warrant, notice or a hearing, based simply on the assertion that OFAC was investigating whether the charity should be designated as a "specially designated global terrorist" (SDGT).
Federal District Judge James G. Carr ruled Monday that in the future the administration must obtain a warrant based on probable cause before seizing an organization's assets. In KindHearts' case, the court held that the government must remedy its failure to get a warrant in this case by demonstrating that it had probable cause at the time it froze KindHearts' assets.
Judge Carr also ruled that OFAC violated the U.S. Constitution’s Fifth Amendment's guarantee of due process by failing to provide KindHearts notice of the charges against it or a meaningful opportunity to respond. He held that OFAC must remedy these failures by declassifying or adequately summarizing the classified evidence against KindHearts or by allowing KindHearts' counsel to view the classified evidence pursuant to security clearances and a protective order.
In order to comply with the Constitution, the judge ruled, Congress must fix the law to require a warrant be obtained based upon probable cause before taking such action. The court also found that the Treasury Department's failure to give the charity notice of the basis for freezing its assets violated the Constitution by preventing the charity from being able to meaningfully respond to the freeze.
The ruling reverses a policy developed by the Administration of President George W. Bush in the wake of the terrorist attacks of September 11, 2001.
The ruling came in a lawsuit filed in November 2008 by the American Civil Liberties Union, the ACLU of Ohio, and several civil rights attorneys.
KindHearts was never been found to have engaged in any wrongdoing and has never been designated an SDGT. But as a result of the freeze pending investigation, it would be a crime for anyone to do any business with KindHearts. The charity also had no access to its own property.
Co- counsel in the case was David Cole, a professor at Georgetown University law school and one of the country’s preeminent constitutional lawyers. He told IPS, "The process for freezing charities' assets has been defective from the outset. No charity has yet been afforded notice of the charges against it, and the entire process has been shrouded in secrecy.”
Cole sounded this hopeful note: “With this decision, we may be moving toward fairness, at last, for those targeted by OFAC. If due process means anything, it must mean that the government has to tell you what their charges and evidence are before shutting you down and freezing all your assets."
He added, "For years, the government has insulated its terrorist-designation decisions from any meaningful review by denying the frozen charities even the most basic constitutional requirements of due process," said Georgetown Law Professor David Cole, co-counsel for KindHearts. "Yesterday's decision confirms that such freezes are unconstitutional by requiring the government to provide KindHearts what it has been denied all along – a fair chance to clear its name."
KindHearts' founders established the charity in 2002 – after the government shut down a number of other charities – with the express purpose of providing humanitarian aid both abroad and in the U.S. in full compliance with the law. OFAC froze KindHearts' assets despite the charity’s efforts to implement OFAC policies and even to seek its guidance. The government’s action was based simply on the assertion that the charity was "under investigation." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, again without providing it with a reason or meaningful opportunity to defend itself.
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review. In August 2009, the court ruled for the first time that the government cannot freeze an organization’s assets without obtaining a warrant based upon probable cause. The court also held that the government violated KindHearts' right to due process by freezing its assets without providing it adequate notice of the basis for the freeze or a meaningful opportunity to defend itself.
President Barack Obama conceded in his Cairo speech soon after taking office that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation.”
Since then, civil rights advocates have been pressing the president to turn his words into action. For example, the Muslim Public Affairs Council (MPAC) has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.
In a letter to the president, the organizations outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”
The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.
It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”
For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”
Monday, May 10, 2010
KAGAN: WILL SHE OR WON’T SHE?
By William Fisher
The question of whether Supreme Court nominee Elena Kagan will move the Court to the right or the left continued today to be among the main points of contention among legal scholars.
Kagan, currently the first woman to serve as U.S. Solicitor General, would be the third woman to sit on the high court at the same time. She would also be the second Jewish justice, the other being Ruth Bader Ginsberg.
