By William Fisher
U.S. `drug war' funds and training are being used to support a known drug trafficker’s war against campesinos, a Latin American expert at the University of California at Santa Cruz charged today.
Prof. Dana Frank said today, "New Wikileaks cables reveal that the U.S. embassy in Honduras -- and therefore the State Department -- has known since 2004 that Miguel Facussé, the richest man in Honduras, who is allegedly responsible for the deaths of campesino activists in the Aguan Valley, is a cocaine importer.
“The U.S. is funding and training Honduran military and police that are conducting joint operations with the security guards of a known drug trafficker to violently repress a campesino movement on behalf of Miguel Facussé’s dubious claims to vast swathes of the Aguán Valley, in order to support his African palm biofuels empire.”
She added, "Despite strong anti-drug rhetoric from U.S. officials, State Department cables recently made available by Wikileaks show that the U.S. has been aware of the drug ties of one of Honduras’ most powerful and wealthy individuals since 2004, yet has continued to support him.”
She charged that “U.S. military and police assistance is also aiding the businessman, landowner and coup-backer Miguel Facussé, in a campaign of repression targeted at the campesinos whose land Facussé wants for production of palm oil,” adding:
“Despite the objections of 87 members of Congress, U.S. funding for the Honduran military and police continues, even though reports continue to emerge of police involvement in killings, such as in the recent case of the son of a university rector, and journalists and human rights activists continue to be targeted, with impunity."
The U.S. funds numerous programs in Latin America. One of them is known as The Central America Regional Security Initiative. Its goals are to create safe streets for the citizens in the region; disrupt the movement of criminals and contraband within and between the nations of Central America; support the development of strong, capable and accountable Central American Governments; Re-establish effective state presence and security in communities at risk; and foster enhanced levels of security and rule of law coordination and cooperation between the nations of the region.
The Public Record has so far been unsuccessful in asking the State Department to confirm this story and estimate the amount of money being used for these activities.
Frank is the author of several books including Bananeras: Women Transforming the Banana Unions of Latin America, which focuses on Honduras. Since the coup she has spoken widely on Honduras for National Public Radio, Al-Jazeera English TV, Free Speech Radio News, and radio throughout the US, Honduras, and elsewhere, and published op-eds in the San Francisco Chronicle, San Jose Mercury-News, LATimes.com, ChicagoTribune.com, The Progressive.org, Common Dreams, CounterPunch, and the Huffington Post, and multiple articles for The Nation and its website. She recently wrote "WikiLeaks Honduras: U.S. Linked to Brutal Businessman." (http://www.thenation.com/article/164120/wikileaks-honduras-us-linked-brutal-businessman)
Campesinos are Latin American peasants, usually farmers.
Thursday, November 03, 2011
Egypt’s Democracy: A Sometime Thing?
By William Fisher
As Egypt’s military rulers were pardoning 334 of the thousands being held for military trials, the generals may be preparing to administer the coup de grâce to Egypt’s nascent democracy.
The Supreme Council of the Armed Forces (SCAF) has drafted a set of "supra-constitutional" principles that would grant the military outsized influence in writing a new constitution, including the power to object to any article in the new constitution, and keep the armed forces' budget confidential.
Messages of strong condemnation have greeted the move from numerous political forces. The April 6 Youth Movement, Al Wasat Party, Mohammed ElBaradei and the Freedom and Justice Party (FJP) of the Muslim Brotherhood, all have attacked the new proposals as a way for the SCAF to avoid accountability.
The drafting of the “supra-constitutional” amendments is seen as simply one more instance of the Army’s inability to govern in a democratic context. After a honeymoon period brought on because the Army declined to attack the protesters in Tahrir Square last January, the military’s credibility has fallen precipitously.
That downward trajectory has been hastened by a series of SCAF’s self-inflicted wounds. It arrested an estimated 12,000 demonstrators and brought them to trial before military courts. It has also been vilified for failing to lift the so-called Emergency Laws in effect for 30 years under Mubarak. These laws give the police and the security services wide latitude to arrest and detain without probable (or any) cause, and to try lawyerless defendants who are often unaware of the charges against them,
The use of military courts – harkening back to the dark years of the Mubarak regime –has brought noisy and continuous opposition from political parties and social movements of all persuasions.
In the period preceding and following the fall of Mubarak on Febrnary 11, army military police rounded up thousands of peaceful demonstrators and threw them into prisons. There is ample credible testimony regarding their treatment in custody: The women were given “virginity” tests; the men were tortured and there were a number of deaths in detention.
This week’s pardon of a few hundred prisoners seems bizarre, given the total in custody. No explanation was forthcoming regarding how these prisoners were selected to be freed.
On the council's Facebook page, it said the decision reflects its belief in the importance of communication with Egyptian people and the revolution youth. The names of the detainees to be pardoned will be announced later, the statement added.
Meanwhile, Egypt’s “other” government – civilians who have zero independent power and merely put a civilian face on military decisions – have been trying to make the generals look as good as possible.
Deputy Prime Minister Ali Al Selmi held a meeting with over 500 political figures to discuss the constitutional draft. However a number of parties, including the FJP and Salafi groups, boycotted the meeting to protest its inclusion of many former National Democratic Party members.
Responding to the new amendments, the Muslim Brotherhood demanded the dismissal of the entire government if it "continues on this course of action."
Criticism of the SCAF grew even more heated recently after the council
detained activist Alaa Abd El Fattah for 15 days pending investigations into
charges he humiliated the armed forces. The young blogger has refused to speak to military prosecutors or stand trial on the grounds he should be tried in a civilian court, according to the newspaper, “Al-Masry Al-Youm.”
The Project on Middle East Democracy, ordinarily a reliable source, reported that “Thousands gathered on Tuesday in Cairo and Alexandria to demonstrate against the detainment of prominent blogger Alaa Abdel Fattah as well as on going military trials to which civilians are subjected. They also expressed support for Abdel Fattah's decision to refuse questioning by the military prosecution.
Protests in Cairo arrived at the prison where Abdel Fattah is currently being held, while in Alexandria demonstrations were held outside a military headquarters where chants condemning military trials could be heard.
Rights groups, including Amnesty International, as well as presidential hopeful Mohammed Saleem Al Awaa, have all denounced the arrest and demanded Abdel Fattah's immediate release.”
Egyptian Prime Minister Essam Sharaf said in a conference address that the armed forces are trying to transfer power to an elected civilian administration. The armed forces are protecting the current transition period, Sharaf added.
“Egypt is undergoing political developments that aim to achieve more democracy, transparency, and an improved standard of living.”
He said the government is working to make structural reforms to provide more work opportunities, particularly for low-income people. Rights groups and activists have accused SCAF of mismanaging the transition period and making unilateral decisions without consulting political forces.
Farid Zahran, member of the Egyptian Social Democratic Party, said, "The main issue that triggered heated argument was the secrecy clause protecting the military's budget. It would have been acceptable if they suggested that some items are confidential, but the military budget must be made public."
