By William Fisher
At his first primetime press conference, in February 2009, President Barack Obama was asked for his view on a proposal by Senator Patrick Leahy for a "truth and reconciliation" commission to investigate whether the predecessor Bush Administration had committed crimes in its handling of suspected terrorist detainees.
Obama ducked the heart of the question by saying he didn't know enough about the proposal to answer. But he then repeated a meme that he would subsequently deliver repeatedly in a variety of forms to a variety of audiences. It was to become almost as much a political cliché as “yes, we can” or “change we can believe in.”
He said: While “nobody is above the law," the President was more interested in looking ahead, not backward.
Nowhere was the seriousness of Obama’s intent more obvious than in his ongoing efforts to shield the Central Intelligence Agency, its operatives, and its activities, from public scrutiny or accountability.
This was, however, 180 degrees from the approach he took while on the campaign trail. As a candidate, Obama promised to end the use of torture, close Guantanamo Bay, and discontinue "extreme rendition.”
"From both a moral standpoint and a practical standpoint, torture is wrong,” he wrote in Foreign Affairs. He made the same point in numerous speeches on the Senate floor.
And indeed, on Jan. 22, 2009, the President created a task force to study and evaluate the transfer of prisoners to other nations for detention and/or interrogation.
Its eventual conclusion created considerable disappointment among Obama’s human rights constituency: The government would continue its policy of rendition – kidnapping people from one location and taking them to another where they would be imprisoned. But before anyone was “rendered,” the Task Force said, the US government would receive “diplomatic assurances” that prisoners would not be tortured or otherwise abused.
And on Jan. 22, 2009, President Obama signed a detailed executive order “operationalizing” the Task Force recommendations.
The order said that prisoners "shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment)." It also specifically nullified interpretations of federal law on interrogations "issued by the Department of Justice between September 11, 2001, and January 20, 2009."
These Bush-era DOJ documents were the so-called “torture memos" prepared by John Yoo and Jay Bybee, some of which Obama ultimately released to the public.
But legal experts and human rights advocates were quick to point out that “diplomatic assurances” was precisely the same mechanism used by the Bush Administration. The record shows that such assurances were usually less than worthless; countries with records of prison torture could not be trusted to change their ways.
And we will probably never know whether that outcome may actually have pleased any of the senior officials in the Bush Administration.
Rendition – which began during the administration of Bill Clinton -- was of particular concern to two of America’s allies, Germany and Spain. Public disclosure of their concerns threatened to expose both the incompetence and the immorality of some CIA operatives.
While rendition and torture were not the focal points of Obama’s presidential campaign, the subjects were prominent enough for the corporate media to have addressed the story with some frequency. And most observers believe that the public understood that rendition and torture were inseparable. And that their new president was opposed to both!
Given this background, it is perhaps understandable that the Obama Administration’s reaction to the anti-Bush actions of some of America’s allies took the US public by surprise. Defending the Bush Administration was nowhere to be found in the Obama campaign rhetoric.
Moreover, actions such as were and are being taken to protect Bush-era policies and personalities were sometimes rumored in the American press and in the blogosphere, but only widely confirmed by the diplomatic cables recently released by Wikileaks. So it is reasonable to assert that most of the US public simply did not know.
Germany and Spain turned out to be particularly complicated diplomatic problems for the Obama Administration. It sought to pressure the German government to “lose” the arrest warrants they had previously issued against 13 CIA officers who were allegedly involved in the abduction and subsequent torture of Lebanese-born German citizen Khaled El-Masri.
Earlier, the Bush Administration had faced – unsuccessfully – a similar situation in Italy. There, 23 CIA agents were convicted in absentia of abducting an Egyptian imam. Washington refused to extradite the agents, who are all free but would probably be arrested if they travel to Europe.
Later, as Scott Horton disclosed in Harper’s Magazine, the US attempted to obstruct investigations by the Spanish government into the murder of a Spanish journalist in Iraq by US forces, the use of Spanish airfields for the CIA's rendition program, and the torture of Spanish detainees at Guantánamo.
A major worry was a torture case brought by a Spanish non-governmental organization against six senior Bush administration officials, including the former attorney general, Alberto Gonzales.
The German situation has been impeccably reported by Matthias Gebauer and John Goetz of Der Spiegel Online.
They write that the American diplomatic cables released by Wikileaks “provide new details about the case of Khaled el-Masri, a German citizen abducted by the CIA in 2003. The reports confirm just how much pressure the US put on Germany to not pursue the agents believed to have been involved. But they also reveal how cooperative and responsive German officials were in light of American worries.”
The external details of the el-Masri case are well known by now.
Over the Christmas-New Year’s holiday in 2003, Khaled el-Masri, a greengrocer from a small town in South Germany, traveled by bus to Skopje, Macedonia. There he was detained by officials because his name was similar to that of Khalid al-Masri, a known Al Qaeda agent.
According to The Guardian newspaper in Britain, despite el-Masri’s protests that he was not al-Masri, he was beaten, stripped naked, shot full of drugs, given an enema and a diaper, and flown first to Baghdad and then to the notorious “salt pit,” the CIA’s secret interrogation facility in Afghanistan.
“At the salt pit, he was repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him.
“Throughout this time, El-Masri insisted that he had been falsely imprisoned, and the CIA slowly established that he was who he claimed to be. Over many further weeks of bickering over what to do, a number of CIA figures apparently argued that, though innocent, the best course was to continue to hold him incommunicado because he ‘knew too much’.”
Then Secretary of State Condoleeza Rice sharply disagreed and ordered el-Masri’s immediate release – which did take place, albeit not until Secretary Rice learned of a delay and issued her order again.
Harper’s Scott Horton opined that Dana Priest of the Washington Post furnished the core of this account in an excellent 2005 story. Other aspects have been slowly confirmed by German criminal investigators. By studying el-Masri’s hair and skin samples, for instance, they were able to confirm allegations that he was drugged and subjected to a bizarre starvation regimen, he writes.
Throughout this process, el-Masri’s account of what transpired, part of which he wrote as an op-ed in the Los Angeles Times, has consistently been vindicated. However, his efforts to find a court that will let him sue the CIA have uniformly failed – stymied by the use of the “state secrets” privilege by both the Bush and Obama Administrations.
Little used under previous presidents, the “state secrets privilege” rose to prominence during the George W. Bush Administration, which used it many times. Originally intended as an evidentiary tool – to claim that public introduction of a particular piece of evidence could jeopardize national security. But the Bush administration invoked it to have entire lawsuits thrown out of court. El-Masri’s was one. And there have been many others.
When barrack Obama came to office, it was expected he would take steps to reform this much-abused statute. And indeed he said he would do so on a number of occasions. But that never happened. Instead, Obama has closely channeled the Bush Administration’s use of the privilege.