Since long before President Obama nominated her to the highest court in the country, one school of observers has been saying that Kagan has the intellectual fire-power to persuade Justice Kennedy to join the "liberal" wing of the court on more occasions, while another group believes that, based on her record, her appointment is more likely to move the court to the right.
At one end of this spectrum of opinion stand the views of Prof. Frances Boyle, the left-of-center firebrand legal scholar from the University of Illinois Law School.
Boyle told IPS, "As dean of the Harvard Law School, Kagan hired Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about 'how proud' she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.”
Boyle added that, "During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration's bogus category of 'enemy combatant,' whose implementation has been a war crime in its own right.”
In her current job as U.S. Solicitor General, Boyle says, “Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court. “
Taking an equally strong stand is Marjorie Cohn, immediate past president of the progressive National Lawyers Guild and a professor at Thomas Jefferson School of Law. Cohn’s recent article, entitled, "Kagan Will Move Supreme Court to the Right," states: "Unfortunately, President Barack Obama has continued to assert many of Bush's executive policies in his 'war on terror.' ... During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent."
Bruce Fein, a prominent conservative who served in the Department of Justice during the Reagan Presidency and a fierce defender of civil rights, believes Kagan’s past actions offer solid portents of what she may do on the bench.
He told IPS, “Kagan demonstrated in her equivocation over excluding DOD from campus recruiting because of don’t ask, don’t tell that her philosophical sound track is that discretion is the better part of valor. She has no deep convictions about constitutional interpretation ala Scalia.”
But, he added, “She has defended outlandish positions of the Obama administration in the US Supreme Court, for example, an attorney would be guilty of material assistance to a foreign terrorist organization by filing an amicus curiae brief on its behalf, or defending Obama’s authority to continue detention of Guantanamo detainees after they have prevailed in habeas corpus proceedings disproving that they were ‘enemy combatants’. She has been more a loyalist to the President than a strict defender of the Constitution. Her confirmation would move the High Court to the right. “
Another view is being expressed by Scott Horton, a constitutional lawyer and a frequently-quoted contributing editor to Harper’s magazine. He told IPS, “First, as to the premise that Kagan would belong to the ‘liberal’ wing of the Court: Her scholarship is relatively limited in scope, but it would hardly lead to the judgment that she's a liberal. Her positions are generally centrist.”
He added, “In particular, as contrasted with John Paul Stevens, she is not a civil libertarian by any stretch of the imagination, least of all on national security issues, where she would more likely please Bill Kristol than Glenn Greenwald.”
Horton notes that on the issue of presidential power, “She seems to embrace and support an executive who wields tremendous, and growing power. Her work on ‘Presidential Administration,’ for instance, shows that she appreciates and uses the concept of the Unitary Executive at least to some extent.”
“On national security matters,” Horton contends, “she has staked out positions that are clearly far to the right of Stevens. I think she could wind up surprising many observers after she's on the court, but I incline to view her as a centrist Democrat, probably not far away from Sonia Sotomayor, and certainly to the right of Stevens, so her appointment moves the Court to the right generally.
Kagan’s views on presidential power also disturb the Center for Constitutional Rights, (CCR), a legal advocacy group that has defended dozens of Guantanamo Bay prisoners.
In a statement, CCR executive durector Vince Warren said, “At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade. I am sad to say that Solicitor General Elena Kagan’s record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time.”
Yet another perspective comes from Morris Davis, Former Chief Prosecutor for the Guantanamo Bay Military Commissions. He told IPS, “The distinctly American truth" is that if you don't have a law degree from Harvard, Yale, or Columbia you don't have the ‘right education’ to attain the ‘God-given potential’ to be a Supreme Court justice.
He said Harvard, Yale, and Columbia “are three of the 199 law schools accredited by the American Bar Association -- about 1.5 percent of the total -- and produce about 3 percent of law school graduates annually, yet graduates of the three most elite Ivy League law schools will fill 100 percent of the nine seats on the U.S. Supreme Court.”
