By William Fisher
Representative Pete King, the impresario of Capitol Kabuki, is very busy these days getting ready for his debut as the new chairman of the House Committee on Homeland Security.
And for his opening act, some time next month, the congressman is planning a hearing on the radicalization of young Muslims by local religious leaders.
The New York Republican believes this is a serious problem. He says he has heard an increasing number of stories from federal law enforcement officials that U.S. Islamic leaders have not cooperated with police or are fomenting young Muslims.
"There's a systematic effort to radicalize young Muslim men," King told the Los Angeles Times. "It would be irresponsible of me not to have this investigation. If it was coming from some other demographic group, I would say the same thing," he said.
But U.S. Islamic leaders are concerned that the hearing will be more like a McCarthy-style witch-hunt because of the over-heated rhetoric King has consistently used to attack the Muslim community in the U.S. They say he is “unfairly tarring the Muslim community, which they said had helped U.S. law enforcement break up terrorist plots.”
That statement would appear to be supported by a recent study the Muslim Public Affairs Council (MPAC), entitled “Post-9/11 Terrorism Incident Database.” MPAC reported that:
• There were 77 total plots by domestic non-Muslim perpetrators against the United States since 9/11/01. In comparison, there have been 41 total plots by domestic and international Muslim perpetrators since 9/11/01.
• There are at least five incidents of non-Muslim domestic extremists possessing or attempting to possess Biological, Chemical or Radiological weapons. One of those occurred since Obama’s election. No such cases involving Muslim violent extremists have been reported since 9/11/01.
• Evidence clearly indicates a general rise in violent extremism across ideologies. Using Obama’s election as our measurement, since November 4, 2008 there have been 44 terror plots by non-Muslim domestic extremists. By comparison, there have been 20 plots by Muslim domestic and international extremists. Each of these categories constitutes close to 50% of all violent extremism cases since 9/11.
• Yet there is little evidence of rising ideological extremism among American Muslims. We use Obama’s election as the start of a timeline for measurement. We found 14 out of the 19 post-election plots (74%) involved Muslim Americans engaging in ideological extremism before the vote. Only two out of 19 cases (10%) are individuals involved in extremist activities after Obama’s election.
• Muslim communities have stepped forward to help law enforcement foil over one out of every three Al Qaeda-related terror plots threatening America since 9/11. Muslim communities have helped law enforcement prevent the last 7 out of 11 Al Qaeda related plots.
So far, King seems intent on brushing off approaches from Muslims that they get together with King to discuss the subject. Rep. Keith Ellison, one of two Muslim members of Congress, buttonholed King on the House floor and offered to volunteer himself and other witnesses as proof that several terrorist plots —
including those in Times Square and in Virginia — were initially brought to the attention of federal law enforcement by Muslims.
And MPAC wrote to King suggesting a meeting. As of today, King has not responded to either suggestion and says the hearing will go forward as planned.
But King’s lack of responsiveness has worried American Muslim leadership. Alejandro Buetel, MPAC’s government liaison officer and author of the Terrorism Incident Database, told The Public Record, "We have no objection to a hearing. We just want to be sure they are focused on real problem solving, not political theater."
What concerns MPAC and other Muslim-oriented groups is what they characterize as King’s often-expressed prejudice against Muslims.
For example, he cited a recent Pew poll he said showed that 15% of young American Muslims believed suicide bombing was justified.
He has said, "I also know of imams instructing members of their mosques not to cooperate with law enforcement investigating the recruiting of young men in their mosques as suicide bombers. We need to find the reasons for this alienation."
In 2004 King said on the Sean Hannity program, “…you could say that 80-85 percent of mosques in this country are controlled by Islamic fundamentalists…Those who are in control. The average Muslim, no, they are loyal, but they don’t work, they don’t come forward, they don’t tell the police.”
King has said there are “too many mosques” in the U.S.”
He has characterized American Muslim leaders as “an enemy living amongst us” [which does not] cooperate in the war on terror”.
In a 2004 non sequitur, King said: “The fact is while the overwhelming majority of Muslims are outstanding people, on the other hand 100% of the Islamic terrorists are Muslims, and that is our main enemy today.”
Two years later, King sent two letters to several thousand, mainly Jewish, constituents in New York’s 3rd Congressional District. The letters condemned American Muslim leaders, including those at the Islamic Center of Long Island (ICLI), for “failing to unequivocally denounce Islamic terrorism.”
Leaders of the ICLI, a Westbury-based mosque founded in 1985, supported King’s Democratic opponent in the last election, Nassau County Legislator David Mejias.
When the Department of Homeland Security (DHS) released a report in 2009 warning of the rising threat of right-wing extremism, King told TV host Joe Scarborough that, instead of discussing the threat of anti-government radicals, DHS should focus on the threat emanating from “Muslims” and “mosques” at home.
He said ”[DHS Secretary Janet] Napolitano has never put out a report talking about ‘look out for mosques. Look out for Islamic terrorists in our country. Look out for the fact that very few Muslims come forward to cooperate with the police.’ If they sent out a report saying that, there would be hell to pay,” King said.
“The (DHS) was set up primarily to protect us from another terrorist attack from Islamic terrorists, and yet they talk about everything but that,” he said.
In an opinion column in Newsday, King wrote, “Federal and local law enforcement officials throughout the country told me they received little or -- in most cases -- no cooperation from Muslim leaders and imams.”
"There are too many mosques in this country," King told Politico in 2007. "There are too many people who are sympathetic to radical Islam. We should be looking at them more carefully and finding out how we can infiltrate them."
'The leadership of the community is not geared to cooperation,' Peter King says.
Corey P. Saylor, national legislative director for the Council on American-Islamic Relations (CAIR), called King's investigation a "witch hunt."
“If I saw that the hearings were sober and objective, I’d have no concerns,” said Corey Saylor, CAIR’s legislative director. “But King is opting for a political circus approach.”
CAIR has not been invited to testify at the hearing.
Rep. Ellison takes a charitable view of Rep. King. "I don't think Pete King is an evil person. He's concerned about public safety and homeland security. And there have been cases where Muslims have done awful things. But it's a narrow investigation, and it's going to make a particular group feel targeted."
"The bottom line is you have people who desperately want to help protect their country," Ellison said, "and they are being nudged out of that opportunity because we're told we are the problem."
MPAC, in a January 7, 2011 letter to King, said the proposed hearings – as they are currently being framed – “would do little to solve the problem and would instead create an ugly political circus.”
MPAC called for a meeting with King to discuss his initiatives, the proposed hearings, and the efforts of the Muslim American community in fighting radicalization. “We certainly hope that Congressman King is serious enough about wanting to fight radicalization that he will take us up on this request in the coming days and weeks,” MPAC said.
“I hope my colleague from New York … does not make the mistake of trying to paint all Muslims with a broad, extremist brush,” Rep. Andre Carson, an Indiana Democrat, who is the other Muslim in Congress. In an email to the journal, POLITICO, he wrote, “Because for one, that’s not an accurate depiction of the millions of peace-loving Muslims; and two, our national security depends on us forging strong partnerships with people across the Muslim world.”
Possible witnesses, according to King, include the Dutch critic of Islam Ayaan Hirsi Ali and Zuhdi Jasser, the Arizona-based founder of the American Islamic Forum for Democracy. Jasser is a sharp critic of leading American Muslim groups, whose agenda he calls “Islamist.”
Sunday, January 23, 2011
Your Government’s Experiment in Social Isolation
By William Fisher
If you are unlucky enough to be doing time at one of the Federal Government’s two “experimental prisons” – which it calls Communications Management Units (CMUs) – you are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. You may not hug, touch or embrace your children or spouse during visits.
Severe restrictions are also placed on your access to phone calls and letters, as well as work and educational opportunities. Transfers to the CMU are not explained; nor are prisoners told how to earn release into less restrictive confinement, as there is no review process. Lawyers say that because these transfers are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged.
Two federal prisons are being used as CMUs and overwhelmingly hold Muslim prisoners and prisoners with unpopular political beliefs. Opponents charge they are practicing religious profiling, retaliation and arbitrary punishment.
These are the principal allegations in a lawsuit filed by the Center for Constitutional Rights (CCR) against U.S. Attorney General Eric Holder and the U.S. Department of Justice (DOJ). The DOJ houses the U.S. Bureau of Prisons (BOP), which runs the two units, one in Terre Haute, Indiana, the other in Marion, Illinois. Plaintiffs are five current and former prisoners, and the spouses of two prisoners.
Now comes information on another major shortcoming: Inadequate medical care.
In a letter, a CMU inmate describes a situation that other legal experts confirm persists throughout the prison system. The inmate, whose name is being withheld from this article for his protection, explains:
"I was waiting to be called for the surgery. Today at 6 am the guard asked me if I had eaten today (I already did by then) because I was to be taken out for a procedure. I told him that I already ate and that I should have been told no later than last night about the procedure. Besides, I told them that I was put on daily aspirin, which must be stopped for several days before any procedure. The guard understood that there was a mix up.
“An hour later when the nurse (an LPN) came, I was explaining to her that there must have been a mistake. She was stern, less than respectful and less than understanding. She immediately snapped at me: ‘So you are refusing the colonoscopy’.
“What colonoscopy? I asked. There must be a misunderstanding. I am to go for a hernia surgery.”
“No, she said, my records show that you are to be locked up to be ‘preped’ (sic) for the colonoscopy.”
“Well, is there someone I can talk to and explain the situation, I said.”
“No”, she snapped. " I am the only one here". If you want to talk to someone you have to wait until tomorrow,” she said. "Meanwhile, you will have to sign this refusal form".
The prisoner’s letter continues: "You asked about my hernia. It does bother me that at times it is painful and uncomfortable. It limits my physical activities and exercises. I am unable to stay in one position for an extended period of time. I cannot bend or strain without feeling the discomfort. After my limited walk every day I feel the area numb. I look forward to being relieved of this hernia.
“Last night, they told me to be NPO after midnight for a procedure. This was after the morning fiasco which I briefed you about. Only to be told two hours later that it was cancelled! I am still in limbo, not sure what these people are doing or what game they are playing with my health.”
The prisoner asks: “How would an intelligent reasonable professional mix colonoscopy with hernia repair? Instead of thanking me for correcting a potential danger and embarrassment for these people I am treated like a dog. I take it back, dogs are treated better. All this is done by a supposedly health professional who swore an oath of taking care of the sick.
“I frankly…fear for my life and well being in this joint with characters like this one. I am unable to call her a nurse. I know nurses, I hired some, dealt with some and (was) treated by some. None is like this one. She would not have acted like this had her superiors been better than her. It is a culture of disrespect and abuse.
The inmate concludes: “It is ironic that this happens when they told us that the JCAH (joint Commission on Accreditation of Hospitals) is coming soon to give accreditation to their health service!!!!!!”
Joan Covici, a former longtime member of the Dallas ACLU Board of Directors, and a nationally recognized champion of prisoners’ rights, commented on this inmate’s predicament.
She told us, “The man has to keep going through his unit's grievance process. It may not make a difference, since what he is experiencing is common throughout the nation. But, he must go into court with his own story AFTER he has exhausted all remedies.”
She added, “Too many COs are TRAINED and INSTRUCTED to treat the incarcerated as dangerous and as liars -- which many of them are. I believe that anyone, incarcerated fairly and honestly, is sick and probably unreliable and dangerous. Some COs understand this and act professionally, but many do not.”
The CCR says that, “Despite the fact that their creation marked a dramatic change in BOP policy, [the CMUs] were opened without the required opportunity for public notice and comment.”
But relatively little is known about what goes on inside the CMUs. Unlike conditions and practices at the military prison at Guantanamo Bay, Cuba, the CMUs have received virtually no attention from the mainstream media – print, television or radio. Nor has Congress shown any more than passing interest.
When the Bureau of Prisons announced the first CMU in 2007, they said its purpose was “to house inmates who, due to their current offense, conduct, or other verified information, require increased monitoring of communications with persons in the community to ensure the safe, secure, and orderly running of BOP facilities, and to protect the public.”
But the CCR disputes that statement. “These units are an experiment in social isolation,” said a CCR attorney. “People are being put in these extraordinarily restrictive units without being told why and without any meaningful review. Dispensing with due process creates a situation ripe for abuse; in this case, it has allowed for a pattern of religious profiling, retaliation and arbitrary punishment. This is precisely what the rule of law and the Constitution forbid.”
The CCR says that upwards of two-thirds of the prisoners confined there are Muslims – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as ‘ecoterrorists’.
The CCR says most of those other prisoners appear to have been transferred to the CMU because of other protected First Amendment activities, such as speaking out on social justice issues or filing grievances in prison or court regarding conditions and abuse.
CCR attorneys say the outsized proportion of Muslims demonstrates that the CMUs were created to facilitate the segregation and restrictive treatment of Muslims based on the discriminatory belief that such prisoners are more likely than others to pose a threat to prison security.
According the Bureau of Prisons, the 76 inmates housed in the isolation units are there to prevent them from furthering acts of terrorism. But civil liberties advocates say the extreme conditions in the CMUs amount to abuse and that the program violates the inmate’s constitutional rights. The BOP says CMUs were set up after authorities discovered that some Islamic militants were able to send messages abroad from their prison cells.