That caused Steven Watt, senior staff attorney with the ACLU Human Rights Program, to tell this reporter at the time, “Our government kidnapped an innocent man; tortured him and then, adding insult to injury, denied him his day in court through bogus claims of harm to national security.”
He added, “To date, the United States hasn't so much as acknowledged its involvement in el-Masri's extraordinary rendition."
And Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, reminded me that "There are innocent individuals who have been swept up in US government counterterrorism operations, wrongly detained, 'rendered' surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged."
"In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government's invocation of the state secrets privilege," he
added.
"As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole," he said.
But the Wikileaks documents reveal that in 2007 American officials, including the US ambassador, warned Germany in the strongest terms not to enforce arrest warrants for the CIA officers involved in the el-Masri case.
In one of the cables, the ambassador, William R. Timken Jr., reports on a meeting to caution German officials against trying to enforce the arrest warrants. In another, a senior American diplomat tells a German official “that our intention was not to threaten Germany, but rather to urge that the German government weigh carefully at every step of the way the implications for relations with the US” Observers characterize that as the thinnest of veiled threats.
German officials, according to the Wikileaks document, conceded that they understood the possible diplomatic consequences but also warned that, given the outcry from the German media, their options were limited.
Despite the warnings, the German government did issue Interpol arrest warrants for CIA officials involved in the kidnapping. However, they dropped the charges a few months later.
The Wiki cable shows a discussion between the US Deputy Chief of Mission – one step below the Ambassador -- with German Deputy National Security Adviser Rolf Nikel. The cable says: “The DCM reiterated our strong concerns about the possible issuance of international arrest warrants in the al-Masri case.”
The DCM noted that the reports in the German media of the discussion of the issue between the Secretary and [Foreign Minister] Steinmeier in Washington were inaccurate: the media reports suggest the [US Government] “was not troubled by developments in the al-Masri case.”
The cable went on to say: “The DCM emphasized that this was not the case and that issuance of international arrest warrants would have a negative impact on our bilateral relationship.
Politically speaking, Nikel reportedly said, “Germany would have to examine the implications for relations with the US At the same time, he noted our political differences about how the global war on terrorism should be waged, for example on the appropriateness of the Guantanamo facility and the alleged use of renditions.”
Nikel also cited intense pressure from the Bundestag and the German media. The German federal Government must consider the "entire political context," he said. He assured the DCM that the [Chancellor’s office] is well aware of the bilateral political implications of the case, but added that this case "will not be easy."
In the end, most press accounts note that the indictments of the CIA officers appear to be dormant. And they depict German Prime Minister Angela Merkel as having "caved" to the US
The US dilemma with Spain appeared almost as complicated as the El-Masri affair. The issue with Spain, though far less widely reported in the US press, was front and center for a considerable time among Spanish readers. It spotlighted leaked cables revealing pressure from the US for Spain to drop the case of a Spanish cameraman killed in a 2003 attack on journalists in Baghdad.
The case was brought by the family of José Couso, a young cameraman with the Spanish TV network Telecinco. He was filming from the balcony of the Palestine Hotel in Baghdad, April 8th, 2003, when a US Army tank fired on the hotel, packed with journalists, killing Couso and a Reuters cameraman.
Following Couso’s death, there were protests at American diplomatic posts in Spain and several civil and judicial actions in order to determine the liability of the people involved. As of today, people still gather on the 8th of each month in front of the U.S. Embassy in Madrid demanding justice.
In 2005, Spanish authorities opened a preliminary investigation with an international arrest warrant against three of the involved US military personnel. The investigation was closed in March 2006, with a finding that the event was an act of war. That decision was appealed by the Couso’s family to the Spanish equivalent of the Supreme Court, which unanimously granted the appeal by Couso's family.
The international arrest warrant against the three military personnel was reactivated, accusing the soldiers of murder and of a crime against the international community. They were subsequently indicted, and in July 2010, Judge Santiago Pedraz launched a search and arrest warrant against the three U.S. soldiers. However, senior ministers in Spain's socialist government intervened to stop the investigation
"I am outraged," said Javier Couso, the brother of José Couso. "I can’t believe my government conspired with a foreign government… It seems we are citizens, or at least a small province, of the empire of the United States."
The leaked US Embassy cables from Madrid received - and continue to receive - huge media attention in Spain and across much of Europe.
A cable dated May 14, 2007, from the US Ambassador to Spain, Eduardo Aguirre, says, "For our side, it will be important to continue to raise the Couso case, in which three US servicemen face charges related to the 2003 death of Spanish cameraman José Couso during the battle for Baghdad."
But there were also other, equally serious, issues with Spain: The proposed indictment of former president George W. Bush’s legal braintrust for applying interrogation policies and techniques that resulted in torturing war-on-terror detainees. And the revelation
that the CIA flight that took el-Masri to Afghanistan had originated in Spain.
To de-escalate that situation, the US turned to then-Senator Mel Martinez, a Florida Republican and former chairman of the Republican National Committee. He was asked to deliver a delicate message to Spain: Don't indict.
Martinez delivered that stern warning during a visit to Spain. He told the Spaniards that trying to prosecute US officials "would chill US-Spanish relations."
Martinez did not receive satisfaction from senior Spanish officials. Instead, they lectured Martinez on Spain's separation of powers, and how the executive branch of government could not close any judicial investigation. But the Spanish were eager that this case not affect its overall relationship with the US
The case file is now in the jurisdiction of a Spanish magistrate. He has taken no further action on the indictments while he awaits an answer to the question he asked the Obama administration - whether it intends to open an investigation of its own.
US officials tried to influence Spanish prosecutors and government officials to head off court investigations into Guantánamo Bay torture allegations and secret CIA "extraordinary rendition" flights involving Spanish airspace, according to the US diplomatic cables released by Wikileaks
Among their biggest worries were investigations originated by the magistrate Baltasar Garzón, the storied jurist who had the Europe-wide arrest warrant issued for former Chilean strongman Augusto Pinochet.
Michael Ratner, president of the Center for Constitutional Rights (CCR) - which has played a major role in mobilizing lawyers to defend Guantanamo detainees, told this reporter, "The importance of this investigation cannot be understated. Contrary to statements by some, the Spanish investigations are not 'symbolic.' Just ask Augusto Pinochet, who was stranded under house arrest in England and who ultimately faced criminal charges in Chile because of the pressure of the Spanish courts."
But the diplomatic cables reveal that Garzon was seen by US officials as having "an anti-American streak." However, many observers doubt this assertion. Garzon has been a frequent visitor to the US, and has lectured before bar associations and at major law schools.
"We are certainly under no illusions about the individual with whom we are dealing," US officials said after Garzon opened an investigation into torture at Guantánamo Bay prison camp.