Republican critics, gearing up for a possible confirmation fight this Summer, are already preparing the ground by noting that confirming a Solicitor General is a lot different than confirming a Supreme Court Justice – a lifetime appointment.
The opposition will likely raise a number of other issues in Kagan’s past. For example, in 2003, while serving as Dean of the Harvard Law School, Ms. Kagan spoke out against the Defense Department's "don't ask, don't tell" policy. She wrote, "I abhor the military's discriminatory recruitment policy," a policy she called "a profound wrong -- a moral injustice of the first order."
The limits on Presidential power are certain to be a major area of debate during her conformation hearings.
Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law, told IPS, “A main inquiry is what are the nominee's views of the proper role of the executive in the so-called war on terror. Does the nominee support the power grab of the last administration - a power grab that, unfortunately but perhaps not surprisingly, the current administration seems to favor? The problem is that many legislators seem to have drunk the kool aid that the way to deal with the threat of terrorism - a threat that is likely over-rated - is to wage war and crack down on our civil liberties. So, legislators are unlikely to probe deeply about such matters at confirmation hearings.”
Yet another skeptical view is voiced by Tina Foster, head of the Alliance for Justice, which is providing legal assistance for prisoners at Bagram Air Base ion Afghanistan.
She told IPS, “Ms. Kagan is listed as the primary drafter of the brief in opposition to our Bagram cases. Since she drafted the legal argument for Obama's defense of indefinite detention of all future war on terror detainees, it's hard to imagine her disagreeing with her own argument if appointed to the Supreme Court. I'd assume she would recuse herself if a case she worked on below was pending before her in the Supreme Court.
Kagan’s confirmation hearings before the Senate Judiciary Committee will likely take place this summer, according to Committee chairman Sen. Patrick Leahy, a Vermont Democrat.
The question of whether Supreme Court nominee Elena Kagan will move the Court to the right or the left continued today to be among the main points of contention among legal scholars.
Kagan, currently the first woman to serve as U.S. Solicitor General, would be the third woman to sit on the high court at the same time. She would also be the second Jewish justice, the other being Ruth Bader Ginsberg.
Since long before President Obama nominated her to the highest court in the country, one school of observers has been saying that Kagan has the intellectual fire-power to persuade Justice Kennedy to join the "liberal" wing of the court on more occasions, while another group believes that, based on her record, her appointment is more likely to move the court to the right.
At one end of this spectrum of opinion stand the views of Prof. Frances Boyle, the left-of-center firebrand legal scholar from the University of Illinois Law School.
Boyle told IPS, "As dean of the Harvard Law School, Kagan hired Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about 'how proud' she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.”
Boyle added that, "During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration's bogus category of 'enemy combatant,' whose implementation has been a war crime in its own right.”
In her current job as U.S. Solicitor General, Boyle says, “Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court. “
Taking an equally strong stand is Marjorie Cohn, immediate past president of the progressive National Lawyers Guild and a professor at Thomas Jefferson School of Law. Cohn’s recent article, entitled, "Kagan Will Move Supreme Court to the Right," states: "Unfortunately, President Barack Obama has continued to assert many of Bush's executive policies in his 'war on terror.' ... During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent."
Bruce Fein, a prominent conservative who served in the Department of Justice during the Reagan Presidency and a fierce defender of civil rights, believes Kagan’s past actions offer solid portents of what she may do on the bench.
He told IPS, “Kagan demonstrated in her equivocation over excluding DOD from campus recruiting because of don’t ask, don’t tell that her philosophical sound track is that discretion is the better part of valor. She has no deep convictions about constitutional interpretation ala Scalia.”