The Bureau of Prisons claims that CMUs are designed to hold dangerous terrorists and other high-risk inmates, requiring heightened monitoring of their external and internal communications.
But, the CCR says, “Many prisoners are sent to these isolation units for their constitutionally protected religious beliefs, unpopular political views, or in retaliation for challenging poor treatment or other rights violations in the federal prison system. Unlike other prisoners in the federal system, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children, spouses or loved ones during visits. The CMUs are an experiment in social isolation.”
Karin Friedemann, a Boston-based freelance journalist, writes, “Although the US government refuses to disclose the list of prisoners to the public, inmates include Enaam Arnaout, founder of Islamic charity Benevolence International Foundation; Dr. Rafil Dhafir, physician and founder of Iraqi charity Help the Needy; Ghassan Elashi, founder of Holy Land Foundation and CAIR Dallas; Randall Royer, Muslim civil rights activist; Yassin Aref, imam and Kurdish refugee; Sabri Benkahla, an American who was abducted the day before his wedding while studying in Saudi Arabia; and John Walker Lindh, an American convert to Islam who was captured in Afghanistan; plus some non-Muslim political activists.”
She claims that “most of these prisoners were falsely accused of terrorist offenses and then imprisoned for lesser charges but given sentences meant for serious terrorism-related crimes.”
Carmen Hernandez, president of the National Association of Criminal Defense Lawyers, reportedly told Ms. Friedemann, “The primary problem with the opening of (the CMUs) is that no one knows the criteria used to send the person imprisoned to that unit.”
“What the prisoners have in common is that they were well disciplined, studious, and often religious compared to those in the general prison population, they maintain strong commitments to various causes, and for some reason the government wants to keep them separate, to restrict their communication with the outside world,” she said.
Some observers think we may be one step further toward understanding why.
The reason is that when the BOP first inaugurated the CMUs, the public was not given the opportunity to learn about the program and comment on its soundness. CCR lawyers say that was a violation of federal law and one of the principal reasons for the CCR’s lawsuit.
Now, they say, the BOP is making a late attempt to correct that omission by proposing a rule disclosing CMU policy. CCR says this is “an implicit acknowledgment that the units are unparalleled in the federal prison system, and an admission that the BOP violated the law by operating the unique units secretly for more than three years.”
“While we welcome the BOP’s decision to finally comply with its legal obligations -- albeit over three years too late -- the proposed rule does not make these experimental isolation units constitutional,” said CCR staff attorney Alexis Agathocleous.
“Our clients’ experiences clearly demonstrate the abusive and arbitrary nature of the CMUs,” she said, adding, “The proposed rule states that CMU prisoners, when possible, are provided a detailed explanation of the information that has led to their designation. In reality, many prisoners have simply been told that their designation was based on ‘reliable evidence’.
Some prisoners’ requests to be told the nature of this evidence have been denied, the CCR says. “Others have received an explanation for their designation that included factually incorrect information, with no opportunity for correction.”
The CCR has little hope that the CMU issue will be settled out of court. Rachel Meeropol, a CCR staff attorney, told Truthout:
“The Bureau of Prison’s inhumane Communications Management Units have been operating without oversight or fair process for over four years. Under the Bush administration, it was startlingly clear that Muslims and political activists were to be treated as threats to national security, irrespective of any wrongdoing. Sadly, this [the Obama] administration seems to have embraced that notion as well, and continues to deny fundamental rights to CMU prisoners.”
If you are unlucky enough to be doing time at one of the Federal Government’s two “experimental prisons” – which it calls Communications Management Units (CMUs) – you are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. You may not hug, touch or embrace your children or spouse during visits.
Severe restrictions are also placed on your access to phone calls and letters, as well as work and educational opportunities. Transfers to the CMU are not explained; nor are prisoners told how to earn release into less restrictive confinement, as there is no review process. Lawyers say that because these transfers are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged.
Two federal prisons are being used as CMUs and overwhelmingly hold Muslim prisoners and prisoners with unpopular political beliefs. Opponents charge they are practicing religious profiling, retaliation and arbitrary punishment.
These are the principal allegations in a lawsuit filed by the Center for Constitutional Rights (CCR) against U.S. Attorney General Eric Holder and the U.S. Department of Justice (DOJ). The DOJ houses the U.S. Bureau of Prisons (BOP), which runs the two units, one in Terre Haute, Indiana, the other in Marion, Illinois. Plaintiffs are five current and former prisoners, and the spouses of two prisoners.
Now comes information on another major shortcoming: Inadequate medical care.
In a letter, a CMU inmate describes a situation that other legal experts confirm persists throughout the prison system. The inmate, whose name is being withheld from this article for his protection, explains:
"I was waiting to be called for the surgery. Today at 6 am the guard asked me if I had eaten today (I already did by then) because I was to be taken out for a procedure. I told him that I already ate and that I should have been told no later than last night about the procedure. Besides, I told them that I was put on daily aspirin, which must be stopped for several days before any procedure. The guard understood that there was a mix up.
“An hour later when the nurse (an LPN) came, I was explaining to her that there must have been a mistake. She was stern, less than respectful and less than understanding. She immediately snapped at me: ‘So you are refusing the colonoscopy’.
“What colonoscopy? I asked. There must be a misunderstanding. I am to go for a hernia surgery.”
“No, she said, my records show that you are to be locked up to be ‘preped’ (sic) for the colonoscopy.”
“Well, is there someone I can talk to and explain the situation, I said.”
“No”, she snapped. " I am the only one here". If you want to talk to someone you have to wait until tomorrow,” she said. "Meanwhile, you will have to sign this refusal form".
The prisoner’s letter continues: "You asked about my hernia. It does bother me that at times it is painful and uncomfortable. It limits my physical activities and exercises. I am unable to stay in one position for an extended period of time. I cannot bend or strain without feeling the discomfort. After my limited walk every day I feel the area numb. I look forward to being relieved of this hernia.
“Last night, they told me to be NPO after midnight for a procedure. This was after the morning fiasco which I briefed you about. Only to be told two hours later that it was cancelled! I am still in limbo, not sure what these people are doing or what game they are playing with my health.”
The prisoner asks: “How would an intelligent reasonable professional mix colonoscopy with hernia repair? Instead of thanking me for correcting a potential danger and embarrassment for these people I am treated like a dog. I take it back, dogs are treated better. All this is done by a supposedly health professional who swore an oath of taking care of the sick.
“I frankly…fear for my life and well being in this joint with characters like this one. I am unable to call her a nurse. I know nurses, I hired some, dealt with some and (was) treated by some. None is like this one. She would not have acted like this had her superiors been better than her. It is a culture of disrespect and abuse.
The inmate concludes: “It is ironic that this happens when they told us that the JCAH (joint Commission on Accreditation of Hospitals) is coming soon to give accreditation to their health service!!!!!!”
Joan Covici, a former longtime member of the Dallas ACLU Board of Directors, and a nationally recognized champion of prisoners’ rights, commented on this inmate’s predicament.
She told us, “The man has to keep going through his unit's grievance process. It may not make a difference, since what he is experiencing is common throughout the nation. But, he must go into court with his own story AFTER he has exhausted all remedies.”
She added, “Too many COs are TRAINED and INSTRUCTED to treat the incarcerated as dangerous and as liars -- which many of them are. I believe that anyone, incarcerated fairly and honestly, is sick and probably unreliable and dangerous. Some COs understand this and act professionally, but many do not.”
The CCR says that, “Despite the fact that their creation marked a dramatic change in BOP policy, [the CMUs] were opened without the required opportunity for public notice and comment.”
But relatively little is known about what goes on inside the CMUs. Unlike conditions and practices at the military prison at Guantanamo Bay, Cuba, the CMUs have received virtually no attention from the mainstream media – print, television or radio. Nor has Congress shown any more than passing interest.
When the Bureau of Prisons announced the first CMU in 2007, they said its purpose was “to house inmates who, due to their current offense, conduct, or other verified information, require increased monitoring of communications with persons in the community to ensure the safe, secure, and orderly running of BOP facilities, and to protect the public.”
But the CCR disputes that statement. “These units are an experiment in social isolation,” said a CCR attorney. “People are being put in these extraordinarily restrictive units without being told why and without any meaningful review. Dispensing with due process creates a situation ripe for abuse; in this case, it has allowed for a pattern of religious profiling, retaliation and arbitrary punishment. This is precisely what the rule of law and the Constitution forbid.”
The CCR says that upwards of two-thirds of the prisoners confined there are Muslims – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as ‘ecoterrorists’.
The CCR says most of those other prisoners appear to have been transferred to the CMU because of other protected First Amendment activities, such as speaking out on social justice issues or filing grievances in prison or court regarding conditions and abuse.
CCR attorneys say the outsized proportion of Muslims demonstrates that the CMUs were created to facilitate the segregation and restrictive treatment of Muslims based on the discriminatory belief that such prisoners are more likely than others to pose a threat to prison security.
According the Bureau of Prisons, the 76 inmates housed in the isolation units are there to prevent them from furthering acts of terrorism. But civil liberties advocates say the extreme conditions in the CMUs amount to abuse and that the program violates the inmate’s constitutional rights. The BOP says CMUs were set up after authorities discovered that some Islamic militants were able to send messages abroad from their prison cells.
The Bureau of Prisons claims that CMUs are designed to hold dangerous terrorists and other high-risk inmates, requiring heightened monitoring of their external and internal communications.
But, the CCR says, “Many prisoners are sent to these isolation units for their constitutionally protected religious beliefs, unpopular political views, or in retaliation for challenging poor treatment or other rights violations in the federal prison system. Unlike other prisoners in the federal system, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children, spouses or loved ones during visits. The CMUs are an experiment in social isolation.”
Karin Friedemann, a Boston-based freelance journalist, writes, “Although the US government refuses to disclose the list of prisoners to the public, inmates include Enaam Arnaout, founder of Islamic charity Benevolence International Foundation; Dr. Rafil Dhafir, physician and founder of Iraqi charity Help the Needy; Ghassan Elashi, founder of Holy Land Foundation and CAIR Dallas; Randall Royer, Muslim civil rights activist; Yassin Aref, imam and Kurdish refugee; Sabri Benkahla, an American who was abducted the day before his wedding while studying in Saudi Arabia; and John Walker Lindh, an American convert to Islam who was captured in Afghanistan; plus some non-Muslim political activists.”
She claims that “most of these prisoners were falsely accused of terrorist offenses and then imprisoned for lesser charges but given sentences meant for serious terrorism-related crimes.”
Carmen Hernandez, president of the National Association of Criminal Defense Lawyers, reportedly told Ms. Friedemann, “The primary problem with the opening of (the CMUs) is that no one knows the criteria used to send the person imprisoned to that unit.”
“What the prisoners have in common is that they were well disciplined, studious, and often religious compared to those in the general prison population, they maintain strong commitments to various causes, and for some reason the government wants to keep them separate, to restrict their communication with the outside world,” she said.
Some observers think we may be one step further toward understanding why.
The reason is that when the BOP first inaugurated the CMUs, the public was not given the opportunity to learn about the program and comment on its soundness. CCR lawyers say that was a violation of federal law and one of the principal reasons for the CCR’s lawsuit.
Now, they say, the BOP is making a late attempt to correct that omission by proposing a rule disclosing CMU policy. CCR says this is “an implicit acknowledgment that the units are unparalleled in the federal prison system, and an admission that the BOP violated the law by operating the unique units secretly for more than three years.”
“While we welcome the BOP’s decision to finally comply with its legal obligations -- albeit over three years too late -- the proposed rule does not make these experimental isolation units constitutional,” said CCR staff attorney Alexis Agathocleous.
“Our clients’ experiences clearly demonstrate the abusive and arbitrary nature of the CMUs,” she said, adding, “The proposed rule states that CMU prisoners, when possible, are provided a detailed explanation of the information that has led to their designation. In reality, many prisoners have simply been told that their designation was based on ‘reliable evidence’.
Some prisoners’ requests to be told the nature of this evidence have been denied, the CCR says. “Others have received an explanation for their designation that included factually incorrect information, with no opportunity for correction.”
The CCR has little hope that the CMU issue will be settled out of court. Rachel Meeropol, a CCR staff attorney, told Truthout:
“The Bureau of Prison’s inhumane Communications Management Units have been operating without oversight or fair process for over four years. Under the Bush administration, it was startlingly clear that Muslims and political activists were to be treated as threats to national security, irrespective of any wrongdoing. Sadly, this [the Obama] administration seems to have embraced that notion as well, and continues to deny fundamental rights to CMU prisoners.”
Saturday, January 22, 2011
Battle of the Prosecutors
By William Fisher
A Florida congressman is hoping to drive the last nail into the coffin of the U.S. justice system for Guantanamo detainees.
Republican Representative Tom Rooney, a former military prosecutor, this week introduced a bill mandating that the detention facility at Guantanamo Bay, Cuba, “remains open indefinitely” and requiring that “individuals detained at the facility be tried only by Military Commission.”
But other former military prosecutors think Rooney’s position would be a mistake of epic proportions.