"Judge Garzon has been a storied and controversial figure in recent Spanish history, whose ambition and pursuit of the spotlight may be without rival," the US diplomatic cable said.
Garzón was deemed to put self-promotion first. "We suspect Garzón will wring all the publicity he can from the case unless and until he is forced to give it up," said the officials.
"It is hard for us to see why the publicity-loving Garzón would shut off his headline-generating machine unless forced to do so," they reported.
"We also fear Garzón - far from being deterred by threats of disciplinary action - may welcome the chance for martyrdom, knowing the case will attract worldwide attention."
When another Spanish magistrate began investigating the alleged use of a Spanish airport for secret CIA flights carrying terror suspects, officials noted that US policy was to deal with these cases in closed-door conversations with governments.
They were especially alarmed when magistrates and prosecutors in both Spain and Germany began comparing notes. "This coordination among independent investigators will complicate our efforts to manage this case at a discreet government-to-government level," they warned.
US officials noted, however, that their own government had not explicitly denied the allegations. "Our ability to beat down this story is constrained by the fact that we do not ourselves know, factually, what might have transpired five or six years ago as the battles in Afghanistan and Iraq began yielding large numbers of potentially dangerous terrorist detainees and unlawful combatants," they observed.
"Baring (sic) a categorical statement from the US government that no detainees passed through Spain - and we understand that might be undesirable from a policy standpoint even if factually correct - nothing but time is going to make this go away," they said.
"Top (Spanish) ministers moved quickly to let us know that the government is working to resolve this situation," the officials reported, naming the deputy prime minister, the foreign minister and the justice minister.
"The [Spanish] government must act carefully as it tries to influence Spain's fiercely independent judiciary," they noted. "In order to avoid aggravating the situation, Spanish government leaders must publicly show their respect for the independent workings of the courts."
It is worth noting that while America’s problems with both Spain and Germany began during the George W. Bush presidency, efforts to "disappear" them have been continued by the Obama Administration.
Presumably under the mantra of looking forward, not backward, the White House and the State Department believe they have an obligation to do whatever they can diplomatically to protect US personnel, US interests, and US reputation.
This is considered essential, albeit most observers contend that it does not come anywhere near meeting the transparency and accountability pledges made by the President during the campaign and beyond.
Some observers suggest it may also be useful to consider the extent to which the diplomatic efforts of the Obama Administration have been motivated by the desire to continue the tradition of "the imperial presidency" - the effort to maintain a strong executive branch, typified by George W. Bush.
In the view of one commentator, who prefers to remain anonymous, “If successful, the efforts of the Obama Administration would ‘diplomatically protect’ the US to deny all wrong-doing - and even keep the diplomats who are supposed to be conducting these delicate negotiations in the dark about what ACTUALLY happened.”
This observer added, “It's not just the abrogation of the promise of transparency, it's the apparent obliviousness to what transparency is meant to achieve: democratic decision-making, a healing in the vast horrible wound that's been opened between our human rights ideals and actual practices.”
But even if Obama’s diplomats are successful in suppressing anything that might embarrass the CIA, the military, or any other agency of government, its troubles would appear to be far from over.
Last week, in Madrid, the US-based Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR) asked a Spanish Judge to subpoena the former commanding officer at Guantánamo Bay to explain his role in the torture of four former detainees.
CCR and ECCHR filed a 12-page dossier detailing the key role of Major General Geoffrey Miller, who ran the island prison camp from November 2002 until April 2004, in the torture and other serious abuse of detainees held there.
In the dossier, the rights groups detail acts of torture and other war crimes committed against detainees, including the torture of CCR client Mohammed al Qahtani. Much of the documentation discussed in the dossier is drawn from US government reports.
Based on his record in Guantánamo, Miller was sent to Iraq in 2003 to share interrogation techniques from Guantánamo with US counterparts in Iraq: Miller is said to have wanted to "Gitmo-ize" Iraq and Abu Ghraib, including by having guards "soften up" prisoners. Shortly after Miller’s visit some of the most serious and notorious acts of torture at Abu Ghraib occurred.
"There is ample evidence - primarily from US government sources - that Geoffrey Miller played a central role in the torture of detainees at Guantánamo, and later in Iraq," said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights. "It is time that he be called before a court of law to explain his role in the torture of detainees."
The above article originally appeared ib Truthout.org
Friday, January 28, 2011
Diplomacy: Fig Leaf for Inaction?
By William Fisher
During his presidential campaign, then-Senator Obama emphasized negotiations rather than military action. The Republicans ridiculed his focus on diplomacy as naïve, "Strong countries and strong presidents meet and talk with our adversaries," Obama said during an August 19 debate. "We shouldn't be afraid to do so. We've tried the other way. It didn't work."
Candidate Obama argued that the United States had to put diplomacy at the forefront of American foreign policy. But today a leading civil rights organization is charging that one aspect of diplomacy –the language of ‘dialogue’ and ‘cooperation’ – is little understood, rarely reported on, and is being used by governments throughout the world as a fig leaf to conceal their tacit acceptance of egregious human rights abuses.
"The ritualistic support of ‘dialogue' and ‘cooperation' with repressive governments is too often an excuse for doing nothing about human rights," says Kenneth Roth, executive director of Human Rights Watch.
His remarks come as the organization released its “World Report 2011,” a 649-page summary of human rights issues and practices in more than 90 countries and territories worldwide.
“Too many governments are accepting the rationalizations and subterfuges of repressive governments, replacing pressure to respect human rights with softer approaches such as private ‘dialogue’ and cooperation’.... Instead of standing up firmly against abusive leaders,” many governments “adopt policies that do not generate pressure for change.”
The report was particularly critical of the United Nations, the European Union and the United States of America.
The famed eloquence of US President Barack Obama “has sometimes eluded him when it comes to defending human rights,” the report says. It cites as examples bilateral contexts with China, India, and Indonesia.
Criticism in the report is not limited to foreign policy. For example, it says that the United States “sets a dubious world record with 2,574 minors serving life sentences at the time the report was written.”
It says Obama has failed to insist that the various agencies of the US government, such as the Defense Department and various embassies, convey strong human rights messages consistently -- a problem, for example, in Egypt, Indonesia, and Bahrain.
The report notes that Obama “increased his focus on human rights in his second year in office, but his eloquent statements have not always been followed by concrete actions. Nor has he insisted that the various US government agencies convey strong human rights messages consistently, with the result that the Defense Department and various US embassies - in Egypt, Indonesia, and Bahrain, for example - often deliver divergent messages.”
The report charges that the Obama administration in its first year ”simply ignored the human rights conditions on the transfer of military aid to Mexico, under the Merida Initiative, even though Mexico had done nothing as required toward prosecuting abusive military officials in civilian courts.”