As Egypt’s military rulers were pardoning 334 of the thousands being held for military trials, the generals may be preparing to administer the coup de grâce to Egypt’s nascent democracy.
The Supreme Council of the Armed Forces (SCAF) has drafted a set of "supra-constitutional" principles that would grant the military outsized influence in writing a new constitution, including the power to object to any article in the new constitution, and keep the armed forces' budget confidential.
Messages of strong condemnation have greeted the move from numerous political forces. The April 6 Youth Movement, Al Wasat Party, Mohammed ElBaradei and the Freedom and Justice Party (FJP) of the Muslim Brotherhood, all have attacked the new proposals as a way for the SCAF to avoid accountability.
The drafting of the “supra-constitutional” amendments is seen as simply one more instance of the Army’s inability to govern in a democratic context. After a honeymoon period brought on because the Army declined to attack the protesters in Tahrir Square last January, the military’s credibility has fallen precipitously.
That downward trajectory has been hastened by a series of SCAF’s self-inflicted wounds. It arrested an estimated 12,000 demonstrators and brought them to trial before military courts. It has also been vilified for failing to lift the so-called Emergency Laws in effect for 30 years under Mubarak. These laws give the police and the security services wide latitude to arrest and detain without probable (or any) cause, and to try lawyerless defendants who are often unaware of the charges against them,
The use of military courts – harkening back to the dark years of the Mubarak regime –has brought noisy and continuous opposition from political parties and social movements of all persuasions.
In the period preceding and following the fall of Mubarak on Febrnary 11, army military police rounded up thousands of peaceful demonstrators and threw them into prisons. There is ample credible testimony regarding their treatment in custody: The women were given “virginity” tests; the men were tortured and there were a number of deaths in detention.
This week’s pardon of a few hundred prisoners seems bizarre, given the total in custody. No explanation was forthcoming regarding how these prisoners were selected to be freed.
On the council's Facebook page, it said the decision reflects its belief in the importance of communication with Egyptian people and the revolution youth. The names of the detainees to be pardoned will be announced later, the statement added.
Meanwhile, Egypt’s “other” government – civilians who have zero independent power and merely put a civilian face on military decisions – have been trying to make the generals look as good as possible.
Deputy Prime Minister Ali Al Selmi held a meeting with over 500 political figures to discuss the constitutional draft. However a number of parties, including the FJP and Salafi groups, boycotted the meeting to protest its inclusion of many former National Democratic Party members.
Responding to the new amendments, the Muslim Brotherhood demanded the dismissal of the entire government if it "continues on this course of action."
Criticism of the SCAF grew even more heated recently after the council
detained activist Alaa Abd El Fattah for 15 days pending investigations into
charges he humiliated the armed forces. The young blogger has refused to speak to military prosecutors or stand trial on the grounds he should be tried in a civilian court, according to the newspaper, “Al-Masry Al-Youm.”
The Project on Middle East Democracy, ordinarily a reliable source, reported that “Thousands gathered on Tuesday in Cairo and Alexandria to demonstrate against the detainment of prominent blogger Alaa Abdel Fattah as well as on going military trials to which civilians are subjected. They also expressed support for Abdel Fattah's decision to refuse questioning by the military prosecution.
Protests in Cairo arrived at the prison where Abdel Fattah is currently being held, while in Alexandria demonstrations were held outside a military headquarters where chants condemning military trials could be heard.
Rights groups, including Amnesty International, as well as presidential hopeful Mohammed Saleem Al Awaa, have all denounced the arrest and demanded Abdel Fattah's immediate release.”
Egyptian Prime Minister Essam Sharaf said in a conference address that the armed forces are trying to transfer power to an elected civilian administration. The armed forces are protecting the current transition period, Sharaf added.
“Egypt is undergoing political developments that aim to achieve more democracy, transparency, and an improved standard of living.”
He said the government is working to make structural reforms to provide more work opportunities, particularly for low-income people. Rights groups and activists have accused SCAF of mismanaging the transition period and making unilateral decisions without consulting political forces.
Farid Zahran, member of the Egyptian Social Democratic Party, said, "The main issue that triggered heated argument was the secrecy clause protecting the military's budget. It would have been acceptable if they suggested that some items are confidential, but the military budget must be made public."
Wednesday, November 02, 2011
Liberty Lost
William Fisher
As the country enters its second post-9/11 decade, I asked renowned human rights crusader Chip Pitts about what civil liberties/human rights we’ve collectively lost in the so-called “war on terror” as what was previously legal has now become criminal.
Here’s what he said:
“Virtually all of our most fundamental rights and liberties have been affected for the worse, with little or no awareness among the populace at large. The ignorance is no accident, but the product of conscious mendacity, manipulation and complicity among the leading political parties, all branches of government, defense contractors and the entrenched military-industrial-surveillance complex, and mainstream media – all of which (with occasional notable exceptions) are tragically pulled by various perverse incentives in the direction of trying to out-do each other in pandering to the basest fears and instincts of the American Body Politic”.
He added: “A huge number of legal violations have occurred, ranging from the momentous (illegal war) to the mundane (failure to fully notify the appropriate committees of Congress about the illegal warrantless surveillance as required under the National Security Act), but I’ll limit myself to highlighting the most significant to the rights of the American public.”
How has the ‘War on Terror’ impacted the Rule of Law?
“The first category of infringements I would place under the general rubric of undermining the Rule of Law. Although all the regressions could be put in this category, some strike more than others at the very concept itself. If the Rule of Law means anything, it means that everyone is subject to the same rules of general application and that those rules are fairly applied: a “government of laws, and not of men” as founding father and American President John Adams famously put it.
“Yet we now have a much more arbitrary system of justice, in which people can be deemed second-class citizens and have their assets seized, have their travel and other rights burdened, and be stigmatized, imprisoned, or even killed merely by essentially unreviewable executive fiat.”
That’s the net effect of new approaches including the following, all of which impose serious burdens without the traditional checks and balances and independent reviews previously enshrined in law:
· Asset Seizure section 106 of the Patriot Act, which has led for example to the closure on legally dubious grounds of nearly all of the major Muslim charities in the United States, among other seizures occurring merely upon executive branch “designation”,
· the notoriously error-ridden “watch lists” and “no fly” lists which have thrown certain innocent individuals into a Kafkaesque Hell from which there’s no easy escape, setting a precedent for further pernicious “government by watch-list” that extra-legally allocates benefits and burdens,
· the TSA bodyscanners, which don’t work to detect the plastic explosives which were their supposed reason for being, as noted by sources as diverse as the nonpartisan Government Accountability Office, and CNN’s Dr. Sanjay Gupta – but have been shown to pose risks to privacy and health, disproportionately burdening vulnerable populations including children, the elderly, religious objectors, and the immune-compromised who risk serious harm from the cumulative effects of long-term radiation exposure,
· the reality of profiling on racial, religious, ethnic, and national origin grounds, despite official rhetoric and policies against it, facilitated by reliance on a (likely unconstitutional) broad exception relating to national security and border-related investigations,
· the risk that anyone could be subject to the military commissions regime, a novel secondary justice system in which the executive branch is judge, jury, and executioner and in which a person may find themselves arbitrarily placed without principled distinction simply because they’ve been labeled a “terrorist” or “enemy combatant” (thus US citizen Jose Padilla was shifted at the last minute from the military to the civilian regime after years of being imprisoned, tortured, and denied counsel as an “enemy combatant,” and shoe bomber Richard Reid was tried in civilian court 400 other terrorists, but others find themselves subjected to the lower evidentiary and justice standards of the military regime, without reasoned explanation),
· Assassination (defenders call it legal “targeted killing”) even of US citizens off the battlefield, without due process of law, without lawyers or the right to confront the evidence or witnesses against them, without the right to trial by jury or any of the other protections guaranteed by the US Constitution.