Rooney’s “Detainee Trials at Gitmo Act” would require all detainees currently held at Guantanamo Bay to be tried in the courtroom facility constructed at Guantanamo Bay.
In a statement, Rep. Rooney said, “Military commissions are fair and provide due process for the accused, but they also protect critical intelligence officials and evidence.
The Congressman, a former constitutional law professor at West Point, said, “Foreign terrorists should absolutely not receive the same rights and privileges as American citizens do.”
He added that the recent trial of Ahmed Khalfan Ghailani, who was acquitted on more than 280 counts, including murder, “highlights the flaws with the Administration’s strategy of giving detainees civilian trials.”
Ghailani, who was tried in Federal Court in downtown Manhattan, was convicted on one count of conspiracy and faces a mandatory 20-years-to-life sentence.
But Congressman Rooney believes that the “Constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant.”
He adds, “As a former military prosecutor, I strongly believe that trying detainees in military tribunals at Guantanamo Bay is the best way to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight.”
But other former military prosecutors take starkly different positions.
One of them is David Frakt, who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial. Frakt argued that Hartmann had "...exercised unlawful command influence. Challenging that unlawful influence, Frakt charged that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.
Frakt also claimed that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."
Frakt told The Public Record, “It is shameful that some members of Congress are trying to hamstring the President and Attorney General and substitute their judgment for that of the Executive Branch as to what is the appropriate place to try a criminal case, without any knowledge of the specific facts and circumstances of each case, or the evidence available.”
He said Rooney’s act “also shows the extreme hypocrisy of many members of Congress, who will claim one moment that the Military Commissions are virtually identical in all important respects to federal criminal courts and courts-martial, capable of providing full, fair trials consistent with American ideals of justice and due process, then insist on trials in military commissions for the sole reasons that they clearly believe that convictions are more likely to be obtained on tainted evidence in a military commission than in federal court.”
He added that the "protection of critical evidence is a massive red herring. The procedures in place in the Military Commissions to protect classified evidence are modeled on, and virtually identical to, the Classified Information Procedures Act in place in federal court.”
Frakt told us, “It is deeply insulting that members of Congress repeatedly refer to the Ghailani trial as some kind miscarriage of justice, casting aspersions not only on the jury that rendered the verdict after grappling with the evidence for several days, but on the entire justice system. The criticism of the Ghailani case is clearly premised upon a presumption of Ghailani's guilt, not the presumption of innocence to which even detainees are entitled.”
He added, “It seems to be Rooney's position that Ghailani must have been guilty, since why else would the Justice Department have charged him? It has apparently not occurred to this "former military prosecutor and Constitutional law professor" that the government might have overcharged Mr. Ghailani, or that their theory of the case was flawed, or that their evidence was insufficient.”
Frakt also noted that the Rooney bill, if passed, “would potentially prohibit some detainees from being tried at all.”
He explained: “There are very likely some detainees who have committed federal terrorism crimes, but who have not committed any war crimes. It is still an open question as to whether the appellate courts will allow crimes which have never been considered law of war offenses, such as material support to terrorism, to be tried in the military commissions. It is also still an open question whether the appellate courts will accept the spurious claim that the U.S. was in a war with al Qaeda for five years before 9/11. If the courts reject this theory, then there will be no available forum in which to try detainees for pre 9/11 terrorist acts.”
Frakt’s Guantanamo client, Mohamed Jawad, was called the “child soldier” because he was reportedly only 12 years old when he allegedly threw a hand grenade at an American soldier in Afghanistan, killing him.
In his trial, the military tribunal judge ruled that Jawad's alleged confession to throwing a grenade was inadmissible since it had been obtained through coercion after Afghan authorities beat him and threatened to kill his family. He was ordered released after a successful petition for a writ of habeas corpus and in 2009 was returned to Afghanistan.
Another Military Commission veteran, Col. Morris Davis (Ret.), former chief prosecutor at Guantanamo and now executive director of the Crimes of War Project, noted that Rooney “introduced the same bill a year ago in the 111th Congress where four percent of his colleagues joined as co-sponsors and it died in committee.”
He said Rooney’s “bad idea hasn’t gotten better with age. After more than nine years of failure since President Bush first tried to revive military commissions, and after a thorough trashing of our reputation as the world leader in justice, perhaps we should start upholding the rule of law rather than creating novel arguments to get around it. We used to set the highest standard, now we try to see how low we can go. We’re Americans. We’re better than that.”
Another aspect of the Military Commission debate was highlighted by Andrea Prasow, Senior Counter Terrorism Counsel for Human Rights Watch.
She told The Public Record, ""Military Commissions are new and untested. They have handled only five cases, three of which were plea bargains. By contrast, Article III courts have a proven track-record for prosecuting terrorism suspects. The Military Commissions remain deeply flawed and any verdict rendered by them might ultimately be overturned by the Supreme Court. The victims of 9/11 deserve better than to see such important cases prosecuted in a defective legal system."
And Chris Anders, ACLU Senior Legislative Counsel, injected a note of political realism into the issue. Noting that Rooney's bill was introduced last year and went nowhere, he said it may have a brighter future now because of Republican control of the House of Representatives.
But he told The Public Record that the Rooney measure is merely the first of many focusing on Guantanamo and Military Commissions that are likely to be introduced in this session of congress.
Rooney, who was elected in 2008, represents Florida’s 16th Congressional District, which stretches from the Gulf of Mexico to the Atlantic coast. Rooney won election with 60% of the vote.
He is a member of the House Armed Services Committee, the Committee on the Judiciary, and the Committee on Agriculture. He was selected to serve as a Republican Deputy Whip for the 112th Congress, the only second-term member to be tapped for this post.
Though not a member of the Tea Party caucus, he spoke at the South Florida Tea Party’s first rally on Tax Day in 2009.
Rooney spokesman Michael Mahaffey said, “Congressman Rooney is very supportive of the Tea Party Movement and its message of lower taxes, less government and more personal freedom.” He added, “He believes the strength of the Tea Party lies in its grass roots support and its leadership from the people, not from Washington.”
A Florida congressman is hoping to drive the last nail into the coffin of the U.S. justice system for Guantanamo detainees.
Republican Representative Tom Rooney, a former military prosecutor, this week introduced a bill mandating that the detention facility at Guantanamo Bay, Cuba, “remains open indefinitely” and requiring that “individuals detained at the facility be tried only by Military Commission.”
But other former military prosecutors think Rooney’s position would be a mistake of epic proportions.
Rooney’s “Detainee Trials at Gitmo Act” would require all detainees currently held at Guantanamo Bay to be tried in the courtroom facility constructed at Guantanamo Bay.
In a statement, Rep. Rooney said, “Military commissions are fair and provide due process for the accused, but they also protect critical intelligence officials and evidence.
The Congressman, a former constitutional law professor at West Point, said, “Foreign terrorists should absolutely not receive the same rights and privileges as American citizens do.”
He added that the recent trial of Ahmed Khalfan Ghailani, who was acquitted on more than 280 counts, including murder, “highlights the flaws with the Administration’s strategy of giving detainees civilian trials.”
Ghailani, who was tried in Federal Court in downtown Manhattan, was convicted on one count of conspiracy and faces a mandatory 20-years-to-life sentence.
But Congressman Rooney believes that the “Constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant.”
He adds, “As a former military prosecutor, I strongly believe that trying detainees in military tribunals at Guantanamo Bay is the best way to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight.”
But other former military prosecutors take starkly different positions.
One of them is David Frakt, who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial. Frakt argued that Hartmann had "...exercised unlawful command influence. Challenging that unlawful influence, Frakt charged that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.
Frakt also claimed that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."
Frakt told The Public Record, “It is shameful that some members of Congress are trying to hamstring the President and Attorney General and substitute their judgment for that of the Executive Branch as to what is the appropriate place to try a criminal case, without any knowledge of the specific facts and circumstances of each case, or the evidence available.”
He said Rooney’s act “also shows the extreme hypocrisy of many members of Congress, who will claim one moment that the Military Commissions are virtually identical in all important respects to federal criminal courts and courts-martial, capable of providing full, fair trials consistent with American ideals of justice and due process, then insist on trials in military commissions for the sole reasons that they clearly believe that convictions are more likely to be obtained on tainted evidence in a military commission than in federal court.”
He added that the "protection of critical evidence is a massive red herring. The procedures in place in the Military Commissions to protect classified evidence are modeled on, and virtually identical to, the Classified Information Procedures Act in place in federal court.”
Frakt told us, “It is deeply insulting that members of Congress repeatedly refer to the Ghailani trial as some kind miscarriage of justice, casting aspersions not only on the jury that rendered the verdict after grappling with the evidence for several days, but on the entire justice system. The criticism of the Ghailani case is clearly premised upon a presumption of Ghailani's guilt, not the presumption of innocence to which even detainees are entitled.”
He added, “It seems to be Rooney's position that Ghailani must have been guilty, since why else would the Justice Department have charged him? It has apparently not occurred to this "former military prosecutor and Constitutional law professor" that the government might have overcharged Mr. Ghailani, or that their theory of the case was flawed, or that their evidence was insufficient.”
Frakt also noted that the Rooney bill, if passed, “would potentially prohibit some detainees from being tried at all.”
He explained: “There are very likely some detainees who have committed federal terrorism crimes, but who have not committed any war crimes. It is still an open question as to whether the appellate courts will allow crimes which have never been considered law of war offenses, such as material support to terrorism, to be tried in the military commissions. It is also still an open question whether the appellate courts will accept the spurious claim that the U.S. was in a war with al Qaeda for five years before 9/11. If the courts reject this theory, then there will be no available forum in which to try detainees for pre 9/11 terrorist acts.”
Frakt’s Guantanamo client, Mohamed Jawad, was called the “child soldier” because he was reportedly only 12 years old when he allegedly threw a hand grenade at an American soldier in Afghanistan, killing him.
In his trial, the military tribunal judge ruled that Jawad's alleged confession to throwing a grenade was inadmissible since it had been obtained through coercion after Afghan authorities beat him and threatened to kill his family. He was ordered released after a successful petition for a writ of habeas corpus and in 2009 was returned to Afghanistan.
Another Military Commission veteran, Col. Morris Davis (Ret.), former chief prosecutor at Guantanamo and now executive director of the Crimes of War Project, noted that Rooney “introduced the same bill a year ago in the 111th Congress where four percent of his colleagues joined as co-sponsors and it died in committee.”
He said Rooney’s “bad idea hasn’t gotten better with age. After more than nine years of failure since President Bush first tried to revive military commissions, and after a thorough trashing of our reputation as the world leader in justice, perhaps we should start upholding the rule of law rather than creating novel arguments to get around it. We used to set the highest standard, now we try to see how low we can go. We’re Americans. We’re better than that.”
Another aspect of the Military Commission debate was highlighted by Andrea Prasow, Senior Counter Terrorism Counsel for Human Rights Watch.
She told The Public Record, ""Military Commissions are new and untested. They have handled only five cases, three of which were plea bargains. By contrast, Article III courts have a proven track-record for prosecuting terrorism suspects. The Military Commissions remain deeply flawed and any verdict rendered by them might ultimately be overturned by the Supreme Court. The victims of 9/11 deserve better than to see such important cases prosecuted in a defective legal system."
And Chris Anders, ACLU Senior Legislative Counsel, injected a note of political realism into the issue. Noting that Rooney's bill was introduced last year and went nowhere, he said it may have a brighter future now because of Republican control of the House of Representatives.
But he told The Public Record that the Rooney measure is merely the first of many focusing on Guantanamo and Military Commissions that are likely to be introduced in this session of congress.
Rooney, who was elected in 2008, represents Florida’s 16th Congressional District, which stretches from the Gulf of Mexico to the Atlantic coast. Rooney won election with 60% of the vote.
He is a member of the House Armed Services Committee, the Committee on the Judiciary, and the Committee on Agriculture. He was selected to serve as a Republican Deputy Whip for the 112th Congress, the only second-term member to be tapped for this post.
Though not a member of the Tea Party caucus, he spoke at the South Florida Tea Party’s first rally on Tax Day in 2009.
Rooney spokesman Michael Mahaffey said, “Congressman Rooney is very supportive of the Tea Party Movement and its message of lower taxes, less government and more personal freedom.” He added, “He believes the strength of the Tea Party lies in its grass roots support and its leadership from the people, not from Washington.”
Thursday, January 20, 2011
Another Chance for Second-Class Justice?
By William Fisher
The report in yesterday’s New York Times that the Obama Administration is preparing to resurrect Military Commissions to try Guantanamo detainees probably sounds the death knell for the kind of justice meted out by Federal civilian courts in the U.S. for more than two centuries.
Instead, according to some of the nation’s most respected legal authorities, we are about to slither into the quicksand of a regressive judicial “system” designed, not to dispense justice, but to get convictions.
The Administration’s plans can only be characterized as a defeat. They come exactly two years after the President, on his second day in office, vowed to the American people that he would close the iconic prison at Guantanamo.
Since then, that objective has been immobilized by a perfect storm. The President’s Task Force assigned to review each detainee’s case found itself hog-tied by the Bush Administration’s sloppy housekeeping: case files were a shambles, incomplete and scattered throughout the government; before they could be read and assessed they had to be found and assembled. That took time not anticipated.