In its second year, the report says, although the administration “did withhold a small fraction of funding, it once again certified - despite clear evidence to the contrary -that Mexico was meeting Merida’s human rights requirements.”
“The US also signed a funding compact with Jordan under the Millennium Challenge Corporation even though Jordan had failed to improve its failing grades on the MCC’s benchmarks for political rights and civil liberties,” according to HRW.
A similar dynamic is at play in China, where Western governments seek economic opportunity as well as cooperation on a range of global and regional issues. For example, in its first year in office, the Obama administration seemed determined to downplay any issue, such as human rights, that might raise tensions in the US-China relationship.
President Obama deferred meeting with the Dalai Lama until after his trip to China and refused to meet with Chinese civil society groups during the trip, and Secretary of State Hillary Clinton announced that human rights “can’t interfere” with other US interests in China.
The report declares that Obama’s efforts to ingratiate himself with Chinese President Hu Jintao “gained nothing discernible while it reinforced China’s view of the US as a declining power.”
That weakness, the report says, “only heightened tension when, in Obama’s second year in office, he and Secretary Clinton rediscovered their human rights voice on the case of Liu Xiaobo, although it remains to be seen whether they will be outspoken on rights during the January 2011 US-China summit.”
The report, which was published before the Washington visit of China’s president, concludes, “The Chinese government is naturally reluctant to promote human rights because it maintains such a repressive climate at home and does not want to bolster any international system for the protection of human rights that might come back to haunt it. But even China should not see turning its back on mass atrocities - a practice that, one would hope, China has moved beyond - as advancing its self-interest.”
US policy toward Egypt shows that pressure can work, the report says.
“In recent years, the US government has maintained a quiet dialogue with Egypt. Beginning in 2010, however, the White House and State Department repeatedly condemned abuses, urged repeal of Egypt’s emergency law, and called for free elections.
“These public calls helped to secure the release of several hundred political detainees held under the emergency law,” the report says.
Egypt also responded with anger–for example, waging a lobbying campaign to stop a US Senate resolution condemning its human rights record. “The reaction was designed to scare US diplomats into resuming a quieter approach, but in fact it showed that Egypt is profoundly affected by public pressure from Washington,” the report charges.
It says that, with respect to Saudi Arabia, the US government in 2005 established a “strategic dialogue” which, because of Saudi objections, “did not mention human rights as a formal subject but relegated the topic to the ‘Partnership, Education, Exchange, and Human Development Working Group’.” But it notes that “even that dialogue then gradually disappeared."
It further notes, “While the US government contributed to keeping Iran off the board of the new UN Women agency in 2010 because of its mistreatment of women, it made no such effort with Saudi Arabia, which has an abysmal record on women but was given a seat by virtue of its financial contribution.”
Western governments also have been reluctant to exert pressure for human rights on governments that they count as counterterrorism allies, the report declares.
For example, it says, the Obama administration and the Friends of Yemen, a group of states and intergovernmental organizations established in January 2010, have not conditioned military or development assistance to Yemen on human rights improvements, “despite a worsening record of abusive conduct by Yemeni security forces and continuing government crackdowns on independent journalists and largely peaceful southern separatists.”
According to HRW, “One common rationalization offered for engagement without pressure is that rubbing shoulders with outsiders will somehow help to convert abusive agents of repressive governments.”
It says the Pentagon makes that argument in the case of Uzbekistan and Sri Lanka, and the US government adopted that line to justify resuming military aid to Indonesia’s elite special forces (Kopassus),”a unit with a long history of severe abuse, including massacres in East Timor and ‘disappearances’ of student leaders in Jakarta.
With respect to Kopassus, HRW says that while the Indonesian government’s human rights record has improved dramatically in recent years, “a serious gap remains its failure to hold senior military officers accountable for human rights violations, even in the most high-profile cases.”
In 2010, the report says, “The US relinquished the strongest lever it had by agreeing to lift a decade-old ban on direct military ties with Kopassus. The Indonesian military made some rhetorical concessions -- promising to discharge convicted offenders and to take action against future offenders -- but the US did not condition resumption of aid on such changes.”
As a result, the report says, “Convicted offenders today remain in the military, and there is little reason to credit the military’s future pledge given its poor record to date.”
Trivializing the significance of pressure, US Defense Secretary Robert Gates justified resuming direct ties with Kopassus:
He said, “Working with them further produce(s) greater gains in human rights for people than simply standing back and shouting at people.” Yet HRW notes that “even as the US was finalizing terms with Indonesia on resumption of aid to Kopassus, an Indonesian general implicated in abductions of student leaders was promoted to deputy defense minister and a colonel implicated in other serious abuses was named deputy commander of Kopassus.”
A similarly misplaced faith in rubbing shoulders with abusive forces rather than applying pressure on them informed President Obama’s decision to continue military aid to a series of governments that use child soldiers -- Chad, Sudan, Yemen, and the Democratic Republic of Congo -- despite a new US law prohibiting such aid.
In the case of Congo, for example, the military has had children in its ranks since at least 2002, and a 2010 UN report found a “dramatic increase” in the number of such children in the prior years. “Instead of using a cutoff of military assistance to pressure these governments to stop using child soldiers, the Obama administration waived the law to give the US time to ‘work with’ the offending militaries,” HRW says.
Another favorite rationale for a quiet approach, heard often in dealings with China, is that economic liberalization will lead on its own to greater political freedoms–a position maintained even after three decades in which that has not happened.
Indeed, in 2010 the opposite occurred -- in its regulation of the internet, China began using its economic clout to try to strengthen restrictions on speech, pressing businesses to become censors on its behalf. In the end, it was a business – Google -- that fought back, in part because censorship threatened its business model.
GoDaddy.com, the world’s largest web registrar, also announced that it would no longer register domains in China because onerous government requirements forcing disclosure of customer identities made censorship easier.
Despite these efforts, China still leveraged access to its lucrative market to gain the upper hand because others in the Internet industry, such as Microsoft, did not follow Google’s lead.
Conversely, the one time that China backed off was when it faced concerted pressure - it apparently abandoned its “Green Dam” censoring software when the industry, civil society, governments, and China’s own Internet users all loudly protested. And even Google’s license to operate a search engine in China was renewed, casting further doubt on the idea that a public critique of China’s human rights practices would inevitably hurt business.
Ironically, some of the governments most opposed to using pressure to promote human rights have no qualms about using pressure to deflect human rights criticism.
China, for example, pulled out all stops in an ultimately unsuccessful effort to suppress a report to the UN Security Council on the discovery of Chinese weaponry in Darfur despite an arms embargo. Sri Lanka did the same in an unsuccessful effort to quash a UN advisory panel on accountability for war crimes committed during its armed conflict with the Tamil Tigers.
