Shocking Facts You Must Know About Solitary Confinement

By William Fisher

America’s sick economy has given birth to all kinds of unintended consequences – ranging from the middle class using food stamps to Washington legislators engaging in inartfully faux Kabuki Theater to persuade us voters that unnecessary costs are actually being cut.

Most of what goes on in Congress these days is unreconstructed showbusiness, not governance. The Imperial Darrel Issa is a master at merging the two art forms. This form of art is no doubt much appreciated by viewers of Fox news, who are quite content in their fact-free zone.

But every once in a while there appears a Congressional hearing on a subject that’s real. That’s really real!

And so it was that last week a Senate Committee held a Congressional hearing on a subject never before brought before our lawmakers: Solitary Confinement (SC). And adding to the anticipation of hearing graphic, gory testimony from actual victims of SC, this hearing was plonked down in the Senate in the middle of a Presidential campaign year.

A full compliment of witnesses stood ready to weigh in: Charles Samuels, Director Federal Bureau of Prisons; Commissioner Christopher Epps, Mississippi Department of Corrections; Stuart M. Andrews, Jr, Nelson Mullins Riley & Scarborough LLP; Anthony Graves, Founder, Anthony Believes; Craig Haney Professor of Psychology, University of California, Santa Cruz; and Pat Nolan, President, Justice Fellowship/Prison Fellowship Ministries.

This reporter wondered why. Prism explored the issue with various lawyers associated with the multiple campaigns to drastically reduce solitary confinement. This hearing hadn’t been hyped by the big-hitters scheduled to testify; there were no big hitters. Nor were there huge campaign donors among the witness panel. And of course from witnesses one might have anticipated came such words as cruel and inhuman, Christian morality, expensive, wasteful, necessary and “had it coming.”

These were the words that popped up in virtually every solitary confinement discussion over the last Century. No surprise here, except –

This reporter found some of the participants beginning to use words that until recently were rarely a part of any solitary confinement discussion: risk-reward ratios, less expensive alternatives, budget-neutral, development of new incentives to encourage better behavior. And so forth. The conversation sounded more like that of a bunch of accountants than a panel of penologists, criminologists, and psychologists.

So was Prism hearing a new approach where economy-speak was trumping the usual talk of conventional high-cost prisoner discipline? And was the high cost the product of shrinking prison budgets at state levels caused by the mandate for states to balance their annual budgets at a time when what little cash there was around was being used to plug other holes?

Most of those Prism talked with did not expect either the vocabulary or the techniques of solitary confinement to change quickly. In Government, it never does. But there seemed to be a clear sign of hope in the air.

Much of that hopefulness came from the Chairman, Dick Durbin. It was from his words that Prism concluded that this hearing was being held because Dick Durbin believed in it. Because he had believed in it for years. Because he saw injustice and was determined to try to fix it. One rarely finds such straight-forwardness in the Senate, where members and their staffs are more likely to be talking about legislative marks-ups, budgets, and payfors.

Looking at Durbin, there could be little doubt – even among the jaded reporters covering yet another hearing – that the Senator was a true believer.

Durbin ran through some of the stats. Today in the United States, he said, more than 2.3 million people are imprisoned. This is – by far – the highest per capita rate of prisoners in the world. And African Americans are incarcerated at nearly six times the rate of whites, while Hispanics are incarcerated almost twice as much. These numbers translate into human rights issues that we cannot ignore.

“That’s why I held a hearing on mental illness in prison in 2009. That’s why I authored the Fair Sentencing Act, which reduces the sentencing disparity between crack and powder cocaine

Amy Lettig, a senior staff attorney with the ACLU, agrees. She told Prism, “I think you certainly can attribute some of the current rethinking of criminal justice policies to the economic crisis in the states. There are some very real budget tradeoffs that have to made now and if the choice is locking up someone else’s kid or educating your own, what’s the wise choice?”