Then, a Federal judge ruled in the matter of the Uighers – Muslims from China – held at GITMO for years without charge or trial. These men had already been cleared for release – but where were they to go? They couldn’t be sent home to China, where they surely would face China’s merciless justice system. So the DOJ and the State Department worked overtime, trotting out all the blandishments and incentives only a superpower has to dispense in an effort to cajole countries to become Uighur hosts.
Amidst this genuine – and exhausting -- effort, a Federal Judge took up the Uighurs' case. Designated innocent, scheduled for release, and yet still imprisoned for years. The judge stopped just short of a heart attack when he ruled that the Uighurs should be brought to the United States for resettlement with families here that were awaiting them.
Predictably, the government appealed that decision, and the appeals court ruled that courts could not made immigration regulations; that was the job of the Department of Homeland Security.
But while the lower court decision was overturned, the tiger was out of the bag. Congress had picked up on the possibility that exonerated GITMO detainees would soon be running up and down the main streets of America, bumping into you at the Mall.
It didn’t take much for our courageous lawmakers – on both sides of the aisle – to show how much they appreciated Obama’s respect for the rule of law. In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial.
Trial. Oh yes, that was back in the days when civilian Federal trials for GITMO detainees were still on the table. Most legal experts, legal and human rights organizations, the entire Administration and at least a few in Congress, insisted that trials in Article Three courts were most likely to result in real justice.
The self-described mastermind of the 9/11 attacks, Khalid Sheikh Mohammed (KSM), was to be the first to be tried and his trial would take place in Federal Court in New York City (home of dozens of other terrorist trials). Mayor Bloomberg of New York was enthusiastic about all the attention and tourist dollars this trial would bring to his city. And he said so. But then he went quiet. For days nothing was heard from him. And the next time he surfaced, he was embraced by the New York City Congressional delegation, and he and they had taken a 180-degree turn. Federal trials in New York: Bad Idea.
This despite the fact that dozens of accused terrorists – including Zacarias Moussaoui, dubbed the “20th hijacker,” have been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.
But Obama was not to be easily deterred. While Congress and the administration’s critics were becoming increasing apoplectic about the prospect of meeting a terrorist in the men’s room of the U.S. Courthouse in Manhattan, the Obama team readied itself for its first trial of a GITMO detainee to be held in the Continental U.S.
It was not KSM, however. It was a man who would perhaps provide a dress rehearsal for a KSM trial later. His name was Ahmed Khalfan Ghailani, accused of participating in the 1998 bombings of American Embassies in East Africa.
After 41/2 days of deliberation, the jury cleared Ghailani of more than 280 counts, including the top charges of murder and murder conspiracy, and convicted him on one count: conspiracy. He faces a mandatory 20-year-to-life sentence for the conviction.
Supporters of Federal trials for GITMO detainees noted that virtually no one noticed a terrorist trial in progress, and said the verdict vindicated the U.S. justice system; opponents pointed to the one-out-of-281-count conviction, and fanaticized about Ghailani on parole, enjoying breakfast at McDonalds.
New York Republican Rep. Pete King, who has bitterly opposed Federal trials, called the mixed verdict "a disgraceful miscarriage of justice."
Congress sided with King and the trial’s many other opponents. It cut off funding for the transport of any GITMO detainee to the U.S. for any purpose whatever.
Ergo, the Administration is left with only bad options, and not many of those. It can forget about trials altogether. These prisoners will just make up part of the group that, regardless of any other factors, the Administration intends to hold indefinitely. It can continue to try to find countries to host those inmates cleared for release (the largest single group of these is from Yemen; and there is currently a ban on repatriating anyone to Yemen because of the recent reported Al Qaeda activity there). Or it can revert to the quaint system of justice fashioned by the George W. Bush Administration: the Military Commission.
That’s the road it is reportedly taking. And that news has furnished critics with a large, loud microphone.
Lawyers who are intimately familiar with the Military Commission system say it is not designed to produce justice; it is designed to produce convictions. They call it a second-class justice system.
Morris Davis, former chief prosecutor at Guantanamo Bay, and now executive director of the Crimes of War Project, told The Public Record, “In more than nine years since President Bush authorized military commissions, we’ve conducted a total of five trials and generated nothing but universal condemnation. We’re long past the question of whether we could do them to one of whether we should. Putting lipstick on this pig is not going to convince anyone that she’s been transformed into lady justice.”
Another GITMO veteran, Darrell J. Vandeveld, who resigned his appointment as a prosecutor before a Guantanamo military commission because of a serious ethical issue, told us, "Right after the President issued the order to close the prison, nothing good will come out of Guantanamo for years. Nothing has been accomplished during this hiatus except to demonstrate that military commissions are inferior, deeply-flawed ‘courts,’ that have delivered, in the few cases tried, inferior justice and utterly inferior results. Ghailani will likely receive a life sentence; Omar Khadr will likely be a free man in less than two years. The prior administration's politicization of the military is unprecedented, and, as we see, ruinous. The current administration is only rejoining this fin de siecle circus."
David Frakt also has equally serious doubts about the legitimacy of the Military Commissions.
It was Frakt who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial.
Frakt argued that Hartmann had "...exercised unlawful command influence. Frakt also argued, during his challenge of Hartmann's unlawful influence, that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.
Frakt argued that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."
Frakt told The Public Record, “The Administration’s plan to restart the flawed military commissions in Guantanamo demonstrates that they have caved in to the bullies in Congress who have used fearmongering and disinformation to preempt the best and most appropriate option for prosecution of the few real terrorists at Guantanamo -- federal criminal trials.”
He continued: “The apparent willingness of the Administration to allow a detainee who was admittedly tortured to be prosecuted for crimes committed well before 9/11, under a theory that the U.S. was in a state of armed conflict (i.e. war) with al Qaeda since 1996, reveals how little has really changed in the current Administration’s approach from the predecessor administration.”
Frakt is now a professor at the Barry University law school.
He added, “Given that President Obama abandoned his campaign pledge to abolish the military commissions and opted to reform them, it is not surprising that the military commissions are resuming. However, President Obama’s stated view that federal courts are the preferred option and that military commissions should only be used for violations of the law of war has clearly changed. Now that military commissions are perceived as the only viable option, the President seems to be willing to allow prosecutions for terrorism offenses regardless of whether they are traditional war crimes.”
Human and civil rights groups are no less vociferous in their condemnation of Military Commissions.
For example, Hina Shamsi, Director of the American Civil Liberties Union (ACLU) National Security Project, told The Pubic Record, “Trying Guantánamo detainees in the military commissions - which are designed to ensure convictions, not fair trials - would be a major step backward for attempts to restore the rule of law.”
She added, ”It is disappointing that the administration seems determined to proceed with the discredited commissions, but has made little progress on prosecuting suspects in the more reliable federal courts. If credible evidence exists against Guantanamo detainees, they should be prosecuted in federal criminal courts, which are fully capable of handling complex terrorism trials and delivering outcomes we can trust.”
Similar sentiments come from Bill Quigley, legal director of the Center for Constitutional Rights (CCR), a public interest law firm that has mobilized dozens of pro-bono private sector lawyers to defend Guantanamo detainees.
Quigley, also a professor at the Loyola University law school, told The Public Record, "We think President Obama has made a major mistake in getting behind military commissions. This is a second class system of justice for the Arab and Muslim men in Guantanamo. This second class system will likely be struck down by the courts and certainly will subject the US to more international condemnation for these violations of human rights."
He added, "Federal courts have worked since our country was founded. They can work now."
Finally, most of the attorneys contacted by The Public Record could find few redeeming qualities in the Military Commissions.
Prof. Peter Shane of the Ohio State University law school reminded us that, “In November, 2009, Attorney General Holder told Congress, ‘The venue in which we are most likely to obtain justice for the American people is in federal court.’ He’s right,” said Prof. Shane.
He continued: “Although the Commission system has been significantly improved through the Military Commissions Act of 2009, it will always be seen as offering a kind of second-class justice, and it is by no means obvious that anyone will be convicted through the Commission system who could not otherwise be prosecuted in federal court.”
He concluded: “The best thing that can be said about the resumption of trials is that formally adjudicating the culpability of the remaining detainees pursuant to reasonably decent procedures is better than indefinite detention without adjudication. Of course, had we not subjected any of the detainees to abusive interrogation – the value of which has been doubted even by the CIA Inspector General – all detainees accused of war crimes could probably have been brought to justice consistent with the rule of law.”
The report in yesterday’s New York Times that the Obama Administration is preparing to resurrect Military Commissions to try Guantanamo detainees probably sounds the death knell for the kind of justice meted out by Federal civilian courts in the U.S. for more than two centuries.
Instead, according to some of the nation’s most respected legal authorities, we are about to slither into the quicksand of a regressive judicial “system” designed, not to dispense justice, but to get convictions.
The Administration’s plans can only be characterized as a defeat. They come exactly two years after the President, on his second day in office, vowed to the American people that he would close the iconic prison at Guantanamo.
Since then, that objective has been immobilized by a perfect storm. The President’s Task Force assigned to review each detainee’s case found itself hog-tied by the Bush Administration’s sloppy housekeeping: case files were a shambles, incomplete and scattered throughout the government; before they could be read and assessed they had to be found and assembled. That took time not anticipated.
Then, a Federal judge ruled in the matter of the Uighers – Muslims from China – held at GITMO for years without charge or trial. These men had already been cleared for release – but where were they to go? They couldn’t be sent home to China, where they surely would face China’s merciless justice system. So the DOJ and the State Department worked overtime, trotting out all the blandishments and incentives only a superpower has to dispense in an effort to cajole countries to become Uighur hosts.
Amidst this genuine – and exhausting -- effort, a Federal Judge took up the Uighurs' case. Designated innocent, scheduled for release, and yet still imprisoned for years. The judge stopped just short of a heart attack when he ruled that the Uighurs should be brought to the United States for resettlement with families here that were awaiting them.
Predictably, the government appealed that decision, and the appeals court ruled that courts could not made immigration regulations; that was the job of the Department of Homeland Security.
But while the lower court decision was overturned, the tiger was out of the bag. Congress had picked up on the possibility that exonerated GITMO detainees would soon be running up and down the main streets of America, bumping into you at the Mall.
It didn’t take much for our courageous lawmakers – on both sides of the aisle – to show how much they appreciated Obama’s respect for the rule of law. In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial.
Trial. Oh yes, that was back in the days when civilian Federal trials for GITMO detainees were still on the table. Most legal experts, legal and human rights organizations, the entire Administration and at least a few in Congress, insisted that trials in Article Three courts were most likely to result in real justice.
The self-described mastermind of the 9/11 attacks, Khalid Sheikh Mohammed (KSM), was to be the first to be tried and his trial would take place in Federal Court in New York City (home of dozens of other terrorist trials). Mayor Bloomberg of New York was enthusiastic about all the attention and tourist dollars this trial would bring to his city. And he said so. But then he went quiet. For days nothing was heard from him. And the next time he surfaced, he was embraced by the New York City Congressional delegation, and he and they had taken a 180-degree turn. Federal trials in New York: Bad Idea.
This despite the fact that dozens of accused terrorists – including Zacarias Moussaoui, dubbed the “20th hijacker,” have been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.
But Obama was not to be easily deterred. While Congress and the administration’s critics were becoming increasing apoplectic about the prospect of meeting a terrorist in the men’s room of the U.S. Courthouse in Manhattan, the Obama team readied itself for its first trial of a GITMO detainee to be held in the Continental U.S.
It was not KSM, however. It was a man who would perhaps provide a dress rehearsal for a KSM trial later. His name was Ahmed Khalfan Ghailani, accused of participating in the 1998 bombings of American Embassies in East Africa.
After 41/2 days of deliberation, the jury cleared Ghailani of more than 280 counts, including the top charges of murder and murder conspiracy, and convicted him on one count: conspiracy. He faces a mandatory 20-year-to-life sentence for the conviction.
Supporters of Federal trials for GITMO detainees noted that virtually no one noticed a terrorist trial in progress, and said the verdict vindicated the U.S. justice system; opponents pointed to the one-out-of-281-count conviction, and fanaticized about Ghailani on parole, enjoying breakfast at McDonalds.
New York Republican Rep. Pete King, who has bitterly opposed Federal trials, called the mixed verdict "a disgraceful miscarriage of justice."
Congress sided with King and the trial’s many other opponents. It cut off funding for the transport of any GITMO detainee to the U.S. for any purpose whatever.
Ergo, the Administration is left with only bad options, and not many of those. It can forget about trials altogether. These prisoners will just make up part of the group that, regardless of any other factors, the Administration intends to hold indefinitely. It can continue to try to find countries to host those inmates cleared for release (the largest single group of these is from Yemen; and there is currently a ban on repatriating anyone to Yemen because of the recent reported Al Qaeda activity there). Or it can revert to the quaint system of justice fashioned by the George W. Bush Administration: the Military Commission.
That’s the road it is reportedly taking. And that news has furnished critics with a large, loud microphone.