Haven’t we also experienced specific infringements of fundamental rights crucial to our national identity and fundamental values?
“We certainly have. Even a cursory review of the Constitutional protections that have been compromised illustrates the point. For example:
· The First Amendment rights of freedom of speech, press, association, assembly, religion, and petitioning government for redress of grievances, all newly under pressure from widespread warrantless surveillance, secret datamining of private data, surreptitious infiltration of peaceful protest and solidarity groups, President Obama’s increased prosecution of supposedly protected whistleblowers and leakers, and changes in the law allowing criminalization and chilling of such speech and association promoting peace and human rights under the Patriot Act’s “material support” provision (which criminalized “expert advice and assistance” and was upheld in the US Supreme Court’s closely divided, erroneous decision Holder v. Humanitarian Law Project),
· The Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits), Patriot Act provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target), section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere “relevance” standard and probably also being interpreted to allow a secret datamining program some Senators say would “stun” and “anger” the US public if revealed), section 213 (allowing sneak and peek” secret black bag job searches of homes), and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).
· The Fifth Amendment rights to due process of law has been infringed not only by the extreme measure of assassination noted above, but also by increasingly routine arbitrary changes of the rules—contrary to President Obama’s promises -- so as to block accountability for other violations of fundamental rights, as with the use of the state secrets privilege, standing, and other procedural doctrines to completely immunize those who labeled citizens like Jose Padilla “enemy combatants”, or those who tortured, participated in extraordinary rendition (kidnapping and “disappearing” people) to places of torture, and planned and conducted warrantless surveillance,
· The Eighth Amendment rights to freedom from torture and cruel, inhuman, and degrading treatment (also protected by an international treaty, the Convention Against Torture, signed by Pres. Ronald Reagan, and by federal statute), which has been rhetorically embraced by both the Bush and Obama administrations but ignored in practice (especially by the former, but also allegedly to a lesser extent even by the latter, in cases such as those of Bradley Manning, Gulet Muhammed, and in Afghanistan and Iraq).
Have these major infringements spilled over into the routine law enforcement and justice systems of the United States?
“Some of us had naïve expectations that these developments wouldn’t further affect ordinary citizens. We all know that legions of ordinary citizens already have been harmed and had their privacy and liberties infringed by National Security Letters and other Patriot Act provisions, as decades of gradual progress in expanding rights have been undermined and generations who have fought for hard-won liberties have seen both their liberty and their security dramatically reduced this past decade. This category includes:
· The increasing militarization of domestic policing and intelligence gathering, as seen in such developments as the Pentagon’s new Northern Command, the Joint Special Operations Command (JSOC) involvement in domestic intelligence and counterterror efforts, Pentagon involvement in infiltration of domestic peace and anti-war groups, increasing deployment of weaponized drones within US borders as well as at the borders, and the surveillance, biometric, and other equipment and weapons defense contractors have imported from Iraq and Afghanistan into American streets, all as described (among others) by Dana Priest and Bill Arkin in their Top Secret America Washington Post series and book, and all in great tension with our Constitutional regime and historic bias against domestic deployment of military forces as reflected in Posse Comitatus and other laws,
· Although sold as temporary, emergency counterterror measures, these laws and approaches such as the Patriot Act have only become more permanent and used overwhelmingly for routine, domestic law enforcement (such as drug cases and minor offenses) – as repeatedly confirmed in the government’s own reports, such as the recent one described by the ACLU pertaining to “sneak and peek” home search warrants -- again contrary to the basic premises and fundamental laws of our democratic republic and its origins in a Declaration of Independence, Constitution, and Bill of Rights arranged precisely against such arbitrary and unconstrained power.
· The way the laws have, as described above, been used to immunize high officials and the powerful from accountability of any type (no torture victim has received his or her day in US court!) at the very time laws for lesser violations have resulted in the United States carrying the dubious honor of having imprisoned more of its population, in both absolute and percentage terms, than any other nation in the world. This discrepancy remains a substantial driver for the Occupy movement and can be expected to continue to drive social instability, protest, and conflict unless and until the gaps in transparency and accountability are remedied and again realigned with the original, sensible Constitutional vision and allocation of rights and powers.
__________________________________________________________________
Chip Pitts teaches human rights and corporate social responsibility law at Stanford Law School and Oxford University, and serves as a volunteer activist for a number of organizations and initiatives seeking to advance human rights, civil liberties, social justice, and economic development.
As the country enters its second post-9/11 decade, I asked renowned human rights crusader Chip Pitts about what civil liberties/human rights we’ve collectively lost in the so-called “war on terror” as what was previously legal has now become criminal.
Here’s what he said:
“Virtually all of our most fundamental rights and liberties have been affected for the worse, with little or no awareness among the populace at large. The ignorance is no accident, but the product of conscious mendacity, manipulation and complicity among the leading political parties, all branches of government, defense contractors and the entrenched military-industrial-surveillance complex, and mainstream media – all of which (with occasional notable exceptions) are tragically pulled by various perverse incentives in the direction of trying to out-do each other in pandering to the basest fears and instincts of the American Body Politic”.
He added: “A huge number of legal violations have occurred, ranging from the momentous (illegal war) to the mundane (failure to fully notify the appropriate committees of Congress about the illegal warrantless surveillance as required under the National Security Act), but I’ll limit myself to highlighting the most significant to the rights of the American public.”
How has the ‘War on Terror’ impacted the Rule of Law?
“The first category of infringements I would place under the general rubric of undermining the Rule of Law. Although all the regressions could be put in this category, some strike more than others at the very concept itself. If the Rule of Law means anything, it means that everyone is subject to the same rules of general application and that those rules are fairly applied: a “government of laws, and not of men” as founding father and American President John Adams famously put it.
“Yet we now have a much more arbitrary system of justice, in which people can be deemed second-class citizens and have their assets seized, have their travel and other rights burdened, and be stigmatized, imprisoned, or even killed merely by essentially unreviewable executive fiat.”