China also mounted a major lobbying effort to prevent the awarding of the Nobel Peace Prize to imprisoned Chinese writer and human rights activist Liu Xiaobo, and when that failed, it tried unsuccessfully to discourage governments from attending the award ceremony in Norway. China made a similar effort to block a proposed UN commission of inquiry into war crimes committed in Burma.
But HRW saves its harshest criticism for the United Nations and the European Union. The report excoriates "the failure of the expected champions of human rights to respond" to human rights violations around the world.
HRW says the use of “dialogue and cooperation in lieu of pressure has emerged with a vengeance at the United Nations, from Secretary-General Ban Ki-moon to many members of the Human Rights Council.”
In addition, the report says, leading democracies of the global South, such as South Africa, India, and Brazil, have promoted quiet demarches as a preferred response to repression.
Recent illustrations include the Association of Southeast Asian Nations' (ASEAN) tepid response to Burmese repression, the United Nations' deferential attitude toward Sri Lankan wartime atrocities, and India's pliant policy toward Burma and Sri Lanka, the report said.
“The UN Human Rights Council has been especially timid, with many countries refusing to vote for resolutions aimed at a particular country. In an extreme example, rather than condemn Sri Lanka for the brutal abuses against civilians in the final months of the conflict with the Tamil Tigers, the council congratulated Sri Lanka,” Human Rights Watch said.
Although the EU's partnership and cooperation agreements with other countries are routinely conditioned on basic respect for human rights, it has concluded a significant trade agreement and pursued a full-fledged partnership and cooperation agreement with Turkmenistan, a severely repressive government, without conditioning either on human rights improvements or engaging in any serious efforts to secure improvements in advance, the report said.
And the EU opened accession discussions with Serbia despite its failure to apprehend and surrender for trial Ratko Mladic, the Bosnian Serb wartime military leader and an internationally indicted war crimes suspect, a key benchmark for beginning the discussions. The EU also lifted sanctions imposed on Uzbekistan after security forces massacred hundreds in 2005 in the city of Andijan, even though the Uzbek government took no steps to fill any of the EU criteria required for lifting the sanctions.
"Dialogue and cooperation have their place, but the burden should be on the abusive government to show a genuine willingness to improve," Roth said. "In the absence of the demonstrated political will by abusive governments to make change, governments of good will need to apply pressure to end repression."
The report said that if members of the Council want dialogue and cooperation to be effective in upholding human rights, they should limit use of these tools to governments that have demonstrated a political will to improve. “But whether out of calculation or cowardice, many Council members promote dialogue and cooperation as a universal prescription without regard to whether a government has the political will to curtail its abusive behavior,” HRW said.
These countries thus resist tests for determining whether a government’s asserted interest in cooperation is a ploy to avoid pressure or a genuine commitment to improvement–tests that might look to the government’s willingness to acknowledge its human rights failings, welcome UN investigators to examine the nature of the problem, prescribe solutions, and embark upon reforms.
“The enemies of human rights enforcement oppose critical resolutions even on governments that clearly fail these tests, such as Burma, Iran, North Korea, Sri Lanka, and Sudan,” the report said.
Similar problems arise at the UN General Assembly, the report says. As the Burmese military reinforced its decades-long rule with sham elections designed to give it a civilian facade, a campaign got under way to intensify pressure by launching an international commission of inquiry to examine the many war crimes committed in the country’s long-running armed conflict.”
A commission of inquiry, the report says, “would be an excellent tool for showing that such atrocities could no longer be committed with impunity. It would also create an incentive for newer members of the military-dominated government to avoid the worst abuses of the past.”
Yet some member states have refused to endorse a commission of inquiry on the “spurious grounds that it would not work without the cooperation of the Burmese junta.”
EU High Representative Ashton, in failing to embrace this tool, said: “Ideally, we should aim at ensuring a measure of cooperation from the national authorities.”
Similarly, a German Foreign Ministry spokeswoman said that, to help advance human rights in the country, it is “crucial to find some co-operation mechanism with the [Burmese] national authorities.”
Yet obtaining such cooperation from the Burmese military in the absence of further pressure is a pipe dream, the report says.
Another favorite form of cooperation is a formal intergovernmental dialogue on human rights, such as those that many governments conduct with China and the EU maintains with a range of repressive countries, including the former-Soviet republics of Central Asia.
“Authoritarian governments understandably welcome these dialogues because they remove the spotlight from human rights discussions,” HRW says.
With such dialogues, the public, including domestic activists, is “left in the dark, as are most government officials outside the foreign ministry.”
But Western governments also often cite the existence of such dialogues as justification for not speaking concretely about human rights violations and remedies in more meaningful settings -- as Sweden did, for example, during its EU presidency when asked why human rights had not featured more prominently at the EU-Central Asia ministerial conference.
The UN and EU are accused of "cowardice" for claiming to tackle human rights abuses in places like China or Uzbekistan through quiet dialogue and cooperation, the report said.
Highlighting its claim, the report was issued in Brussels the same day the European Union hosted controversial Uzbek President Islam Karimov despite protests from campaigners.
The New York-based non-governmental organization's executive director, Kenneth Roth, was sharply critical of "the failure of the expected champions of human rights to respond" to violations in an introduction to the 600-page report covering 100-plus regimes.
He sees the fundamental error made by United Nations Secretary-General Ban Ki-moon and other leading voices is to place the accent on quiet diplomacy, which he says is often a euphemism for "other interests at stake."
Roth cites a "tepid" response from Asian partners to repression in Myanmar, with the report saying the Burmese junta's release of democracy icon Aung San Suu Kyi on November 23 was preceded by no significant steps on 2,100 other political prisoners.
The UN is criticized for adopting a "deferential" attitude towards Sri Lankan President Mahinda Rajapaksa, alongside Myanmar's Than Shwe or Sudan leader Omar al-Bashir, with Ban said to have placed "undue faith" in the impact of his corridor diplomacy.
The EU's top diplomat, the much-criticized English baroness Catherine Ashton, is said to hide behind an "obsequious approach to Uzbekistan and Turkmenistan" where large energy interests dominate trade and political links.
Ashton's "quiet dialogue and cooperation often look like acquiescence" leading rights defenders to "sense indifference rather than solidarity," Roth wrote in a column for the International Herald Tribune in advance of the Report’s release.
Britain, France and Germany are all cited as appeasing Beijing.
The obsession with dialogue and cooperation is particularly intense at the UN Human Rights Council in Geneva, where many of the members insist that the Council should practice “cooperation, not condemnation.”