Lawyers who are intimately familiar with the Military Commission system say it is not designed to produce justice; it is designed to produce convictions. They call it a second-class justice system.
Morris Davis, former chief prosecutor at Guantanamo Bay, and now executive director of the Crimes of War Project, told The Public Record, “In more than nine years since President Bush authorized military commissions, we’ve conducted a total of five trials and generated nothing but universal condemnation. We’re long past the question of whether we could do them to one of whether we should. Putting lipstick on this pig is not going to convince anyone that she’s been transformed into lady justice.”
Another GITMO veteran, Darrell J. Vandeveld, who resigned his appointment as a prosecutor before a Guantanamo military commission because of a serious ethical issue, told us, "Right after the President issued the order to close the prison, nothing good will come out of Guantanamo for years. Nothing has been accomplished during this hiatus except to demonstrate that military commissions are inferior, deeply-flawed ‘courts,’ that have delivered, in the few cases tried, inferior justice and utterly inferior results. Ghailani will likely receive a life sentence; Omar Khadr will likely be a free man in less than two years. The prior administration's politicization of the military is unprecedented, and, as we see, ruinous. The current administration is only rejoining this fin de siecle circus."
David Frakt also has equally serious doubts about the legitimacy of the Military Commissions.
It was Frakt who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial.
Frakt argued that Hartmann had "...exercised unlawful command influence. Frakt also argued, during his challenge of Hartmann's unlawful influence, that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.
Frakt argued that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."
Frakt told The Public Record, “The Administration’s plan to restart the flawed military commissions in Guantanamo demonstrates that they have caved in to the bullies in Congress who have used fearmongering and disinformation to preempt the best and most appropriate option for prosecution of the few real terrorists at Guantanamo -- federal criminal trials.”
He continued: “The apparent willingness of the Administration to allow a detainee who was admittedly tortured to be prosecuted for crimes committed well before 9/11, under a theory that the U.S. was in a state of armed conflict (i.e. war) with al Qaeda since 1996, reveals how little has really changed in the current Administration’s approach from the predecessor administration.”
Frakt is now a professor at the Barry University law school.
He added, “Given that President Obama abandoned his campaign pledge to abolish the military commissions and opted to reform them, it is not surprising that the military commissions are resuming. However, President Obama’s stated view that federal courts are the preferred option and that military commissions should only be used for violations of the law of war has clearly changed. Now that military commissions are perceived as the only viable option, the President seems to be willing to allow prosecutions for terrorism offenses regardless of whether they are traditional war crimes.”
Human and civil rights groups are no less vociferous in their condemnation of Military Commissions.
For example, Hina Shamsi, Director of the American Civil Liberties Union (ACLU) National Security Project, told The Pubic Record, “Trying Guantánamo detainees in the military commissions - which are designed to ensure convictions, not fair trials - would be a major step backward for attempts to restore the rule of law.”
She added, ”It is disappointing that the administration seems determined to proceed with the discredited commissions, but has made little progress on prosecuting suspects in the more reliable federal courts. If credible evidence exists against Guantanamo detainees, they should be prosecuted in federal criminal courts, which are fully capable of handling complex terrorism trials and delivering outcomes we can trust.”
Similar sentiments come from Bill Quigley, legal director of the Center for Constitutional Rights (CCR), a public interest law firm that has mobilized dozens of pro-bono private sector lawyers to defend Guantanamo detainees.
Quigley, also a professor at the Loyola University law school, told The Public Record, "We think President Obama has made a major mistake in getting behind military commissions. This is a second class system of justice for the Arab and Muslim men in Guantanamo. This second class system will likely be struck down by the courts and certainly will subject the US to more international condemnation for these violations of human rights."
He added, "Federal courts have worked since our country was founded. They can work now."
Finally, most of the attorneys contacted by The Public Record could find few redeeming qualities in the Military Commissions.
Prof. Peter Shane of the Ohio State University law school reminded us that, “In November, 2009, Attorney General Holder told Congress, ‘The venue in which we are most likely to obtain justice for the American people is in federal court.’ He’s right,” said Prof. Shane.
He continued: “Although the Commission system has been significantly improved through the Military Commissions Act of 2009, it will always be seen as offering a kind of second-class justice, and it is by no means obvious that anyone will be convicted through the Commission system who could not otherwise be prosecuted in federal court.”
He concluded: “The best thing that can be said about the resumption of trials is that formally adjudicating the culpability of the remaining detainees pursuant to reasonably decent procedures is better than indefinite detention without adjudication. Of course, had we not subjected any of the detainees to abusive interrogation – the value of which has been doubted even by the CIA Inspector General – all detainees accused of war crimes could probably have been brought to justice consistent with the rule of law.”
Tuesday, January 18, 2011
PATRIOT ACT FOREVER?
By William Fisher
Barring some totally unforeseen development, key provisions of the USA Patriot Act will be renewed for yet another year – and almost no one will have noticed.
Earlier this month, the newly-minted chairman of the House Intelligence Committee, Rep. Mike Rogers, a conservative Republican from Michigan, introduced a bill to extend the law until February 2012.
Since the wording of his bill is virtually identical to the measure quietly passed by Congress last year, approval of the latest extension is likely to occur with little resistance and virtually no debate.
The three provisions likely to remain allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; use so-called National Security Letters (NSLs) to obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not be members of any terrorist organization but who may be acting alone in planning attacks.
The NSL provision is arguably the most controversial part of the law. NSLs are requests for records the FBI can use to obtain people's communication, financial and credit information. No court needs to approve these requests, nor does the FBI have to suspect you of anything. The agency is required only to certify that you are "relevant" to an investigation.
A 2008 audit by the Department of Justice (DOJ) Inspector General found that in the mid-2000s, the FBI issued more than 50,000 NSLs, often seeking information about U.S. citizens and people several times removed from an actual suspect. The DOJ report confirmed that the FBI “regularly abused its ability to obtain personal records of Americans without a warrant.”
If the bill is passed, it would be the second time the president has broken his campaign promise to curtail the surveillance powers given to the FBI when the act was passed by a frightened Congress in the aftermath of the terrorist attacks of September 11, 2001. The original law was approved with only one dissenting vote – from Senator Russ Feingold, Democrat of Wisconsin, who was defeated in the recent mid-term election.
As a presidential candidate in 2007, Obama promised there would be "no more National Security Letters to spy on citizens who are not suspected of a crime" because "that is not who we are, and it is not what is necessary to defeat the terrorists."
Obama's campaign website noted that the then-Senator said he would support an extension of the Patriot Act that strengthened civil liberties protections. But he voted to extend the law in 2005 and 2008, without such increased protections, and also quietly signed last year's extension into law.
FBI and Department of Justice officials maintain that restricting their authority to conduct warrantless searches would harm national security.
Most recently, Obama's DOJ issued an NSL to Twitter, seeking information on the 635,561 users, including media, who followed the WikiLeaks outlet.
The author of the current bill, Rep. Mike Rogers, is a former Army officer and FBI Special Agent who investigated organized crime and public corruption in Chicago in the early 1990s. He has recently recommended the execution of Bradley Manning, the army private suspected of providing the secret and confidential documents now being released by Wikileaks.
With a few notable exceptions, the civil liberties community has been uncharacteristically quiet on the impending extension of the law.
One of the exceptions is Chip Pitts, former Chair of Amnesty International USA and former president and current board and executive committee member of the Bill of Rights Defense Committee (BORDC).
Pitts told The Public Record, “It’s nothing less than tragic that the Patriot Act is about to be renewed again without any significant resistance by our leaders -- political or NGO – or our citizenry.”
Pitts says the BORDC is lobbying Congress on this and other issues on January 27. He said he is “appalled” at the lack of public and organizational opposition, and hopes that “people will go to our website at www.bordc.org and sign up to join us.”
He declared, “It’s clear that without much greater citizen awareness and activism, the institutionalization of this and other egregious infringements on freedom – ranging from routine massive surveillance to indefinite detention to TSA gropes and irradiation – will simply calcify into permanent features of the American legal, political, and cultural landscape.”
“Terrorism doesn’t pose an existential threat to America, but these developments do. We must all act while we still can, and encourage our neighbors and friends to do so,” he said, adding that if there is no public pushback, “This is how democracy dies.”
Requests for comment from The Pubic Record to civil liberties organizations that ordinarily conduct vigorous opposition to the Patriot Act and other bills that restrict freedoms remain unanswered.
But the Patriot Act is of interest to groups other than those on the left. For example, Julian Sanchez of the libertarian Cato Institute says, "In the absence of a major scandal, though, it’s hard to see why we should expect the incentives facing legislators to be vastly different a year from now."
He added. "I’d love to be proven wrong, but I suspect this is how reining in the growth of the surveillance state becomes an item perpetually on next year’s agenda."
Sanchez writes, “A year ago, the protracted wrangling in Congress over the re-authorization of several expiring provisions of the PATRIOT Act made plenty of headlines. Most observers expected the sunsetting powers to be extended, but civil libertarians hoped serious and sorely needed reforms might be part of the package.
“The House and Senate Judiciary Committees held multiple hearings on the topic, and an array of competing reform and reauthorization bills (PDF) were proposed, adding extra safeguards (of varying stringency) to the greatly expanded surveillance powers Congress had approved in the aftermath of the 9/11 attacks.
“But Congress had a full plate, and so it punted—approving a straight one-year reauthorization without any modifications at the last minute. (You’d be forgiven for not noticing: The extension passed under the heading of the “Medicare Physician Payment Reform Act.”) As I noted in December, however, the Justice Department has promised Congress that it will voluntarily adopt some of the measures that had been floated in those reform bills—which would be a fine thing in itself, but I worried that the move seemed calculated to reduce the impetus for binding legislation.
“Well, I’ve just noticed—quite serendipitously, as there doesn’t appear to have been a whisper in the press—that the new House Intelligence Committee Chair, Mike Rogers, has introduced yet another one-year extension, which would push the sunset of the expiring provisions back to the end of February 2012.”
Sanchez writes, “Given the very limited number of days Congress has in session before the current deadline, and the fact that the bill’s Republican sponsor is only seeking another year, I think it’s safe to read this as signaling an agreement across the aisle to put the issue off yet again.”
Most recently, the FBI has asked Congress to expand its authority under the NSL section. It wants the statute that allows it to issue NSLs for phone records, and a limited set of email records, to be expanded to allow the FBI to demand a wide range of Internet activity records as well.
The FBI isn't defining what kinds of Internet records it wants. But some have pointed out that the FBI's proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.
The blog of the American Civil Liberties Union contains one of the relatively few pronouncements to come from the organizations that usually pressure Congress to strengthen the protection of civil and human rights.
The ACLU blog writes that the “FBI's Latest Power Grab Is a Bold and Unnecessary Move.” In the absence of similar expression of opposition from other groups, the ACLU blog is worthy quoting at length,
It says: ”What do the ACLU, the former director of the NSA and a tech industry lawyer all have in common (and this is not a joke)? They believe that the government's recent request to let the FBI get Americans' internet use records in national security investigations without going to court, and without any suspicion of wrongdoing, is a huge expansion of authority that would open floodgates of sensitive information to the FBI.”
The ACLU adds, “The FBI is asking that the statute that allows it to issue NSLs for phone records, and a limited set of email records, be expanded to allow the FBI to demand a wide range of internet activity records as well. The FBI isn't defining what kinds of Internet records it wants. But some have pointed out that the FBI's proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.
“If you're reading this, you obviously use the Internet and know what incredibly sensitive information you put out there each day in an attempt to learn, read, educate yourself and communicate with others. We believe,as you probably do, that Internet records are especially sensitive and need to be protected from FBI snooping by a court order and suspicion requirements.
“The Obama administration says Internet records are the same as the phone records that they are already getting with NSLs. But looking at a list of websites a person visits can tell you a lot more about his or her life than a list of phone numbers and, as mentioned above, law enforcement can create a complete picture of the most sensitive aspects of a person's life by obtaining a list of his or her internet habits.
“Trust us,” says the ACLU blog. “The administration claims that it can't get "content," or the meaning of your communications, just the records of who you contact. However, there isn't a clear and binding rule on whether or which Internet records are content. The administration has said in the past —and has not yet clarified in this debate — that it considers some Internet records to be content and protected by court order.
It is essentially asking Congress and the public just to trust them to make a call on what Internet records should be obtained by the FBI. Regardless of what legal jargon the administration unilaterally has decided covers Internet records, they need to be protected. Congress has the ability and the responsibility to protect our privacy, and it needs to reject administration attempts to authorize this collection.
“Terrorist threats overrule privacy protections (as usual): Just as the government always argues in its attempts to eviscerate the role of the courts, the Obama administration says it needs to be more "nimble," and going to court is prohibitively burdensome. But getting innocent Americans' private records is not supposed to be easy, nor should it be.
“There must be a check of an independent judge and a requirement that you are suspected of doing something wrong. The Fourth Amendment creates a presumption of privacy and does not contain an "inconvenient paperwork" exception. If we are talking about true emergencies, the government already has the authority to get records and follow process after the fact. All of our national security laws have emergency exceptions that allow them to respond to immediate threats.