She added, “But it’s more than cost. We’ve reached a tipping point where it’s clear that our current policies aren’t sustainable and they don’t work. As a result, we see both conservatives and liberals across the country looking at the enormous costs of our current prison system and deciding that taxpayers are not getting their money’s worth because prisons are enormously costly, they generally do not rehabilitate anyone, and they frequently make people worse off. For example, both Texas and New York have recently decided to provide alternatives to incarceration, such as drug treatment in the community, and both have seen lower crime rates as a result.”
The faith community, she points out, “has always played a key role in speaking out for prisoners and reminding Americans of their moral obligations to fellow human beings. Many people of faith are also now speaking out about the wastefulness of our criminal justice policies. Because many faith groups are active both inside the prisons and in the communities they have a unique vantage point to say that our current policies don’t work, they aren’t cost-effective, and they contradict principles of faith for many religions.”

Listen to the testimony of Anthony Graves.

My name is Anthony Graves and I am death row exonoree number 138. I was wrongfully convicted and sentenced to death in Texas back in 1992, where my nightmare began. Like all death row inmates, I was kept in solitary confinement. I lived under some of the worst conditions imaginable with the filth, the food, the total disrespect of human dignity. I lived under the rules of a system that is literally driving men out of their minds. I was one week away from my 27th birthday when I was arrested, and this emotional torture took place for the next 18.5 years. I survived the torture by believing in my innocence and hoping that they would make it right. My life was saved, but those 18.5 years were no way to live.



I lived in a small 8 by 12 foot cage. I had a steel bunk bed, with a very thin plastic mattress and pillow that you could only trade out once a year. By the time a year comes around, you've been virtually sleeping on the steel itself. I have back problems as a result. I had a steel toilet and sink that were connected together, and it was positioned in the sight of male and female officers. They would walk the runs and I would be in plain view while using the toilet.


I had a small shelf that I was able to use as a desk to write on. This was the same shelf that I ate at. There was a very small window up at the top of the back wall. In order to see the sky or the back of the building you would have to roll your plastic mattress up to stand on. I had concrete walls that were always peeling with old dull paint. It's the image of an old abandoned one-room project apartment.


I lived behind a steel door that had two small slits in it, the space replaced with iron mesh wire, which was dirty and filthy. Those slits were cut out to communicate with the officers that were right outside your door. There was a slot that's called a pan hole and that's how you would receive your food. I had to sit on my steel bunk like a trained dog while the officer delivered my food tray. He would take a steel crow bar and stick it into the metal lock on the pan hole, it would fall open, which then allowed the officer to place your tray in the slot. Afterward, he then steps back, which was the signal for me to get off the bunk and retrieve my food. This is no different from the way we train our pets.



The food lacks the proper nutrition, because it is either dehydrated when served to you or perhaps you'll find things like rat feces or a small piece of broken glass. There is no real medical care. I had no television, no telephone, and most importantly, I had no physical contact with another human being for at least 10 of the 18 years I was incarcerated.



I was subjected to sleep deprivation. I would hear the clanging of metal doors throughout the night, an officer walking the runs and shining his flashlight in your eyes, or an inmate kicking and screaming because he's losing his mind.



Solitary confinement does one thing, it breaks a man's will to live and he ends up deteriorating. He's never the same person again. Then his mother comes to see her son sitting behind plexiglass, whom she hasn't been able to touch in years, and she has to watch as her child deteriorates right in front of her eyes. This madness has a ripple effect. It doesn't just affect the inmate; it also affects his family, his children, his siblings and most importantly his mother.

Senator Durbin was quick to outline what the hearing was all about.

He continued: “The United States holds far more prisoners in solitary than any other democratic nation. The Bureau of Justice Statistics found that in 2005, U.S. prisons held 81,622 people in some kind of restricted housing. In my home state of Illinois, 56% of the prison population has spent time in segregation.

“Solitary confinement is also extremely costly. For example, Tamms, Illinois’s only supermax prison, has by far the highest per prisoner cost of any Illinois prison – $61,522 in Fiscal Year 2010 – as compared to an average of $22,043 for other prisons.