The report says, “A key form of pressure at the Council is the ability to send fact-finders to expose what abuses were committed and to hold governments accountable for not curtailing abuses. One important medium for these tools is a resolution aimed at a particular country or situation. Yet many governments on the Council eschew any country resolution designed to generate pressure (except in the case of the Council’s perennial pariah, Israel).”
"Near-universal cowardice," meanwhile, marks efforts at confronting China's "deepening crackdown on basic liberties," with huge Yuan investments -- whether in African natural resources or US and eurozone public debt -- ensuring silence is the preferred approach.
“The credibility of the EU as a force for human rights around the world also rests on its willingness to address human rights abuses by its own member states. With a record of discrimination and rising intolerance against migrants, Muslims, Roma, and others, inadequate access to asylum, and abusive counterterrorism measures, member states and EU institutions need to show greater political commitment to ensure that respect for human rights at home matches the EU's rhetoric abroad," the report charges.
The report cites recent examples of failure to exert pressure. These include the EU's “obsequious approach” toward Uzbekistan and Turkmenistan, the West's “soft reaction” to certain favored African autocrats such as Paul Kagame of Rwanda and Meles Zenawi of Ethiopia, and the “near-universal cowardice in confronting China's deepening crackdown on basic liberties.”
It adds that the most effective support for human rights in China in 2010 came from the Norwegian Nobel committee's awarding of the Nobel Peace Prize to imprisoned Chinese dissident Liu Xiaobo.
Prior to the recent visit of President Hu of China, there was concerted pressure from Obama’s left wing urging him to launch a full frontal attack on China’s human rights record.
To most of those on the left of the Democratic Party, Obama’s attack was far from “full frontal.” On the other hand, it was obvious that the American president intended to call attention to China’s pitiful human rights record and to keep the subject front and center while negotiations on other important issues were proceeding. The issue was now “on a table,” and was not going to be swept under the rug.
As a New York Times editorial noted, prior to Hu’s arrival, Obama “invited human rights advocates to the White House for a meeting on China.” Obama raised the issue from the very beginning of the State visit. It is reported that he also had a “very serious” discussion of human rights with Hu during a private dinner in the White House.
Many observers believe the president didn’t go far enough, but that he went as far as he could. But far fewer seem to believe Obama’s candor will have any impact on China’s domestic policies, at least not in the short term.
During his presidential campaign, then-Senator Obama emphasized negotiations rather than military action. The Republicans ridiculed his focus on diplomacy as naïve, "Strong countries and strong presidents meet and talk with our adversaries," Obama said during an August 19 debate. "We shouldn't be afraid to do so. We've tried the other way. It didn't work."
Candidate Obama argued that the United States had to put diplomacy at the forefront of American foreign policy. But today a leading civil rights organization is charging that one aspect of diplomacy –the language of ‘dialogue’ and ‘cooperation’ – is little understood, rarely reported on, and is being used by governments throughout the world as a fig leaf to conceal their tacit acceptance of egregious human rights abuses.
"The ritualistic support of ‘dialogue' and ‘cooperation' with repressive governments is too often an excuse for doing nothing about human rights," says Kenneth Roth, executive director of Human Rights Watch.
His remarks come as the organization released its “World Report 2011,” a 649-page summary of human rights issues and practices in more than 90 countries and territories worldwide.
“Too many governments are accepting the rationalizations and subterfuges of repressive governments, replacing pressure to respect human rights with softer approaches such as private ‘dialogue’ and cooperation’.... Instead of standing up firmly against abusive leaders,” many governments “adopt policies that do not generate pressure for change.”
The report was particularly critical of the United Nations, the European Union and the United States of America.
The famed eloquence of US President Barack Obama “has sometimes eluded him when it comes to defending human rights,” the report says. It cites as examples bilateral contexts with China, India, and Indonesia.
Criticism in the report is not limited to foreign policy. For example, it says that the United States “sets a dubious world record with 2,574 minors serving life sentences at the time the report was written.”
It says Obama has failed to insist that the various agencies of the US government, such as the Defense Department and various embassies, convey strong human rights messages consistently -- a problem, for example, in Egypt, Indonesia, and Bahrain.
The report notes that Obama “increased his focus on human rights in his second year in office, but his eloquent statements have not always been followed by concrete actions. Nor has he insisted that the various US government agencies convey strong human rights messages consistently, with the result that the Defense Department and various US embassies - in Egypt, Indonesia, and Bahrain, for example - often deliver divergent messages.”
The report charges that the Obama administration in its first year ”simply ignored the human rights conditions on the transfer of military aid to Mexico, under the Merida Initiative, even though Mexico had done nothing as required toward prosecuting abusive military officials in civilian courts.”
In its second year, the report says, although the administration “did withhold a small fraction of funding, it once again certified - despite clear evidence to the contrary -that Mexico was meeting Merida’s human rights requirements.”
“The US also signed a funding compact with Jordan under the Millennium Challenge Corporation even though Jordan had failed to improve its failing grades on the MCC’s benchmarks for political rights and civil liberties,” according to HRW.
A similar dynamic is at play in China, where Western governments seek economic opportunity as well as cooperation on a range of global and regional issues. For example, in its first year in office, the Obama administration seemed determined to downplay any issue, such as human rights, that might raise tensions in the US-China relationship.
President Obama deferred meeting with the Dalai Lama until after his trip to China and refused to meet with Chinese civil society groups during the trip, and Secretary of State Hillary Clinton announced that human rights “can’t interfere” with other US interests in China.
The report declares that Obama’s efforts to ingratiate himself with Chinese President Hu Jintao “gained nothing discernible while it reinforced China’s view of the US as a declining power.”
That weakness, the report says, “only heightened tension when, in Obama’s second year in office, he and Secretary Clinton rediscovered their human rights voice on the case of Liu Xiaobo, although it remains to be seen whether they will be outspoken on rights during the January 2011 US-China summit.”
The report, which was published before the Washington visit of China’s president, concludes, “The Chinese government is naturally reluctant to promote human rights because it maintains such a repressive climate at home and does not want to bolster any international system for the protection of human rights that might come back to haunt it. But even China should not see turning its back on mass atrocities - a practice that, one would hope, China has moved beyond - as advancing its self-interest.”
US policy toward Egypt shows that pressure can work, the report says.
“In recent years, the US government has maintained a quiet dialogue with Egypt. Beginning in 2010, however, the White House and State Department repeatedly condemned abuses, urged repeal of Egypt’s emergency law, and called for free elections.
“These public calls helped to secure the release of several hundred political detainees held under the emergency law,” the report says.
Egypt also responded with anger–for example, waging a lobbying campaign to stop a US Senate resolution condemning its human rights record. “The reaction was designed to scare US diplomats into resuming a quieter approach, but in fact it showed that Egypt is profoundly affected by public pressure from Washington,” the report charges.