That’s the net effect of new approaches including the following, all of which impose serious burdens without the traditional checks and balances and independent reviews previously enshrined in law:
· Asset Seizure section 106 of the Patriot Act, which has led for example to the closure on legally dubious grounds of nearly all of the major Muslim charities in the United States, among other seizures occurring merely upon executive branch “designation”,
· the notoriously error-ridden “watch lists” and “no fly” lists which have thrown certain innocent individuals into a Kafkaesque Hell from which there’s no easy escape, setting a precedent for further pernicious “government by watch-list” that extra-legally allocates benefits and burdens,
· the TSA bodyscanners, which don’t work to detect the plastic explosives which were their supposed reason for being, as noted by sources as diverse as the nonpartisan Government Accountability Office, and CNN’s Dr. Sanjay Gupta – but have been shown to pose risks to privacy and health, disproportionately burdening vulnerable populations including children, the elderly, religious objectors, and the immune-compromised who risk serious harm from the cumulative effects of long-term radiation exposure,
· the reality of profiling on racial, religious, ethnic, and national origin grounds, despite official rhetoric and policies against it, facilitated by reliance on a (likely unconstitutional) broad exception relating to national security and border-related investigations,
· the risk that anyone could be subject to the military commissions regime, a novel secondary justice system in which the executive branch is judge, jury, and executioner and in which a person may find themselves arbitrarily placed without principled distinction simply because they’ve been labeled a “terrorist” or “enemy combatant” (thus US citizen Jose Padilla was shifted at the last minute from the military to the civilian regime after years of being imprisoned, tortured, and denied counsel as an “enemy combatant,” and shoe bomber Richard Reid was tried in civilian court 400 other terrorists, but others find themselves subjected to the lower evidentiary and justice standards of the military regime, without reasoned explanation),
· Assassination (defenders call it legal “targeted killing”) even of US citizens off the battlefield, without due process of law, without lawyers or the right to confront the evidence or witnesses against them, without the right to trial by jury or any of the other protections guaranteed by the US Constitution.
Haven’t we also experienced specific infringements of fundamental rights crucial to our national identity and fundamental values?
“We certainly have. Even a cursory review of the Constitutional protections that have been compromised illustrates the point. For example:
· The First Amendment rights of freedom of speech, press, association, assembly, religion, and petitioning government for redress of grievances, all newly under pressure from widespread warrantless surveillance, secret datamining of private data, surreptitious infiltration of peaceful protest and solidarity groups, President Obama’s increased prosecution of supposedly protected whistleblowers and leakers, and changes in the law allowing criminalization and chilling of such speech and association promoting peace and human rights under the Patriot Act’s “material support” provision (which criminalized “expert advice and assistance” and was upheld in the US Supreme Court’s closely divided, erroneous decision Holder v. Humanitarian Law Project),
· The Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits), Patriot Act provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target), section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere “relevance” standard and probably also being interpreted to allow a secret datamining program some Senators say would “stun” and “anger” the US public if revealed), section 213 (allowing sneak and peek” secret black bag job searches of homes), and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).
· The Fifth Amendment rights to due process of law has been infringed not only by the extreme measure of assassination noted above, but also by increasingly routine arbitrary changes of the rules—contrary to President Obama’s promises -- so as to block accountability for other violations of fundamental rights, as with the use of the state secrets privilege, standing, and other procedural doctrines to completely immunize those who labeled citizens like Jose Padilla “enemy combatants”, or those who tortured, participated in extraordinary rendition (kidnapping and “disappearing” people) to places of torture, and planned and conducted warrantless surveillance,
· The Eighth Amendment rights to freedom from torture and cruel, inhuman, and degrading treatment (also protected by an international treaty, the Convention Against Torture, signed by Pres. Ronald Reagan, and by federal statute), which has been rhetorically embraced by both the Bush and Obama administrations but ignored in practice (especially by the former, but also allegedly to a lesser extent even by the latter, in cases such as those of Bradley Manning, Gulet Muhammed, and in Afghanistan and Iraq).
Have these major infringements spilled over into the routine law enforcement and justice systems of the United States?
“Some of us had naïve expectations that these developments wouldn’t further affect ordinary citizens. We all know that legions of ordinary citizens already have been harmed and had their privacy and liberties infringed by National Security Letters and other Patriot Act provisions, as decades of gradual progress in expanding rights have been undermined and generations who have fought for hard-won liberties have seen both their liberty and their security dramatically reduced this past decade. This category includes:
· The increasing militarization of domestic policing and intelligence gathering, as seen in such developments as the Pentagon’s new Northern Command, the Joint Special Operations Command (JSOC) involvement in domestic intelligence and counterterror efforts, Pentagon involvement in infiltration of domestic peace and anti-war groups, increasing deployment of weaponized drones within US borders as well as at the borders, and the surveillance, biometric, and other equipment and weapons defense contractors have imported from Iraq and Afghanistan into American streets, all as described (among others) by Dana Priest and Bill Arkin in their Top Secret America Washington Post series and book, and all in great tension with our Constitutional regime and historic bias against domestic deployment of military forces as reflected in Posse Comitatus and other laws,
· Although sold as temporary, emergency counterterror measures, these laws and approaches such as the Patriot Act have only become more permanent and used overwhelmingly for routine, domestic law enforcement (such as drug cases and minor offenses) – as repeatedly confirmed in the government’s own reports, such as the recent one described by the ACLU pertaining to “sneak and peek” home search warrants -- again contrary to the basic premises and fundamental laws of our democratic republic and its origins in a Declaration of Independence, Constitution, and Bill of Rights arranged precisely against such arbitrary and unconstrained power.
· The way the laws have, as described above, been used to immunize high officials and the powerful from accountability of any type (no torture victim has received his or her day in US court!) at the very time laws for lesser violations have resulted in the United States carrying the dubious honor of having imprisoned more of its population, in both absolute and percentage terms, than any other nation in the world. This discrepancy remains a substantial driver for the Occupy movement and can be expected to continue to drive social instability, protest, and conflict unless and until the gaps in transparency and accountability are remedied and again realigned with the original, sensible Constitutional vision and allocation of rights and powers.
__________________________________________________________________
Chip Pitts teaches human rights and corporate social responsibility law at Stanford Law School and Oxford University, and serves as a volunteer activist for a number of organizations and initiatives seeking to advance human rights, civil liberties, social justice, and economic development.
Egypt’s Democracy: A Sometime Thing
By William Fisher
As Egypt’s military rulers were pardoning 334 of the thousands being held for military trials, the generals may be preparing to administer the coup de grâce to Egypt’s nascent democracy.
The Supreme Council of the Armed Forces (SCAF) has drafted a set of "supra-constitutional" principles that would grant the military outsized influence in writing a new constitution, including the power to object to any article in the new constitution, and keep the armed forces' budget confidential.
Messages of strong condemnation have greeted the move from numerous political forces. The April 6 Youth Movement, Al Wasat Party, Mohammed ElBaradei and the Freedom and Justice Party (FJP) of the Muslim Brotherhood, all have attacked the new proposals as a way for the SCAF to avoid accountability.
The drafting of the “supra-constitutional” amendments is seen as simply one more instance of the Army’s inability to govern in a democratic context. After a honeymoon period brought on because the Army declined to attack the protesters in Tahrir Square last January, the military’s credibility has fallen precipitously.