But, he added, “She has defended outlandish positions of the Obama administration in the US Supreme Court, for example, an attorney would be guilty of material assistance to a foreign terrorist organization by filing an amicus curiae brief on its behalf, or defending Obama’s authority to continue detention of Guantanamo detainees after they have prevailed in habeas corpus proceedings disproving that they were ‘enemy combatants’. She has been more a loyalist to the President than a strict defender of the Constitution. Her confirmation would move the High Court to the right. “
Another view is being expressed by Scott Horton, a constitutional lawyer and a frequently-quoted contributing editor to Harper’s magazine. He told IPS, “First, as to the premise that Kagan would belong to the ‘liberal’ wing of the Court: Her scholarship is relatively limited in scope, but it would hardly lead to the judgment that she's a liberal. Her positions are generally centrist.”
He added, “In particular, as contrasted with John Paul Stevens, she is not a civil libertarian by any stretch of the imagination, least of all on national security issues, where she would more likely please Bill Kristol than Glenn Greenwald.”
Horton notes that on the issue of presidential power, “She seems to embrace and support an executive who wields tremendous, and growing power. Her work on ‘Presidential Administration,’ for instance, shows that she appreciates and uses the concept of the Unitary Executive at least to some extent.”
“On national security matters,” Horton contends, “she has staked out positions that are clearly far to the right of Stevens. I think she could wind up surprising many observers after she's on the court, but I incline to view her as a centrist Democrat, probably not far away from Sonia Sotomayor, and certainly to the right of Stevens, so her appointment moves the Court to the right generally.
Kagan’s views on presidential power also disturb the Center for Constitutional Rights, (CCR), a legal advocacy group that has defended dozens of Guantanamo Bay prisoners.
In a statement, CCR executive durector Vince Warren said, “At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade. I am sad to say that Solicitor General Elena Kagan’s record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time.”
Yet another perspective comes from Morris Davis, Former Chief Prosecutor for the Guantanamo Bay Military Commissions. He told IPS, “The distinctly American truth" is that if you don't have a law degree from Harvard, Yale, or Columbia you don't have the ‘right education’ to attain the ‘God-given potential’ to be a Supreme Court justice.
He said Harvard, Yale, and Columbia “are three of the 199 law schools accredited by the American Bar Association -- about 1.5 percent of the total -- and produce about 3 percent of law school graduates annually, yet graduates of the three most elite Ivy League law schools will fill 100 percent of the nine seats on the U.S. Supreme Court.”
Republican critics, gearing up for a possible confirmation fight this Summer, are already preparing the ground by noting that confirming a Solicitor General is a lot different than confirming a Supreme Court Justice – a lifetime appointment.
The opposition will likely raise a number of other issues in Kagan’s past. For example, in 2003, while serving as Dean of the Harvard Law School, Ms. Kagan spoke out against the Defense Department's "don't ask, don't tell" policy. She wrote, "I abhor the military's discriminatory recruitment policy," a policy she called "a profound wrong -- a moral injustice of the first order."
The limits on Presidential power are certain to be a major area of debate during her conformation hearings.
Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law, told IPS, “A main inquiry is what are the nominee's views of the proper role of the executive in the so-called war on terror. Does the nominee support the power grab of the last administration - a power grab that, unfortunately but perhaps not surprisingly, the current administration seems to favor? The problem is that many legislators seem to have drunk the kool aid that the way to deal with the threat of terrorism - a threat that is likely over-rated - is to wage war and crack down on our civil liberties. So, legislators are unlikely to probe deeply about such matters at confirmation hearings.”
Yet another skeptical view is voiced by Tina Foster, head of the Alliance for Justice, which is providing legal assistance for prisoners at Bagram Air Base ion Afghanistan.
She told IPS, “Ms. Kagan is listed as the primary drafter of the brief in opposition to our Bagram cases. Since she drafted the legal argument for Obama's defense of indefinite detention of all future war on terror detainees, it's hard to imagine her disagreeing with her own argument if appointed to the Supreme Court. I'd assume she would recuse herself if a case she worked on below was pending before her in the Supreme Court.
Kagan’s confirmation hearings before the Senate Judiciary Committee will likely take place this summer, according to Committee chairman Sen. Patrick Leahy, a Vermont Democrat.
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