“Besides, the Justice Department Office of Legal Counsel memo clarifying that most Internet records could not be obtained by NSL was written in November 2008. The administration has undoubtedly been getting these records through other means for almost two years, just with tools that have at least minimal checks and balances.
“This is not ultimately about getting the records; but about doing so in a way that trades convenience for privacy. The administration is asking Congress to give the FBI more of your private information without even going to a judge. We're asking Congress to reject this power grab and side with the Constitution — just as their oath of office demands,” the ACLU blog concludes.
Under the original NSL provision, the FBI also was given the power to prohibit any Internet service provider, bank or credit company from which it demands sensitive customer records from ever disclosing anything about the record demand -- not even to their own attorneys. In other worlds, a “gag rule.”
The ACLU, the American Library Association, and other groups, challenged the constitutionality of this "gag" power in three cases. The result: A federal appeals court ruled unanimously that it is unconstitutional to gag recipients of a National Security Letter from discussing its receipt unless disclosure might interfere with “an authorized investigation to protect against international terrorism or clandestine intelligence activities.”
The decision in Doe v. Mukase by the 2nd U.S. Circuit Court of Appeals upheld a September 2007 district court ruling, although the appeals court narrowed the circumstances under which the FBI can enjoin a provider of internet access, interpreted as including libraries, from revealing the receipt of a National Security Letter demanding the e-mail addresses and websites accessed by one or more users.
American Library Association President Jim Rettig hailed the ruling as “protect[ing] our First Amendment freedoms by placing reasonable limitations on the FBI’s ability to impose a gag order when issuing National Security Letters” as well as “requiring meaningful judicial review when an NSL gag order is challenged”—a process that stretched to 18 months for four Connecticut librarians who successfully fought the NSL they received in 2005. However, he also expressed concern that the decision “does not address the constitutionality of the FBI’s use of NSLs to obtain an individual’s personal data.”
"We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman, staff attorney with the ACLU National Security Project.
"This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government's dangerous gag power and rejected the Bush administration's position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics," she said.
But that was in 2007.
This week, The Public Record asked leaders of the most prominent civil and human rights groups to explain their relatively passive position on the renewal of the Patriot Act. Most did not respond. One who did requested that his name not be used because he is still hoping to energize some of the silent voices.
This is what he told us:
“Many of my colleagues have just given up on the Patriot Act, either expressly or implicitly (in terms of the mindshare, energy, and resources dedicated to the issue). They don’t seem to understand or recall just how foundational this supposedly ‘emergency’ law was in setting the stage for the infringements that came later.”
He continued: “Sheer exhaustion plays a role, but the fact that it’s been nearly a decade means that generational change is even starting to have an impact, as have all the other irons in the fire -- so many other traumatizing events have come up to distract and rightfully demand attention (torture, even broader surveillance, illegal war, assassinations), and a corrosive new so-called realism (cynicism, actually) about the politics of terrorism and the complicity of our fear-driven media and political class, combined of course with a reluctance to undermine our first black president and whatever incremental progressive achievements he can make.”
He concluded: “So the situation’s pretty bleak out there, and will only turn around, in my view, if there is much greater bottom-up, local, and peer-to-peer, community-to-community activism.”
Barring some totally unforeseen development, key provisions of the USA Patriot Act will be renewed for yet another year – and almost no one will have noticed.
Earlier this month, the newly-minted chairman of the House Intelligence Committee, Rep. Mike Rogers, a conservative Republican from Michigan, introduced a bill to extend the law until February 2012.
Since the wording of his bill is virtually identical to the measure quietly passed by Congress last year, approval of the latest extension is likely to occur with little resistance and virtually no debate.
The three provisions likely to remain allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; use so-called National Security Letters (NSLs) to obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not be members of any terrorist organization but who may be acting alone in planning attacks.
The NSL provision is arguably the most controversial part of the law. NSLs are requests for records the FBI can use to obtain people's communication, financial and credit information. No court needs to approve these requests, nor does the FBI have to suspect you of anything. The agency is required only to certify that you are "relevant" to an investigation.
A 2008 audit by the Department of Justice (DOJ) Inspector General found that in the mid-2000s, the FBI issued more than 50,000 NSLs, often seeking information about U.S. citizens and people several times removed from an actual suspect. The DOJ report confirmed that the FBI “regularly abused its ability to obtain personal records of Americans without a warrant.”
If the bill is passed, it would be the second time the president has broken his campaign promise to curtail the surveillance powers given to the FBI when the act was passed by a frightened Congress in the aftermath of the terrorist attacks of September 11, 2001. The original law was approved with only one dissenting vote – from Senator Russ Feingold, Democrat of Wisconsin, who was defeated in the recent mid-term election.
As a presidential candidate in 2007, Obama promised there would be "no more National Security Letters to spy on citizens who are not suspected of a crime" because "that is not who we are, and it is not what is necessary to defeat the terrorists."
Obama's campaign website noted that the then-Senator said he would support an extension of the Patriot Act that strengthened civil liberties protections. But he voted to extend the law in 2005 and 2008, without such increased protections, and also quietly signed last year's extension into law.
FBI and Department of Justice officials maintain that restricting their authority to conduct warrantless searches would harm national security.
Most recently, Obama's DOJ issued an NSL to Twitter, seeking information on the 635,561 users, including media, who followed the WikiLeaks outlet.
The author of the current bill, Rep. Mike Rogers, is a former Army officer and FBI Special Agent who investigated organized crime and public corruption in Chicago in the early 1990s. He has recently recommended the execution of Bradley Manning, the army private suspected of providing the secret and confidential documents now being released by Wikileaks.
With a few notable exceptions, the civil liberties community has been uncharacteristically quiet on the impending extension of the law.
One of the exceptions is Chip Pitts, former Chair of Amnesty International USA and former president and current board and executive committee member of the Bill of Rights Defense Committee (BORDC).
Pitts told The Public Record, “It’s nothing less than tragic that the Patriot Act is about to be renewed again without any significant resistance by our leaders -- political or NGO – or our citizenry.”
Pitts says the BORDC is lobbying Congress on this and other issues on January 27. He said he is “appalled” at the lack of public and organizational opposition, and hopes that “people will go to our website at www.bordc.org and sign up to join us.”
He declared, “It’s clear that without much greater citizen awareness and activism, the institutionalization of this and other egregious infringements on freedom – ranging from routine massive surveillance to indefinite detention to TSA gropes and irradiation – will simply calcify into permanent features of the American legal, political, and cultural landscape.”
“Terrorism doesn’t pose an existential threat to America, but these developments do. We must all act while we still can, and encourage our neighbors and friends to do so,” he said, adding that if there is no public pushback, “This is how democracy dies.”
Requests for comment from The Pubic Record to civil liberties organizations that ordinarily conduct vigorous opposition to the Patriot Act and other bills that restrict freedoms remain unanswered.
But the Patriot Act is of interest to groups other than those on the left. For example, Julian Sanchez of the libertarian Cato Institute says, "In the absence of a major scandal, though, it’s hard to see why we should expect the incentives facing legislators to be vastly different a year from now."
He added. "I’d love to be proven wrong, but I suspect this is how reining in the growth of the surveillance state becomes an item perpetually on next year’s agenda."
Sanchez writes, “A year ago, the protracted wrangling in Congress over the re-authorization of several expiring provisions of the PATRIOT Act made plenty of headlines. Most observers expected the sunsetting powers to be extended, but civil libertarians hoped serious and sorely needed reforms might be part of the package.
“The House and Senate Judiciary Committees held multiple hearings on the topic, and an array of competing reform and reauthorization bills (PDF) were proposed, adding extra safeguards (of varying stringency) to the greatly expanded surveillance powers Congress had approved in the aftermath of the 9/11 attacks.
“But Congress had a full plate, and so it punted—approving a straight one-year reauthorization without any modifications at the last minute. (You’d be forgiven for not noticing: The extension passed under the heading of the “Medicare Physician Payment Reform Act.”) As I noted in December, however, the Justice Department has promised Congress that it will voluntarily adopt some of the measures that had been floated in those reform bills—which would be a fine thing in itself, but I worried that the move seemed calculated to reduce the impetus for binding legislation.
“Well, I’ve just noticed—quite serendipitously, as there doesn’t appear to have been a whisper in the press—that the new House Intelligence Committee Chair, Mike Rogers, has introduced yet another one-year extension, which would push the sunset of the expiring provisions back to the end of February 2012.”
Sanchez writes, “Given the very limited number of days Congress has in session before the current deadline, and the fact that the bill’s Republican sponsor is only seeking another year, I think it’s safe to read this as signaling an agreement across the aisle to put the issue off yet again.”
Most recently, the FBI has asked Congress to expand its authority under the NSL section. It wants the statute that allows it to issue NSLs for phone records, and a limited set of email records, to be expanded to allow the FBI to demand a wide range of Internet activity records as well.
The FBI isn't defining what kinds of Internet records it wants. But some have pointed out that the FBI's proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.
The blog of the American Civil Liberties Union contains one of the relatively few pronouncements to come from the organizations that usually pressure Congress to strengthen the protection of civil and human rights.
The ACLU blog writes that the “FBI's Latest Power Grab Is a Bold and Unnecessary Move.” In the absence of similar expression of opposition from other groups, the ACLU blog is worthy quoting at length,
It says: ”What do the ACLU, the former director of the NSA and a tech industry lawyer all have in common (and this is not a joke)? They believe that the government's recent request to let the FBI get Americans' internet use records in national security investigations without going to court, and without any suspicion of wrongdoing, is a huge expansion of authority that would open floodgates of sensitive information to the FBI.”
The ACLU adds, “The FBI is asking that the statute that allows it to issue NSLs for phone records, and a limited set of email records, be expanded to allow the FBI to demand a wide range of internet activity records as well. The FBI isn't defining what kinds of Internet records it wants. But some have pointed out that the FBI's proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.
“If you're reading this, you obviously use the Internet and know what incredibly sensitive information you put out there each day in an attempt to learn, read, educate yourself and communicate with others. We believe,as you probably do, that Internet records are especially sensitive and need to be protected from FBI snooping by a court order and suspicion requirements.
“The Obama administration says Internet records are the same as the phone records that they are already getting with NSLs. But looking at a list of websites a person visits can tell you a lot more about his or her life than a list of phone numbers and, as mentioned above, law enforcement can create a complete picture of the most sensitive aspects of a person's life by obtaining a list of his or her internet habits.
“Trust us,” says the ACLU blog. “The administration claims that it can't get "content," or the meaning of your communications, just the records of who you contact. However, there isn't a clear and binding rule on whether or which Internet records are content. The administration has said in the past —and has not yet clarified in this debate — that it considers some Internet records to be content and protected by court order.
It is essentially asking Congress and the public just to trust them to make a call on what Internet records should be obtained by the FBI. Regardless of what legal jargon the administration unilaterally has decided covers Internet records, they need to be protected. Congress has the ability and the responsibility to protect our privacy, and it needs to reject administration attempts to authorize this collection.
“Terrorist threats overrule privacy protections (as usual): Just as the government always argues in its attempts to eviscerate the role of the courts, the Obama administration says it needs to be more "nimble," and going to court is prohibitively burdensome. But getting innocent Americans' private records is not supposed to be easy, nor should it be.
“There must be a check of an independent judge and a requirement that you are suspected of doing something wrong. The Fourth Amendment creates a presumption of privacy and does not contain an "inconvenient paperwork" exception. If we are talking about true emergencies, the government already has the authority to get records and follow process after the fact. All of our national security laws have emergency exceptions that allow them to respond to immediate threats.
“Besides, the Justice Department Office of Legal Counsel memo clarifying that most Internet records could not be obtained by NSL was written in November 2008. The administration has undoubtedly been getting these records through other means for almost two years, just with tools that have at least minimal checks and balances.
“This is not ultimately about getting the records; but about doing so in a way that trades convenience for privacy. The administration is asking Congress to give the FBI more of your private information without even going to a judge. We're asking Congress to reject this power grab and side with the Constitution — just as their oath of office demands,” the ACLU blog concludes.
Under the original NSL provision, the FBI also was given the power to prohibit any Internet service provider, bank or credit company from which it demands sensitive customer records from ever disclosing anything about the record demand -- not even to their own attorneys. In other worlds, a “gag rule.”
The ACLU, the American Library Association, and other groups, challenged the constitutionality of this "gag" power in three cases. The result: A federal appeals court ruled unanimously that it is unconstitutional to gag recipients of a National Security Letter from discussing its receipt unless disclosure might interfere with “an authorized investigation to protect against international terrorism or clandestine intelligence activities.”
The decision in Doe v. Mukase by the 2nd U.S. Circuit Court of Appeals upheld a September 2007 district court ruling, although the appeals court narrowed the circumstances under which the FBI can enjoin a provider of internet access, interpreted as including libraries, from revealing the receipt of a National Security Letter demanding the e-mail addresses and websites accessed by one or more users.
American Library Association President Jim Rettig hailed the ruling as “protect[ing] our First Amendment freedoms by placing reasonable limitations on the FBI’s ability to impose a gag order when issuing National Security Letters” as well as “requiring meaningful judicial review when an NSL gag order is challenged”—a process that stretched to 18 months for four Connecticut librarians who successfully fought the NSL they received in 2005. However, he also expressed concern that the decision “does not address the constitutionality of the FBI’s use of NSLs to obtain an individual’s personal data.”