That downward trajectory has been hastened by a series of SCAF’s self-inflicted wounds. It arrested an estimated 12,000 demonstrators and brought them to trial before military courts. It has also been vilified for failing to lift the so-called Emergency Laws in effect for 30 years under Mubarak. These laws give the police and the security services wide latitude to arrest and detain without probable (or any) cause, and to try lawyerless defendants who are often unaware of the charges against them,
The use of military courts – harkening back to the dark years of the Mubarak regime – has brought noisy and continuous opposition from political parties and social movements of all persuasions.
In the period preceding and following the fall of Mubarak on Febrnary 11, army military police rounded up thousands of peaceful demonstrators and threw them into prisons. There is ample credible testimony regarding their treatment in custody: The women were given “virginity” tests; the men were tortured and there were a number of deaths in detention.
This week’s pardon of a few hundred prisoners seems bizarre, given the total in custody. No explanation was forthcoming regarding how these prisoners were selected to be freed.
On the council's Facebook page, it said the decision reflects its belief in the importance of communication with Egyptian people and the revolution youth. The names of the detainees to be pardoned will be announced later, the statement added.
Meanwhile, Egypt’s “other” government – civilians who have zero independent power and merely put a civilian face on military decisions – have been trying to make the generals look as good as possible.
Deputy Prime Minister Ali Al Selmi held a meeting with over 500 political figures to discuss the constitutional draft. However a number of parties, including the FJP and Salafi groups, boycotted the meeting to protest its inclusion of many former National Democratic Party members.
Responding to the new amendments, the Muslim Brotherhood demanded the dismissal of the entire government if it "continues on this course of action."
Criticism of the SCAF grew even more heated recently after the council
detained activist Alaa Abd El Fattah for 15 days pending investigations into
charges he humiliated the armed forces. The young blogger has refused to speak to military prosecutors or stand trial on the grounds he should be tried in a civilian court, according to the newspaper, “Al-Masry Al-Youm.”
The Project on Middle East Democracy, ordinarily a reliable source, reported that “Thousands gathered on Tuesday in Cairo and Alexandria to demonstrate against the detainment of prominent blogger Alaa Abdel Fattah as well as on going military trials to which civilians are subjected. They also expressed support for Abdel Fattah's decision to refuse questioning by the military prosecution.
Protests in Cairo arrived at the prison where Abdel Fattah is currently being held, while in Alexandria demonstrations were held outside a military headquarters where chants condemning military trials could be heard.
Rights groups, including Amnesty International, as well as presidential hopeful Mohammed Saleem Al Awaa, have all denounced the arrest and demanded Abdel Fattah's immediate release.”
Egyptian Prime Minister Essam Sharaf said in a conference address that the armed forces are trying to transfer power to an elected civilian administration. The armed forces are protecting the current transition period, Sharaf added.
“Egypt is undergoing political developments that aim to achieve more democracy, transparency, and an improved standard of living.”
He said the government is working to make structural reforms to provide more work opportunities, particularly for low-income people. Rights groups and activists have accused SCAF of mismanaging the transition period and making unilateral decisions without consulting political forces.
Farid Zahran, member of the Egyptian Social Democratic Party, said, "The main issue that triggered heated argument was the secrecy clause protecting the military's budget. It would have been acceptable if they suggested that some items are confidential, but the military budget must be made public."
As Egypt’s military rulers were pardoning 334 of the thousands being held for military trials, the generals may be preparing to administer the coup de grâce to Egypt’s nascent democracy.
The Supreme Council of the Armed Forces (SCAF) has drafted a set of "supra-constitutional" principles that would grant the military outsized influence in writing a new constitution, including the power to object to any article in the new constitution, and keep the armed forces' budget confidential.
Messages of strong condemnation have greeted the move from numerous political forces. The April 6 Youth Movement, Al Wasat Party, Mohammed ElBaradei and the Freedom and Justice Party (FJP) of the Muslim Brotherhood, all have attacked the new proposals as a way for the SCAF to avoid accountability.
The drafting of the “supra-constitutional” amendments is seen as simply one more instance of the Army’s inability to govern in a democratic context. After a honeymoon period brought on because the Army declined to attack the protesters in Tahrir Square last January, the military’s credibility has fallen precipitously.
That downward trajectory has been hastened by a series of SCAF’s self-inflicted wounds. It arrested an estimated 12,000 demonstrators and brought them to trial before military courts. It has also been vilified for failing to lift the so-called Emergency Laws in effect for 30 years under Mubarak. These laws give the police and the security services wide latitude to arrest and detain without probable (or any) cause, and to try lawyerless defendants who are often unaware of the charges against them,
The use of military courts – harkening back to the dark years of the Mubarak regime – has brought noisy and continuous opposition from political parties and social movements of all persuasions.
In the period preceding and following the fall of Mubarak on Febrnary 11, army military police rounded up thousands of peaceful demonstrators and threw them into prisons. There is ample credible testimony regarding their treatment in custody: The women were given “virginity” tests; the men were tortured and there were a number of deaths in detention.
This week’s pardon of a few hundred prisoners seems bizarre, given the total in custody. No explanation was forthcoming regarding how these prisoners were selected to be freed.
On the council's Facebook page, it said the decision reflects its belief in the importance of communication with Egyptian people and the revolution youth. The names of the detainees to be pardoned will be announced later, the statement added.
Meanwhile, Egypt’s “other” government – civilians who have zero independent power and merely put a civilian face on military decisions – have been trying to make the generals look as good as possible.
Deputy Prime Minister Ali Al Selmi held a meeting with over 500 political figures to discuss the constitutional draft. However a number of parties, including the FJP and Salafi groups, boycotted the meeting to protest its inclusion of many former National Democratic Party members.
Responding to the new amendments, the Muslim Brotherhood demanded the dismissal of the entire government if it "continues on this course of action."
Criticism of the SCAF grew even more heated recently after the council
detained activist Alaa Abd El Fattah for 15 days pending investigations into
charges he humiliated the armed forces. The young blogger has refused to speak to military prosecutors or stand trial on the grounds he should be tried in a civilian court, according to the newspaper, “Al-Masry Al-Youm.”
The Project on Middle East Democracy, ordinarily a reliable source, reported that “Thousands gathered on Tuesday in Cairo and Alexandria to demonstrate against the detainment of prominent blogger Alaa Abdel Fattah as well as on going military trials to which civilians are subjected. They also expressed support for Abdel Fattah's decision to refuse questioning by the military prosecution.
Protests in Cairo arrived at the prison where Abdel Fattah is currently being held, while in Alexandria demonstrations were held outside a military headquarters where chants condemning military trials could be heard.
Rights groups, including Amnesty International, as well as presidential hopeful Mohammed Saleem Al Awaa, have all denounced the arrest and demanded Abdel Fattah's immediate release.”
Egyptian Prime Minister Essam Sharaf said in a conference address that the armed forces are trying to transfer power to an elected civilian administration. The armed forces are protecting the current transition period, Sharaf added.
“Egypt is undergoing political developments that aim to achieve more democracy, transparency, and an improved standard of living.”