It says that, with respect to Saudi Arabia, the US government in 2005 established a “strategic dialogue” which, because of Saudi objections, “did not mention human rights as a formal subject but relegated the topic to the ‘Partnership, Education, Exchange, and Human Development Working Group’.” But it notes that “even that dialogue then gradually disappeared."
It further notes, “While the US government contributed to keeping Iran off the board of the new UN Women agency in 2010 because of its mistreatment of women, it made no such effort with Saudi Arabia, which has an abysmal record on women but was given a seat by virtue of its financial contribution.”
Western governments also have been reluctant to exert pressure for human rights on governments that they count as counterterrorism allies, the report declares.
For example, it says, the Obama administration and the Friends of Yemen, a group of states and intergovernmental organizations established in January 2010, have not conditioned military or development assistance to Yemen on human rights improvements, “despite a worsening record of abusive conduct by Yemeni security forces and continuing government crackdowns on independent journalists and largely peaceful southern separatists.”
According to HRW, “One common rationalization offered for engagement without pressure is that rubbing shoulders with outsiders will somehow help to convert abusive agents of repressive governments.”
It says the Pentagon makes that argument in the case of Uzbekistan and Sri Lanka, and the US government adopted that line to justify resuming military aid to Indonesia’s elite special forces (Kopassus),”a unit with a long history of severe abuse, including massacres in East Timor and ‘disappearances’ of student leaders in Jakarta.
With respect to Kopassus, HRW says that while the Indonesian government’s human rights record has improved dramatically in recent years, “a serious gap remains its failure to hold senior military officers accountable for human rights violations, even in the most high-profile cases.”
In 2010, the report says, “The US relinquished the strongest lever it had by agreeing to lift a decade-old ban on direct military ties with Kopassus. The Indonesian military made some rhetorical concessions -- promising to discharge convicted offenders and to take action against future offenders -- but the US did not condition resumption of aid on such changes.”
As a result, the report says, “Convicted offenders today remain in the military, and there is little reason to credit the military’s future pledge given its poor record to date.”
Trivializing the significance of pressure, US Defense Secretary Robert Gates justified resuming direct ties with Kopassus:
He said, “Working with them further produce(s) greater gains in human rights for people than simply standing back and shouting at people.” Yet HRW notes that “even as the US was finalizing terms with Indonesia on resumption of aid to Kopassus, an Indonesian general implicated in abductions of student leaders was promoted to deputy defense minister and a colonel implicated in other serious abuses was named deputy commander of Kopassus.”
A similarly misplaced faith in rubbing shoulders with abusive forces rather than applying pressure on them informed President Obama’s decision to continue military aid to a series of governments that use child soldiers -- Chad, Sudan, Yemen, and the Democratic Republic of Congo -- despite a new US law prohibiting such aid.
In the case of Congo, for example, the military has had children in its ranks since at least 2002, and a 2010 UN report found a “dramatic increase” in the number of such children in the prior years. “Instead of using a cutoff of military assistance to pressure these governments to stop using child soldiers, the Obama administration waived the law to give the US time to ‘work with’ the offending militaries,” HRW says.
Another favorite rationale for a quiet approach, heard often in dealings with China, is that economic liberalization will lead on its own to greater political freedoms–a position maintained even after three decades in which that has not happened.
Indeed, in 2010 the opposite occurred -- in its regulation of the internet, China began using its economic clout to try to strengthen restrictions on speech, pressing businesses to become censors on its behalf. In the end, it was a business – Google -- that fought back, in part because censorship threatened its business model.
GoDaddy.com, the world’s largest web registrar, also announced that it would no longer register domains in China because onerous government requirements forcing disclosure of customer identities made censorship easier.
Despite these efforts, China still leveraged access to its lucrative market to gain the upper hand because others in the Internet industry, such as Microsoft, did not follow Google’s lead.
Conversely, the one time that China backed off was when it faced concerted pressure - it apparently abandoned its “Green Dam” censoring software when the industry, civil society, governments, and China’s own Internet users all loudly protested. And even Google’s license to operate a search engine in China was renewed, casting further doubt on the idea that a public critique of China’s human rights practices would inevitably hurt business.
Ironically, some of the governments most opposed to using pressure to promote human rights have no qualms about using pressure to deflect human rights criticism.
China, for example, pulled out all stops in an ultimately unsuccessful effort to suppress a report to the UN Security Council on the discovery of Chinese weaponry in Darfur despite an arms embargo. Sri Lanka did the same in an unsuccessful effort to quash a UN advisory panel on accountability for war crimes committed during its armed conflict with the Tamil Tigers.
China also mounted a major lobbying effort to prevent the awarding of the Nobel Peace Prize to imprisoned Chinese writer and human rights activist Liu Xiaobo, and when that failed, it tried unsuccessfully to discourage governments from attending the award ceremony in Norway. China made a similar effort to block a proposed UN commission of inquiry into war crimes committed in Burma.
But HRW saves its harshest criticism for the United Nations and the European Union. The report excoriates "the failure of the expected champions of human rights to respond" to human rights violations around the world.
HRW says the use of “dialogue and cooperation in lieu of pressure has emerged with a vengeance at the United Nations, from Secretary-General Ban Ki-moon to many members of the Human Rights Council.”
In addition, the report says, leading democracies of the global South, such as South Africa, India, and Brazil, have promoted quiet demarches as a preferred response to repression.
Recent illustrations include the Association of Southeast Asian Nations' (ASEAN) tepid response to Burmese repression, the United Nations' deferential attitude toward Sri Lankan wartime atrocities, and India's pliant policy toward Burma and Sri Lanka, the report said.
“The UN Human Rights Council has been especially timid, with many countries refusing to vote for resolutions aimed at a particular country. In an extreme example, rather than condemn Sri Lanka for the brutal abuses against civilians in the final months of the conflict with the Tamil Tigers, the council congratulated Sri Lanka,” Human Rights Watch said.
Although the EU's partnership and cooperation agreements with other countries are routinely conditioned on basic respect for human rights, it has concluded a significant trade agreement and pursued a full-fledged partnership and cooperation agreement with Turkmenistan, a severely repressive government, without conditioning either on human rights improvements or engaging in any serious efforts to secure improvements in advance, the report said.
And the EU opened accession discussions with Serbia despite its failure to apprehend and surrender for trial Ratko Mladic, the Bosnian Serb wartime military leader and an internationally indicted war crimes suspect, a key benchmark for beginning the discussions. The EU also lifted sanctions imposed on Uzbekistan after security forces massacred hundreds in 2005 in the city of Andijan, even though the Uzbek government took no steps to fill any of the EU criteria required for lifting the sanctions.