"We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman, staff attorney with the ACLU National Security Project.
"This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government's dangerous gag power and rejected the Bush administration's position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics," she said.
But that was in 2007.
This week, The Public Record asked leaders of the most prominent civil and human rights groups to explain their relatively passive position on the renewal of the Patriot Act. Most did not respond. One who did requested that his name not be used because he is still hoping to energize some of the silent voices.
This is what he told us:
“Many of my colleagues have just given up on the Patriot Act, either expressly or implicitly (in terms of the mindshare, energy, and resources dedicated to the issue). They don’t seem to understand or recall just how foundational this supposedly ‘emergency’ law was in setting the stage for the infringements that came later.”
He continued: “Sheer exhaustion plays a role, but the fact that it’s been nearly a decade means that generational change is even starting to have an impact, as have all the other irons in the fire -- so many other traumatizing events have come up to distract and rightfully demand attention (torture, even broader surveillance, illegal war, assassinations), and a corrosive new so-called realism (cynicism, actually) about the politics of terrorism and the complicity of our fear-driven media and political class, combined of course with a reluctance to undermine our first black president and whatever incremental progressive achievements he can make.”
He concluded: “So the situation’s pretty bleak out there, and will only turn around, in my view, if there is much greater bottom-up, local, and peer-to-peer, community-to-community activism.”
Thursday, January 13, 2011
GITMO by the Numbers
By William Fisher
As the U.S. prison at Guantanamo Bay, Cuba, enters its tenth year, a Washington think tank is challenging intelligence estimates suggesting that large numbers of released detainees have taken up arms against the United States.
Director of National Intelligence (DNI) James Clapper claimed in December -- that 13.5 percent of former Guantanamo detainees are “confirmed” to have “returned to the battlefield” and an additional 11.5 percent are suspected of "reengaging" in terrorist or insurgent activities after their release.
Conservatives, along with the corporate media, embraced the government narrative that as many as one in four former detainees had returned to the battlefield, up sharply from the prior year.
However, the DNI did not offer any evidence.
But three scholars with the New America Foundation are out with a new analysis backed up with data. The authors -- Peter Bergen, Katherine Tiedemann, and Andrew Lebovich -- conclude that only six percent of released detainees – not 13.5 per cent – are engaged with or are “suspected of having engaged with” insurgents aimed at attacking U.S. interests. Another two percent have engaged or are suspected of having engaged against non-U.S. targets, the NAF analysis said.
A total of almost 800 men have been held at Guantánamo at one time or another since it opened in January 2002, and around 600 have been released.
Members of an NAF panel Tuesday afternoon also challenged the notion that some detainees "returned" to the battlefield, noting that many were innocent to begin with.
It has long been known that something approaching 95 per cent of GITMO prisoners were not captured by American forces, but were sold to the Americans for bounty.
Panelist Andy Worthington, a British freelance journalist who tracks Guantanamo detainees, said he was concerned at how the recidivism figures were "conjured up out of nowhere" but treated as fact by many mainstream media outlets. "It's bad journalism," he said.
Most reports also lacked context. "You don't have anything like a zero
recidivism rate in any prison system," he said. The average recidivism rate in U.S. prisons is slightly over 50 per cent within three years of release.
The NAF figures were cited by conservatives to support their arguments against closing Guantanamo. Democrats, afraid of the political repercussions, joined with Republicans to include provisions in the latest defense authorization bill intended to prevent Obama from closing Guantanamo.
Obama last week called those provisions "dangerous and unprecedented."
"Every day that a place like Guantanamo is open is an insult to values that
decent American people hold," Worthington said.
The NAF analysis is far from the first to find fault with the government’s figures. Earlier, reports from Seton Hall Law School and Syracuse University’s Transactional Clearing House (TRAC) charged that the DNI reports were inaccurate, lacking supporting data, and slanted to put the most undesirable face on the issue.
In 2009, Professor Mark Denbeaux of the Seton Hall University law school issued another of the school’s reports on recidivism at GITMO, and told this reporter that the U.S. Defense Department was “issuing questionable data on the number of Guantanamo detainees who have been released and then returned to the battlefield.”
He said the reason was because the government “is now in a position where they have to find some bad guys—even if they have to invent them by naming people who were never there.”
Their ultimate aim, said, “is to foment fear among American voters and limit the freedom of the Obama administration to release any of the detainees still imprisoned.”
Denbeaux heads the law school’s Center for Policy and Research. He claimed the Center’s 2009 report “rebuts and debunks” the most recent claim by the Department of Defense that 61 “former Guantánamo detainees are confirmed or suspected of returning to the fight.”
Prof. Denbeaux said, “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies. Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have has issued ‘recidivism’ numbers 43 times, and each time they have included people who have never even set foot in Guantánamo—much less were they released from there.”
He added, “They have counted people as ‘returning to the fight’ for their having written an op-ed piece in the New York Times and for their having appeared in a documentary exhibited at the Cannes Film Festival.”
Denbeaux said that the government’s numbers are also “seriously undercut by the DOD statement that ‘they do not track’ former detainees.”
He told us that previous DOD reports have said the numbers of recidivist detainees have been “one, several, some, a couple, a few, five, seven, 10, 12, 15, 12-24, 25, 29, and 30.”
But he claims that in the two instances in which DOD provided written support—
July 12, 2007 and May 20, 2008—their previous oral assertions were repudiated. For instance, the report said, in DOD’s July 12, 2007, news release, “the 30 recidivists reported by DOD in April 2007 is reduced to five.”
DOD’s report of July 2007 identified seven prisoners by name, but the Seton Hall group said that “as many as two of those seven named were never in Guantanamo, and two of the remaining five were never killed or captured anywhere. Of the three remaining, one was killed in his apartment in Russia by Russian authorities. None of them is alleged to have left their homeland or attacked Americans on a battlefield or otherwise.”
Prof. Denbeaux concluded: “Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantánamo—much less were they released from there.”
Meanwhile, the Obama Administration’s pledge to close Guantanamo within a year of his inauguration – or at any other time – receded into neverland when Congress voted to block Obama from bringing Guantanamo Bay detainees to the United States for trial, including the self-proclaimed mastermind of the Sept. 11, 2001 attacks, Khalid Sheikh Mohammed.
The transfer ban was tucked into a critical government funding bill that Obama was obliged to sign into law. He called the GITMO provision “dangerous.”
The Congressional action also drew fierce opposition from Attorney General Eric H. Holder Jr. Holder announced in the fall of 2009 that Mohammed and four other al-Qaeda detainees would go on trial in Manhattan federal court.
New York officials, once enthusiastic about hosting the high-profile trials, soon objected to them. They said they would be expensive and dangerous. Administration officials said in March that New York was no longer a possibility and that the detainees would probably be tried by military commission.
New York’s objection was part of a Congress-wide reaction against Gitmo detainees coming to the U.S. for any reason, including trial. Lawmakers whipped up a firestorm of hysteria over terrorists being set free in U.S. towns and cities. Since then, there has been no decision on where the trials should be held.
The chance that civilian trials were in the offing grew even remote when Ahmed Ghailani, the first Guantanamo detainee brought to the United States for trial, was acquitted of 284 counts for his role in the 1998 U.S. embassy bombings in East Africa. He was convicted on only one count of conspiracy, and he could face life in prison.
The lack of a “big victory” forced administration officials to conclude that they had to hold detainees such as Mohammed indefinitely while proceeding with a select number of military commissions.
The attorney general said, "I also want to emphasize in the strongest possible terms that on a very personal level and as the person who knows these cases better than anybody, anybody, that this legislation is unwise. It takes away from the Justice Department, from our investigative agencies; it takes away from the American people the ability to hold accountable people who have committed mass murder, people who intended to harm, kill American citizens.''
There are 173 detainees still at GITMO, including three who have been convicted or have reached plea deals with the Military Commissions. There are 89 who have been cleared for release but who have not been released for a variety of reasons. In some cases, countries have not been identified who are willing to take them. Fifty-eight of those remaining are from Yemen; all transfers to that country have been shut down since a Yemeni-trained Nigerian tried to blow up an airliner over Detroit last Christmas day.
An undetermined number of prisoners are slated to be tried by Military Commissions. Assuming all of this occurs, there will still be a group of prisoners who authorities deem “too hard to try, too dangerous to release.” These are the men who can look forward to indefinite detention without charge, although, for many of them, the reason they cannot be tried is that evidence against them was obtained through torture or other “enhanced interrogation techniques” during the George W. Bush Administration.
As the U.S. prison at Guantanamo Bay, Cuba, enters its tenth year, a Washington think tank is challenging intelligence estimates suggesting that large numbers of released detainees have taken up arms against the United States.
Director of National Intelligence (DNI) James Clapper claimed in December -- that 13.5 percent of former Guantanamo detainees are “confirmed” to have “returned to the battlefield” and an additional 11.5 percent are suspected of "reengaging" in terrorist or insurgent activities after their release.
Conservatives, along with the corporate media, embraced the government narrative that as many as one in four former detainees had returned to the battlefield, up sharply from the prior year.
However, the DNI did not offer any evidence.
But three scholars with the New America Foundation are out with a new analysis backed up with data. The authors -- Peter Bergen, Katherine Tiedemann, and Andrew Lebovich -- conclude that only six percent of released detainees – not 13.5 per cent – are engaged with or are “suspected of having engaged with” insurgents aimed at attacking U.S. interests. Another two percent have engaged or are suspected of having engaged against non-U.S. targets, the NAF analysis said.
A total of almost 800 men have been held at Guantánamo at one time or another since it opened in January 2002, and around 600 have been released.
Members of an NAF panel Tuesday afternoon also challenged the notion that some detainees "returned" to the battlefield, noting that many were innocent to begin with.
It has long been known that something approaching 95 per cent of GITMO prisoners were not captured by American forces, but were sold to the Americans for bounty.
Panelist Andy Worthington, a British freelance journalist who tracks Guantanamo detainees, said he was concerned at how the recidivism figures were "conjured up out of nowhere" but treated as fact by many mainstream media outlets. "It's bad journalism," he said.
Most reports also lacked context. "You don't have anything like a zero
recidivism rate in any prison system," he said. The average recidivism rate in U.S. prisons is slightly over 50 per cent within three years of release.
The NAF figures were cited by conservatives to support their arguments against closing Guantanamo. Democrats, afraid of the political repercussions, joined with Republicans to include provisions in the latest defense authorization bill intended to prevent Obama from closing Guantanamo.
Obama last week called those provisions "dangerous and unprecedented."
"Every day that a place like Guantanamo is open is an insult to values that
decent American people hold," Worthington said.
The NAF analysis is far from the first to find fault with the government’s figures. Earlier, reports from Seton Hall Law School and Syracuse University’s Transactional Clearing House (TRAC) charged that the DNI reports were inaccurate, lacking supporting data, and slanted to put the most undesirable face on the issue.
In 2009, Professor Mark Denbeaux of the Seton Hall University law school issued another of the school’s reports on recidivism at GITMO, and told this reporter that the U.S. Defense Department was “issuing questionable data on the number of Guantanamo detainees who have been released and then returned to the battlefield.”
He said the reason was because the government “is now in a position where they have to find some bad guys—even if they have to invent them by naming people who were never there.”
Their ultimate aim, said, “is to foment fear among American voters and limit the freedom of the Obama administration to release any of the detainees still imprisoned.”
Denbeaux heads the law school’s Center for Policy and Research. He claimed the Center’s 2009 report “rebuts and debunks” the most recent claim by the Department of Defense that 61 “former Guantánamo detainees are confirmed or suspected of returning to the fight.”
Prof. Denbeaux said, “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies. Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have has issued ‘recidivism’ numbers 43 times, and each time they have included people who have never even set foot in Guantánamo—much less were they released from there.”
He added, “They have counted people as ‘returning to the fight’ for their having written an op-ed piece in the New York Times and for their having appeared in a documentary exhibited at the Cannes Film Festival.”
Denbeaux said that the government’s numbers are also “seriously undercut by the DOD statement that ‘they do not track’ former detainees.”
He told us that previous DOD reports have said the numbers of recidivist detainees have been “one, several, some, a couple, a few, five, seven, 10, 12, 15, 12-24, 25, 29, and 30.”
But he claims that in the two instances in which DOD provided written support—
July 12, 2007 and May 20, 2008—their previous oral assertions were repudiated. For instance, the report said, in DOD’s July 12, 2007, news release, “the 30 recidivists reported by DOD in April 2007 is reduced to five.”
DOD’s report of July 2007 identified seven prisoners by name, but the Seton Hall group said that “as many as two of those seven named were never in Guantanamo, and two of the remaining five were never killed or captured anywhere. Of the three remaining, one was killed in his apartment in Russia by Russian authorities. None of them is alleged to have left their homeland or attacked Americans on a battlefield or otherwise.”
Prof. Denbeaux concluded: “Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantánamo—much less were they released from there.”