He said the government is working to make structural reforms to provide more work opportunities, particularly for low-income people. Rights groups and activists have accused SCAF of mismanaging the transition period and making unilateral decisions without consulting political forces.
Farid Zahran, member of the Egyptian Social Democratic Party, said, "The main issue that triggered heated argument was the secrecy clause protecting the military's budget. It would have been acceptable if they suggested that some items are confidential, but the military budget must be made public."
Saturday, October 29, 2011
LIBYA: From Revolution to Governance
By William Fisher
Anyone remember Judith Miller?
She is a Pulitzer Prize-winning reporter for The New York Times who went to jail rather than reveal her sources to a judge. Her coverage of Iraq's alleged Weapons of Mass Destruction (WMD) program both before and after the 2003 invasion generated much controversy. A number of stories she wrote while working for The Times later turned out to be inaccurate or completely false.
She had an awkward departure from The Times in November 2005, and later became a contributor to the Fox News Channel and a fellow at the conservative Manhattan Institute think-tank. Late last year, numerous media outlets reported that she had signed on as a contributing writer to the conservative magazine Newsmax.
In her latest editorial romp, she asks the question, “Will Democracy Prevail in Libya?”
That, of course, is the question everyone is asking since the death of Muammar Qaddafi. Ms. Miller weighs in with, “The death of Muammar Qaddafi means that a 40-year era of repression in that oil rich country is over. That is good news. But the next 48 hours will be crucial in determining Libya's future. This is the moment of truth for the Transitional National Council (TNC) and its chairman Mustafa Abdel-Jalil and prime minister Mahmoud Jabril.”
OK so far. This is pretty much what everyone already knows and advice that some analysts are recommending.
Miller then launches into a rant about the incredibly difficult things that the TNC and its leaders will have to achieve before Libya has even a remote chance of becoming a peaceful, representative, stable democracy serving the needs of its people. And they are incredibly difficult.
As a micro example of the macro changes that will put Libya on the road to some form of democracy, Miller tells this anecdote:
“Only last week as a delegation from the International Monetary Fund and the World Bank were meeting at the Finance Ministry in Tripoli, unknown armed militia men disrupted the meeting and ‘arrested’ a Libyan member of the Ministry of Finance delegation as the astonished visitors looked on, according to Libyan press reports.”
We should not be surprised by just about anything that happens in Libya in the coming weeks. Chalk it up to The Fog of War. But, as Miller correctly points out, “So far, the TNC has been unable to establish order or a political consensus among its 35 members from different regions, tribes, and ideologies. Nor has it been able to give control either its Military Council, nor the numerous militias throughout Libya that have been running their own towns and competing for control.”
Right. And she goes on to admonish: “So celebration is premature. Half of the TNC members continue to live in Benghazi; others are now in Tripoli. Various spokesmen contradict one another about basic facts regarding the economy, political maneuverings, and the militia which provides security at some key government ministries. The airport is controlled by another militia.”
The problem, Miller says, “is not money.” She goes on to explain that Libya is one of the world's largest producers of ‘sweet,’ light crude oil. And the U.S. has contributed $135 million in aid to Libya's new leaders since February. The Libyan assets that were frozen after Qaddafi was forced to flee are being unfrozen.
She then announces, “This is potentially a great moment for Libya. Its version of the "Arab Spring" which erupted in February and forced Qaddafi and his rapacious family from power, has now prevailed.”
But here comes her zinger: “…without American or NATO boots on the ground, and without a Libyan army that is loyal to the TNC and able and willing to restore order, Washington will just have to hope that the TNC can achieve the control that has so far seemed beyond its grasp.”
Miller’s prescription is right out of the neo-conservatives’ playbook. As they were able to incontestably demonstrate in the throughout the peaceful hamlets of Iraq and Afghanistan, to name but a few, “American or NATO boots on the ground” solves all problems. Just like they are doing in Afghanistan. Right!
I take a dim view of American boots – especially American – anywhere near Libya. First, it’s unclear that the US has any compelling national interest in Libya; NATO more closely has a dog in this game -- oil. Second, we’re suffering through the most painful economic environment in a generation – we probably can’t afford a third war. Third, the American people are war-weary; if the voters don’t have your back in wartime, you’ve lost. Finally, it is doubtful we have the troops – at least not the right kind of troops.
Our GIs know nothing about Libya, its people, its customs, its languages, its tribes. This is part of your armor if you’re going to try to use soft power, or smart power, rather than blunt trauma. Or are we going to have US or NATO troops bashing down doors in the middle of the night and dragging families out of their beds? That will certainly build one-ness among the country’s diverse population. We see how well that’s working in Iraq and Afghanistan.
No, the job that will sooner or later have to be done in Libya – and it will take years – is a heart-stoppingly complex job of internal development. Qaddafi was beyond clever in organizing his regime (or, more correctly, not organizing it.) He put no robust institutions in place. And since there were no jobs to fill in his empty institutions, there was no need to train people to occupy chairs that weren’t there. After all, Libya has oil!
The world is full of talented, sensitive, tough, multilingual development specialists. And they are not just the “Beltway Bandits” of the Washington DC area. This global fraternity/sorority of individual and corporate development specialists – including UN agencies -- knows how to help Afghans write a Constitution, organize a political structure that is truly representative of Libya’s people, monitor free and fair elections, help lawmakers and judges build a Code of criminal and civil conduct, work to build a rule of law, expand the skills capacities in the various ministries, and begin to wean Libya off its one-product status by introducing foreign investment in industry and agriculture and working with farmers and industrialists to bring Libya the most up-to-date and proven techniques and technologies to help make these ventures successful.
If the US is asked to help in this undertaking, it should give serious consideration. But many other countries – some with far more substantial and apparent national security interests than the US has – are at least as well equipped.
So, no, I don’t think with Judy Miller that this is not the time for celebration. It is time for a huge, albeit relatively brief celebration. But Libyans would do well to keep a watchful eye on Egypt to fully appreciate how hard it is to turn from revolution to governance.
Anyone remember Judith Miller?
She is a Pulitzer Prize-winning reporter for The New York Times who went to jail rather than reveal her sources to a judge. Her coverage of Iraq's alleged Weapons of Mass Destruction (WMD) program both before and after the 2003 invasion generated much controversy. A number of stories she wrote while working for The Times later turned out to be inaccurate or completely false.
She had an awkward departure from The Times in November 2005, and later became a contributor to the Fox News Channel and a fellow at the conservative Manhattan Institute think-tank. Late last year, numerous media outlets reported that she had signed on as a contributing writer to the conservative magazine Newsmax.
In her latest editorial romp, she asks the question, “Will Democracy Prevail in Libya?”
That, of course, is the question everyone is asking since the death of Muammar Qaddafi. Ms. Miller weighs in with, “The death of Muammar Qaddafi means that a 40-year era of repression in that oil rich country is over. That is good news. But the next 48 hours will be crucial in determining Libya's future. This is the moment of truth for the Transitional National Council (TNC) and its chairman Mustafa Abdel-Jalil and prime minister Mahmoud Jabril.”