"Dialogue and cooperation have their place, but the burden should be on the abusive government to show a genuine willingness to improve," Roth said. "In the absence of the demonstrated political will by abusive governments to make change, governments of good will need to apply pressure to end repression."
The report said that if members of the Council want dialogue and cooperation to be effective in upholding human rights, they should limit use of these tools to governments that have demonstrated a political will to improve. “But whether out of calculation or cowardice, many Council members promote dialogue and cooperation as a universal prescription without regard to whether a government has the political will to curtail its abusive behavior,” HRW said.
These countries thus resist tests for determining whether a government’s asserted interest in cooperation is a ploy to avoid pressure or a genuine commitment to improvement–tests that might look to the government’s willingness to acknowledge its human rights failings, welcome UN investigators to examine the nature of the problem, prescribe solutions, and embark upon reforms.
“The enemies of human rights enforcement oppose critical resolutions even on governments that clearly fail these tests, such as Burma, Iran, North Korea, Sri Lanka, and Sudan,” the report said.
Similar problems arise at the UN General Assembly, the report says. As the Burmese military reinforced its decades-long rule with sham elections designed to give it a civilian facade, a campaign got under way to intensify pressure by launching an international commission of inquiry to examine the many war crimes committed in the country’s long-running armed conflict.”
A commission of inquiry, the report says, “would be an excellent tool for showing that such atrocities could no longer be committed with impunity. It would also create an incentive for newer members of the military-dominated government to avoid the worst abuses of the past.”
Yet some member states have refused to endorse a commission of inquiry on the “spurious grounds that it would not work without the cooperation of the Burmese junta.”
EU High Representative Ashton, in failing to embrace this tool, said: “Ideally, we should aim at ensuring a measure of cooperation from the national authorities.”
Similarly, a German Foreign Ministry spokeswoman said that, to help advance human rights in the country, it is “crucial to find some co-operation mechanism with the [Burmese] national authorities.”
Yet obtaining such cooperation from the Burmese military in the absence of further pressure is a pipe dream, the report says.
Another favorite form of cooperation is a formal intergovernmental dialogue on human rights, such as those that many governments conduct with China and the EU maintains with a range of repressive countries, including the former-Soviet republics of Central Asia.
“Authoritarian governments understandably welcome these dialogues because they remove the spotlight from human rights discussions,” HRW says.
With such dialogues, the public, including domestic activists, is “left in the dark, as are most government officials outside the foreign ministry.”
But Western governments also often cite the existence of such dialogues as justification for not speaking concretely about human rights violations and remedies in more meaningful settings -- as Sweden did, for example, during its EU presidency when asked why human rights had not featured more prominently at the EU-Central Asia ministerial conference.
The UN and EU are accused of "cowardice" for claiming to tackle human rights abuses in places like China or Uzbekistan through quiet dialogue and cooperation, the report said.
Highlighting its claim, the report was issued in Brussels the same day the European Union hosted controversial Uzbek President Islam Karimov despite protests from campaigners.
The New York-based non-governmental organization's executive director, Kenneth Roth, was sharply critical of "the failure of the expected champions of human rights to respond" to violations in an introduction to the 600-page report covering 100-plus regimes.
He sees the fundamental error made by United Nations Secretary-General Ban Ki-moon and other leading voices is to place the accent on quiet diplomacy, which he says is often a euphemism for "other interests at stake."
Roth cites a "tepid" response from Asian partners to repression in Myanmar, with the report saying the Burmese junta's release of democracy icon Aung San Suu Kyi on November 23 was preceded by no significant steps on 2,100 other political prisoners.
The UN is criticized for adopting a "deferential" attitude towards Sri Lankan President Mahinda Rajapaksa, alongside Myanmar's Than Shwe or Sudan leader Omar al-Bashir, with Ban said to have placed "undue faith" in the impact of his corridor diplomacy.
The EU's top diplomat, the much-criticized English baroness Catherine Ashton, is said to hide behind an "obsequious approach to Uzbekistan and Turkmenistan" where large energy interests dominate trade and political links.
Ashton's "quiet dialogue and cooperation often look like acquiescence" leading rights defenders to "sense indifference rather than solidarity," Roth wrote in a column for the International Herald Tribune in advance of the Report’s release.
Britain, France and Germany are all cited as appeasing Beijing.
The obsession with dialogue and cooperation is particularly intense at the UN Human Rights Council in Geneva, where many of the members insist that the Council should practice “cooperation, not condemnation.”
The report says, “A key form of pressure at the Council is the ability to send fact-finders to expose what abuses were committed and to hold governments accountable for not curtailing abuses. One important medium for these tools is a resolution aimed at a particular country or situation. Yet many governments on the Council eschew any country resolution designed to generate pressure (except in the case of the Council’s perennial pariah, Israel).”
"Near-universal cowardice," meanwhile, marks efforts at confronting China's "deepening crackdown on basic liberties," with huge Yuan investments -- whether in African natural resources or US and eurozone public debt -- ensuring silence is the preferred approach.
“The credibility of the EU as a force for human rights around the world also rests on its willingness to address human rights abuses by its own member states. With a record of discrimination and rising intolerance against migrants, Muslims, Roma, and others, inadequate access to asylum, and abusive counterterrorism measures, member states and EU institutions need to show greater political commitment to ensure that respect for human rights at home matches the EU's rhetoric abroad," the report charges.
The report cites recent examples of failure to exert pressure. These include the EU's “obsequious approach” toward Uzbekistan and Turkmenistan, the West's “soft reaction” to certain favored African autocrats such as Paul Kagame of Rwanda and Meles Zenawi of Ethiopia, and the “near-universal cowardice in confronting China's deepening crackdown on basic liberties.”
It adds that the most effective support for human rights in China in 2010 came from the Norwegian Nobel committee's awarding of the Nobel Peace Prize to imprisoned Chinese dissident Liu Xiaobo.
Prior to the recent visit of President Hu of China, there was concerted pressure from Obama’s left wing urging him to launch a full frontal attack on China’s human rights record.
To most of those on the left of the Democratic Party, Obama’s attack was far from “full frontal.” On the other hand, it was obvious that the American president intended to call attention to China’s pitiful human rights record and to keep the subject front and center while negotiations on other important issues were proceeding. The issue was now “on a table,” and was not going to be swept under the rug.
As a New York Times editorial noted, prior to Hu’s arrival, Obama “invited human rights advocates to the White House for a meeting on China.” Obama raised the issue from the very beginning of the State visit. It is reported that he also had a “very serious” discussion of human rights with Hu during a private dinner in the White House.
Many observers believe the president didn’t go far enough, but that he went as far as he could. But far fewer seem to believe Obama’s candor will have any impact on China’s domestic policies, at least not in the short term.
Sunday, January 23, 2011
King of Political Theater
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.”
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.”
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.”
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