Meanwhile, the Obama Administration’s pledge to close Guantanamo within a year of his inauguration – or at any other time – receded into neverland when Congress voted to block Obama from bringing Guantanamo Bay detainees to the United States for trial, including the self-proclaimed mastermind of the Sept. 11, 2001 attacks, Khalid Sheikh Mohammed.
The transfer ban was tucked into a critical government funding bill that Obama was obliged to sign into law. He called the GITMO provision “dangerous.”
The Congressional action also drew fierce opposition from Attorney General Eric H. Holder Jr. Holder announced in the fall of 2009 that Mohammed and four other al-Qaeda detainees would go on trial in Manhattan federal court.
New York officials, once enthusiastic about hosting the high-profile trials, soon objected to them. They said they would be expensive and dangerous. Administration officials said in March that New York was no longer a possibility and that the detainees would probably be tried by military commission.
New York’s objection was part of a Congress-wide reaction against Gitmo detainees coming to the U.S. for any reason, including trial. Lawmakers whipped up a firestorm of hysteria over terrorists being set free in U.S. towns and cities. Since then, there has been no decision on where the trials should be held.
The chance that civilian trials were in the offing grew even remote when Ahmed Ghailani, the first Guantanamo detainee brought to the United States for trial, was acquitted of 284 counts for his role in the 1998 U.S. embassy bombings in East Africa. He was convicted on only one count of conspiracy, and he could face life in prison.
The lack of a “big victory” forced administration officials to conclude that they had to hold detainees such as Mohammed indefinitely while proceeding with a select number of military commissions.
The attorney general said, "I also want to emphasize in the strongest possible terms that on a very personal level and as the person who knows these cases better than anybody, anybody, that this legislation is unwise. It takes away from the Justice Department, from our investigative agencies; it takes away from the American people the ability to hold accountable people who have committed mass murder, people who intended to harm, kill American citizens.''
There are 173 detainees still at GITMO, including three who have been convicted or have reached plea deals with the Military Commissions. There are 89 who have been cleared for release but who have not been released for a variety of reasons. In some cases, countries have not been identified who are willing to take them. Fifty-eight of those remaining are from Yemen; all transfers to that country have been shut down since a Yemeni-trained Nigerian tried to blow up an airliner over Detroit last Christmas day.
An undetermined number of prisoners are slated to be tried by Military Commissions. Assuming all of this occurs, there will still be a group of prisoners who authorities deem “too hard to try, too dangerous to release.” These are the men who can look forward to indefinite detention without charge, although, for many of them, the reason they cannot be tried is that evidence against them was obtained through torture or other “enhanced interrogation techniques” during the George W. Bush Administration.
Wednesday, January 05, 2011
Convicted of Nothing, but Held in Solitary Anyway
By William Fisher
While Julian Assange, the head of Wikileaks, conducts international media interviews from a manor house in the English countryside, Pfc. Bradley Manning, the soldier the military reportedly believes is responsible for providing Wikileaks’ information, languishes in solitary confinement in a Marine brig.
Now, a group of respected professional psychologists has asked Defense Secretary Gates to change the conditions of his imprisonment because “solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it.”
Psychologists for Social Responsibility (sySR) says it is “deeply concerned about Manning’s pretrial detention conditions, including solitary confinement for over five months, a forced lack of exercise, and possible sleep deprivation.
It has been reported by his attorney and a visitor that Manning's mental health is suffering from his treatment.”
In their Open Letter to Secretary Gates, the psychologists’ group says, “Manning has been held in solitary confinement since July of 2010. He reportedly is held in his cell for approximately 23 hours a day, a cell approximately six feet wide and twelve feet in length, with a bed, a drinking fountain, and a toilet.”
The group adds, “For no discernable reason other than punishment, he is forbidden from exercising in his cell and is provided minimal access to exercise outside his cell. Further, despite having virtually nothing to do, he is forbidden to sleep during the day and often has his sleep at night disrupted.”
The letter continues: “As an organization of psychologists and other mental health professionals, sySR is aware that solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it. We therefore call or a revision in the conditions of PFC Manning’s incarceration while he awaits trial, based on the exhaustive documentation and research that have determined that solitary confinement is, at the very least, a form of cruel, unusual and inhumane treatment in violation of U.S. law.”
The group says the conditions of isolation to which PFC Manning, as well as many other U.S. prisoners are subjected, are sufficiently harsh as to have aroused international concern. In the most recent report of the UN Committee against Torture, the Committee equates Manning’s treatment with that meted out to prisoners in “supermaximum prisons.
The Committee said it is concerned about the “prolonged isolation periods detainees are subjected to, the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment.”
PsySR charges that in addition to the “needless brutality” of the conditions to which PFC Manning is being subjected, it is “concerned that the coercive nature of these conditions -- along with their serious psychological effects such as depression, paranoia, or hopelessness -- may undermine his ability to meaningfully cooperate with his defense, undermining his right to a fair trial.”
The group cited the views of Dr. Craig Haney, a psychologist and expert in the assessment of institutional environments. He said, “Empirical research on solitary and supermax-like confinement has consistently and unequivocally documented the harmful consequences of living in these kinds of environments . . .”
Dr. Haney concludes, “To summarize, there is not a single published study of solitary or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days where participants were unable to terminate their isolation at will that failed to result in negative psychological effects”
Trudy Bond, Ph.D., a member of the organization’s Steering Committee, and Stephen Soldz, Ph.D., President of the organization, signs the letter.
Other civil libertarians have also weighed in on the Manning issue. Last week, the legal logger Glenn Greenwald of Salon described Manning’s solitary confinement. Greenwald also said his treatment was equivalent to being in a Supermax prison. He described it as torture, and wrote:
“In sum, Manning has been subjected for many months without pause to inhumane, personality-erasing, soul-destroying, insanity-inducing conditions of isolation similar to those perfected at America’s Supermax prison in Florence, Colorado: all without so much as having been convicted of anything. And as is true of many prisoners subjected to warped treatment of this sort, the brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.”
Letter signatory Bond approached Manning’s situation from her vantage point as a professional psychologist. She told The Public Record, “People are social creatures. We need to interact with others to be truly alive. Solitary confinement is an extremely painful punishment that threatens a person’s mental stability. It is appalling to have Bradley Manning, a person not convicted of any crime, subjected to this harsh punishment,” she said, adding,
“Solitary confinement, rather than being a rational response to a risk, is more often used as a punishment for someone who is considered to be a member of a despised or 'dangerous' group. As with all torture and inhumane treatment, it is meant to intimidate both the victim and society at large."
Human rights advocates were virtually unanimous regarding what they see as the injustice of Manning’s confinement. Bill Quigley, Legal Director of the Center for Constitutional Rights (CCR), put it this way:
“The US treatment of Bradley Manning is clearly punitive and designed to deter others from leaking information about illegal actions of the US. It is also coercive in order to force him to identify other people who might be prosecuted. This is very similar to what the US has been doing in Guantanamo.”
He told The Public Record, “Under US and international human rights law people are supposed to be innocent until proven guilty. International law recognizes prolonged solitary confinement as akin to torture. The US treatment of Manning violates the spirit of law, human rights, human dignity, and fair play. It is unjust.”
A similar view was expressed by Chip Pitts, a lecturer in law at Stanford University law school and Oxford University and an Executive Board member of the Bill of Rights Defense Committee. Pitts told The Public Record:
“The unusual conditions imposed on PFC Manning should concern us all. In whatever light one views his actions – and many appropriately highlight the whistleblowing aspects and crimes he revealed – the harsh treatment reported is inconsistent with any reasonable system of justice and would clearly constitute inappropriate pre-trial punishment for offenses not yet adjudicated.”
He continued: “It is illegal and immoral, jeopardizing his ability to defend himself in the future. Have both our military and civilian systems been irrevocably tainted by the recourse to torture and cruel, inhuman, and degrading treatment in recent years? Or is this another instance of mindless ‘revenge’ of the establishment for deviations from orthodoxy? In any case, the conduct is unbecoming the military and our legal system and must stop at once.
While Julian Assange, the head of Wikileaks, conducts international media interviews from a manor house in the English countryside, Pfc. Bradley Manning, the soldier the military reportedly believes is responsible for providing Wikileaks’ information, languishes in solitary confinement in a Marine brig.
Now, a group of respected professional psychologists has asked Defense Secretary Gates to change the conditions of his imprisonment because “solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it.”
Psychologists for Social Responsibility (sySR) says it is “deeply concerned about Manning’s pretrial detention conditions, including solitary confinement for over five months, a forced lack of exercise, and possible sleep deprivation.
It has been reported by his attorney and a visitor that Manning's mental health is suffering from his treatment.”
In their Open Letter to Secretary Gates, the psychologists’ group says, “Manning has been held in solitary confinement since July of 2010. He reportedly is held in his cell for approximately 23 hours a day, a cell approximately six feet wide and twelve feet in length, with a bed, a drinking fountain, and a toilet.”
The group adds, “For no discernable reason other than punishment, he is forbidden from exercising in his cell and is provided minimal access to exercise outside his cell. Further, despite having virtually nothing to do, he is forbidden to sleep during the day and often has his sleep at night disrupted.”
The letter continues: “As an organization of psychologists and other mental health professionals, sySR is aware that solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it. We therefore call or a revision in the conditions of PFC Manning’s incarceration while he awaits trial, based on the exhaustive documentation and research that have determined that solitary confinement is, at the very least, a form of cruel, unusual and inhumane treatment in violation of U.S. law.”
The group says the conditions of isolation to which PFC Manning, as well as many other U.S. prisoners are subjected, are sufficiently harsh as to have aroused international concern. In the most recent report of the UN Committee against Torture, the Committee equates Manning’s treatment with that meted out to prisoners in “supermaximum prisons.
The Committee said it is concerned about the “prolonged isolation periods detainees are subjected to, the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment.”
PsySR charges that in addition to the “needless brutality” of the conditions to which PFC Manning is being subjected, it is “concerned that the coercive nature of these conditions -- along with their serious psychological effects such as depression, paranoia, or hopelessness -- may undermine his ability to meaningfully cooperate with his defense, undermining his right to a fair trial.”
The group cited the views of Dr. Craig Haney, a psychologist and expert in the assessment of institutional environments. He said, “Empirical research on solitary and supermax-like confinement has consistently and unequivocally documented the harmful consequences of living in these kinds of environments . . .”
Dr. Haney concludes, “To summarize, there is not a single published study of solitary or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days where participants were unable to terminate their isolation at will that failed to result in negative psychological effects”
Trudy Bond, Ph.D., a member of the organization’s Steering Committee, and Stephen Soldz, Ph.D., President of the organization, signs the letter.
Other civil libertarians have also weighed in on the Manning issue. Last week, the legal logger Glenn Greenwald of Salon described Manning’s solitary confinement. Greenwald also said his treatment was equivalent to being in a Supermax prison. He described it as torture, and wrote:
“In sum, Manning has been subjected for many months without pause to inhumane, personality-erasing, soul-destroying, insanity-inducing conditions of isolation similar to those perfected at America’s Supermax prison in Florence, Colorado: all without so much as having been convicted of anything. And as is true of many prisoners subjected to warped treatment of this sort, the brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.”
Letter signatory Bond approached Manning’s situation from her vantage point as a professional psychologist. She told The Public Record, “People are social creatures. We need to interact with others to be truly alive. Solitary confinement is an extremely painful punishment that threatens a person’s mental stability. It is appalling to have Bradley Manning, a person not convicted of any crime, subjected to this harsh punishment,” she said, adding,
“Solitary confinement, rather than being a rational response to a risk, is more often used as a punishment for someone who is considered to be a member of a despised or 'dangerous' group. As with all torture and inhumane treatment, it is meant to intimidate both the victim and society at large."
Human rights advocates were virtually unanimous regarding what they see as the injustice of Manning’s confinement. Bill Quigley, Legal Director of the Center for Constitutional Rights (CCR), put it this way:
“The US treatment of Bradley Manning is clearly punitive and designed to deter others from leaking information about illegal actions of the US. It is also coercive in order to force him to identify other people who might be prosecuted. This is very similar to what the US has been doing in Guantanamo.”
He told The Public Record, “Under US and international human rights law people are supposed to be innocent until proven guilty. International law recognizes prolonged solitary confinement as akin to torture. The US treatment of Manning violates the spirit of law, human rights, human dignity, and fair play. It is unjust.”
A similar view was expressed by Chip Pitts, a lecturer in law at Stanford University law school and Oxford University and an Executive Board member of the Bill of Rights Defense Committee. Pitts told The Public Record:
“The unusual conditions imposed on PFC Manning should concern us all. In whatever light one views his actions – and many appropriately highlight the whistleblowing aspects and crimes he revealed – the harsh treatment reported is inconsistent with any reasonable system of justice and would clearly constitute inappropriate pre-trial punishment for offenses not yet adjudicated.”
He continued: “It is illegal and immoral, jeopardizing his ability to defend himself in the future. Have both our military and civilian systems been irrevocably tainted by the recourse to torture and cruel, inhuman, and degrading treatment in recent years? Or is this another instance of mindless ‘revenge’ of the establishment for deviations from orthodoxy? In any case, the conduct is unbecoming the military and our legal system and must stop at once.
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