OK so far. This is pretty much what everyone already knows and advice that some analysts are recommending.
Miller then launches into a rant about the incredibly difficult things that the TNC and its leaders will have to achieve before Libya has even a remote chance of becoming a peaceful, representative, stable democracy serving the needs of its people. And they are incredibly difficult.
As a micro example of the macro changes that will put Libya on the road to some form of democracy, Miller tells this anecdote:
“Only last week as a delegation from the International Monetary Fund and the World Bank were meeting at the Finance Ministry in Tripoli, unknown armed militia men disrupted the meeting and ‘arrested’ a Libyan member of the Ministry of Finance delegation as the astonished visitors looked on, according to Libyan press reports.”
We should not be surprised by just about anything that happens in Libya in the coming weeks. Chalk it up to The Fog of War. But, as Miller correctly points out, “So far, the TNC has been unable to establish order or a political consensus among its 35 members from different regions, tribes, and ideologies. Nor has it been able to give control either its Military Council, nor the numerous militias throughout Libya that have been running their own towns and competing for control.”
Right. And she goes on to admonish: “So celebration is premature. Half of the TNC members continue to live in Benghazi; others are now in Tripoli. Various spokesmen contradict one another about basic facts regarding the economy, political maneuverings, and the militia which provides security at some key government ministries. The airport is controlled by another militia.”
The problem, Miller says, “is not money.” She goes on to explain that Libya is one of the world's largest producers of ‘sweet,’ light crude oil. And the U.S. has contributed $135 million in aid to Libya's new leaders since February. The Libyan assets that were frozen after Qaddafi was forced to flee are being unfrozen.
She then announces, “This is potentially a great moment for Libya. Its version of the "Arab Spring" which erupted in February and forced Qaddafi and his rapacious family from power, has now prevailed.”
But here comes her zinger: “…without American or NATO boots on the ground, and without a Libyan army that is loyal to the TNC and able and willing to restore order, Washington will just have to hope that the TNC can achieve the control that has so far seemed beyond its grasp.”
Miller’s prescription is right out of the neo-conservatives’ playbook. As they were able to incontestably demonstrate in the throughout the peaceful hamlets of Iraq and Afghanistan, to name but a few, “American or NATO boots on the ground” solves all problems. Just like they are doing in Afghanistan. Right!
I take a dim view of American boots – especially American – anywhere near Libya. First, it’s unclear that the US has any compelling national interest in Libya; NATO more closely has a dog in this game -- oil. Second, we’re suffering through the most painful economic environment in a generation – we probably can’t afford a third war. Third, the American people are war-weary; if the voters don’t have your back in wartime, you’ve lost. Finally, it is doubtful we have the troops – at least not the right kind of troops.
Our GIs know nothing about Libya, its people, its customs, its languages, its tribes. This is part of your armor if you’re going to try to use soft power, or smart power, rather than blunt trauma. Or are we going to have US or NATO troops bashing down doors in the middle of the night and dragging families out of their beds? That will certainly build one-ness among the country’s diverse population. We see how well that’s working in Iraq and Afghanistan.
No, the job that will sooner or later have to be done in Libya – and it will take years – is a heart-stoppingly complex job of internal development. Qaddafi was beyond clever in organizing his regime (or, more correctly, not organizing it.) He put no robust institutions in place. And since there were no jobs to fill in his empty institutions, there was no need to train people to occupy chairs that weren’t there. After all, Libya has oil!
The world is full of talented, sensitive, tough, multilingual development specialists. And they are not just the “Beltway Bandits” of the Washington DC area. This global fraternity/sorority of individual and corporate development specialists – including UN agencies -- knows how to help Afghans write a Constitution, organize a political structure that is truly representative of Libya’s people, monitor free and fair elections, help lawmakers and judges build a Code of criminal and civil conduct, work to build a rule of law, expand the skills capacities in the various ministries, and begin to wean Libya off its one-product status by introducing foreign investment in industry and agriculture and working with farmers and industrialists to bring Libya the most up-to-date and proven techniques and technologies to help make these ventures successful.
If the US is asked to help in this undertaking, it should give serious consideration. But many other countries – some with far more substantial and apparent national security interests than the US has – are at least as well equipped.
So, no, I don’t think with Judy Miller that this is not the time for celebration. It is time for a huge, albeit relatively brief celebration. But Libyans would do well to keep a watchful eye on Egypt to fully appreciate how hard it is to turn from revolution to governance.
How Do They Sleep At Night?
By William Fisher
Cecilia Munoz has to be the most frustrated official in the Obama White House.
A longtime civil rights advocate, she was a major player at the National Council of LaRaza (NCLR), a non-profit organization established to improve opportunities for Hispanic Americans. In 2000, the 44-year-old was named a MacArthur Fellow for her work on civil rights and immigration.
Today, she’s the president’s chief advisor on Immigration Issues. Or perhaps we should say Deportation Issues.
When the PBS series, “Frontline,” did an hour-long piece on the immigration situation in the US today, it fell to Munoz to try to explain why the Obama Administration is deporting 400,000 people every year and racking up the largest number of deportations of any president in American history.
The 400,000 were supposed to be “serious criminals” caught by a program called Secure Communities, in which anyone booked at a local police station has his/her fingerprints automatically sent to the database of Immigration and Customs Enforcement (ICE). But people are also booked at police stations because of minor infractions such as a broken tail light spotted during a routine traffic stop, driving without a license, a 10-year-old bounced check – you get the idea.
These dangerous public enemies constitute half of all the “serious criminals” being deported. In the process, ICE is tearing families apart. It is deporting the parents of children born in the US – leaving the kids with relatives when possible, with public assistance agencies where not. Immigrants who may have been hard at work in the US for 20 years, raising families who obey the law and contribute to their communities, and with no criminal record, suddenly find themselves imprisoned in an ICE facility, where they could remain for a week, a month, or years. They have little due process, usually no lawyers, and the women are routinely subjected to sexual harassment.
Maria Hinojosa, who anchored the FRONTLINE program, asked Munoz, “Will the Obama Administration continue to oversee the deportation of 400,000 people each year?”
Munoz: “As long as Congress gives us the money to deport 400,000 people each year, that’s what the Administration is going to do.”
She adds: “We will be strategic about how we do it.”
Hinojosa: “Are you saying that there are 400,000 serious criminals who are not in jail now and who should be deported? Where are they? And how are you going to find them?”
Munoz: “The job of the executive branch of government is to implement laws passed by Congress. How we do it matters a lot, but there will be collateral damage. There will be parents separated from children.”
Collateral damage? It is mind-blowing to think that Ms. Munoz is actually speaking for the President of the United States, who is likely off in the hinterlands, making speeches to reassure Latino voters that comprehensive immigration reform is at the top of his priority tree.
Getting even further down in the weeds, Hinojosa interviewed Michael Rozos, who recently retired as head of an ICE field office. She questioned him about how ICE goes about making sure that it meets its 400,000 p.a. quota.
ROZOS: “Because the number 400,000 was what was agreed upon, what’s happened is you pick up whatever you can— so the low-hanging fruit, the high-hanging fruit and all the fruit that’s in between. You would pick up whatever you could and take your collateral apprehensions, which would be the other illegals that may be present when you’re arresting a fugitive, and bring them into custody, as well, to get the numbers moved up.”
Hinojosa: “The pressure to move the numbers up was evident in an internal ICE memo last year. ICE was at risk of falling “well under the agency’s goal of 400,000 deportations,” the memo says. In particular, it highlighted the shortfall of ‘non-criminal’ removals. So basically, Washington is setting some numbers, and on the ground, if you’re not meeting those numbers, then you’re being judged by not meeting those numbers.”
ROZOS: “You’re being judged or you’re being summoned to Washington. You know, you’ll get this ‘Be in my office tomorrow morning’ and so kind of a thing.”
That’s how ICE finds 400,000 “serious criminals” to deport every year.
And deporting 400,000 people is what the Obama Administration believes it will take to somewhat blunt the incessant primeval screams from the anti-immigrant Right – without completely alienating Latino voters without whom Obama is likely to be a one-term president.
Having served in government, I can recall my bosses making decisions I thought were wrong. They put me out of sorts for a day or so.
But I have never before experienced a professional who seems so willing to abandon both his principles and the millions who voted to put him where he is.
Maybe I’m just being naïve about all the compromises you have to make to get anything done in Washington these days, but this is not the change I can believe in.
Cecilia Munoz has to be the most frustrated official in the Obama White House.
A longtime civil rights advocate, she was a major player at the National Council of LaRaza (NCLR), a non-profit organization established to improve opportunities for Hispanic Americans. In 2000, the 44-year-old was named a MacArthur Fellow for her work on civil rights and immigration.
Today, she’s the president’s chief advisor on Immigration Issues. Or perhaps we should say Deportation Issues.
When the PBS series, “Frontline,” did an hour-long piece on the immigration situation in the US today, it fell to Munoz to try to explain why the Obama Administration is deporting 400,000 people every year and racking up the largest number of deportations of any president in American history.
The 400,000 were supposed to be “serious criminals” caught by a program called Secure Communities, in which anyone booked at a local police station has his/her fingerprints automatically sent to the database of Immigration and Customs Enforcement (ICE). But people are also booked at police stations because of minor infractions such as a broken tail light spotted during a routine traffic stop, driving without a license, a 10-year-old bounced check – you get the idea.
These dangerous public enemies constitute half of all the “serious criminals” being deported. In the process, ICE is tearing families apart. It is deporting the parents of children born in the US – leaving the kids with relatives when possible, with public assistance agencies where not. Immigrants who may have been hard at work in the US for 20 years, raising families who obey the law and contribute to their communities, and with no criminal record, suddenly find themselves imprisoned in an ICE facility, where they could remain for a week, a month, or years. They have little due process, usually no lawyers, and the women are routinely subjected to sexual harassment.
Maria Hinojosa, who anchored the FRONTLINE program, asked Munoz, “Will the Obama Administration continue to oversee the deportation of 400,000 people each year?”
Munoz: “As long as Congress gives us the money to deport 400,000 people each year, that’s what the Administration is going to do.”
She adds: “We will be strategic about how we do it.”
Hinojosa: “Are you saying that there are 400,000 serious criminals who are not in jail now and who should be deported? Where are they? And how are you going to find them?”
Munoz: “The job of the executive branch of government is to implement laws passed by Congress. How we do it matters a lot, but there will be collateral damage. There will be parents separated from children.”
Collateral damage? It is mind-blowing to think that Ms. Munoz is actually speaking for the President of the United States, who is likely off in the hinterlands, making speeches to reassure Latino voters that comprehensive immigration reform is at the top of his priority tree.
Getting even further down in the weeds, Hinojosa interviewed Michael Rozos, who recently retired as head of an ICE field office. She questioned him about how ICE goes about making sure that it meets its 400,000 p.a. quota.
ROZOS: “Because the number 400,000 was what was agreed upon, what’s happened is you pick up whatever you can— so the low-hanging fruit, the high-hanging fruit and all the fruit that’s in between. You would pick up whatever you could and take your collateral apprehensions, which would be the other illegals that may be present when you’re arresting a fugitive, and bring them into custody, as well, to get the numbers moved up.”
Hinojosa: “The pressure to move the numbers up was evident in an internal ICE memo last year. ICE was at risk of falling “well under the agency’s goal of 400,000 deportations,” the memo says. In particular, it highlighted the shortfall of ‘non-criminal’ removals. So basically, Washington is setting some numbers, and on the ground, if you’re not meeting those numbers, then you’re being judged by not meeting those numbers.”
ROZOS: “You’re being judged or you’re being summoned to Washington. You know, you’ll get this ‘Be in my office tomorrow morning’ and so kind of a thing.”
That’s how ICE finds 400,000 “serious criminals” to deport every year.
And deporting 400,000 people is what the Obama Administration believes it will take to somewhat blunt the incessant primeval screams from the anti-immigrant Right – without completely alienating Latino voters without whom Obama is likely to be a one-term president.
Having served in government, I can recall my bosses making decisions I thought were wrong. They put me out of sorts for a day or so.
But I have never before experienced a professional who seems so willing to abandon both his principles and the millions who voted to put him where he is.
Maybe I’m just being naïve about all the compromises you have to make to get anything done in Washington these days, but this is not the change I can believe in.
Sunday, October 23, 2011
A Tale of Two Convicts
By William Fisher
The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.
Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,
Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.
The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.
By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.
But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.
Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.
Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”
In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.
In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.
“The prosecution’s complete disregard for the truth in this case is stunning,”
said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”
All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.
During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.
On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.
Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)
Morton’s co-workers testified that he arrived at work at about 6 a.m. that
morning and didn’t notice anything unusual about his behavior.
The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.
“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.
She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”
Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.
The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again.
At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)
James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.
After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.
On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.
“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.
“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.
Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.
Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.
"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said today on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward."
New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.
In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.
Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”
For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.
“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”
In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.
The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.
The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.
Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.
The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.
Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.
The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans' support for the death penalty is continuing to decline.
According to Gallup's 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.
Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.
This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.
A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN's recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.
So it’s possible that the light at the end of the tunnel is not an oncoming train!
The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.
Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,
Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.
The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.
By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.
But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.
Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.
Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”
In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.
In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.
“The prosecution’s complete disregard for the truth in this case is stunning,”
said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”
All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.
During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.
On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.
Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)
Morton’s co-workers testified that he arrived at work at about 6 a.m. that
morning and didn’t notice anything unusual about his behavior.
The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.
“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.
She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”
Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.
The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again.
At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)
James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.
After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.
On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.
“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.
“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.
Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.
Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.
"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said today on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward."
New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.
In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.
Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”
For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.
“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”
In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.
The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.
The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.
Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.
The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.
Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.
The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans' support for the death penalty is continuing to decline.
According to Gallup's 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.
Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.
This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.
A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN's recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.
So it’s possible that the light at the end of the tunnel is not an oncoming train!
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