“We didn’t always use solitary confinement at such a high rate. But in the 1980’s, states began creating expensive “supermax” prisons designed to hold people in isolation on a mass scale. These supermaxes, just like the crack cocaine sentencing laws, were part of the tough-on-crime policies that seemed to make sense at the time.

“But we now know that solitary confinement isn’t just used for the worst of the worst. Instead, we are seeing an alarming increase in isolation for those who don’t need to be there – and for vulnerable groups like immigrants, children, LGBT inmates, supposedly for their own protection.

“As a result of the work we have done preparing for this first-of-its-kind hearing, I am working on legislation to encourage reforms in the use of solitary confinement. We can no longer slam the cell door and turn our backs on the impact our policies have on the incarcerated and the safety of our nation.”

He described solitary confinement cells at California’s Pelican Bay State Prison: “The cells are windowless; the walls are white concrete. ...The overall effect is one of stark sterility and unremitting monotony. Inmates can spend years without ever seeing any aspect of the outside world except for a small patch of sky. One inmate fairly described [it] as being ‘like a space capsule where one is shot into space and left in isolation.’”

“Imagine spending 23 hours a day in a cell like that – for days, months, years – with no window to the outside world and very little, if any, human contact.”
And it appeared that everyone in the room – including the Republicans – believed his sincerity.

Since its opening in 1995, the Tamms supermax has been an enormous burden to Illinois taxpayers and done irreparable harm to prisoners by its use of long-term solitary confinement.

“Over the years there’s been a great deal of controversy around Tamms with family members, concerned citizens, advocates and lawyers repeatedly questioning the use of long-term solitary confinement in that facility. There are also courageous survivors like Brian Nelson who’s spoken out about the soul-crushing experience of solitary confinement. And high profile cases of severely mentally ill men being places in Tamms for years and years on end.
Actions against TAMMS and California's Pelican Bay are an outgrowth of the growing recognition that solitary confinement has shifted from a short-term, emergency measure to a long-term prison management strategy where human beings spend years and even decades in isolation, Lawyer Fettig told Prism. A federal lawsuit seeking to end the prolonged use of solitary confinement in California was filed in May by the New York-based Center for Constitutional Rights. Lawyers propose the case as a class-action on behalf of inmates at Pelican Bay State Prison who have been in solitary confinement for more than 10 years.

"Forty years ago solitary confinement was not a pervasive problem in the United States – indeed it had been largely discredited here a century ago. Pelican Bay, Tamms and the Congressional Hearing are part of a growing awareness that we’ve gone too far, spent too much, and caused too much harm. Congress, the courts, and the Executive branch are now being engaged to reign these practices in and ensure sensible and humane alternatives," she said.
Among those giving testimony was Charles Samuels, who is the director of the Federal Bureau of Prisons (BOP). The federal system is known for its abuse and usage of solitary confinement. Samuels’s predecessor resigned recently to become an executive with Corrections Corporation of America, the country’s leading for-profit prison system.
Samuels was unable to give an estimate of how many prisoners in the federal system are in solitary confinement; however, in 2010, out of 210,000 prisoners in the federal prison system there were over 11,000 prisoners in solitary. Samuels spoke of research on solitary confinement, which had been debunked.

Lawyer Fettig told Prism, “I’ve heard from a number of people who were surprised by the BOP’s apparent lack of preparation for the hearing and the lack of transparency in their response to questions from the Senate.”
She added, “Unfortunately, lack of transparency and accountability for BOP’s segregation and solitary practices is a very large problem. Indeed there is a dearth of data on solitary confinement at all levels – local, state and federal. We hope that one outcome of last week’s hearing will be a national mandate requiring mandatory reporting on solitary confinement policies, practices, and outcomes. The public has a right to know what’s being done in their name behind bars, and right now they simply don’t have access to that information.”

This article originally appeared on the pages of Prism Magazine.

Hero On The Run

An Analysis

By Lawrence Davidson

Part I – The Hero Becomes the Hunted

It was back in 2006 that Julian Assange and associates founded the Wikileaks website. Their goal was and is a noble and necessary one. Wikileaks aims at forcing the world’s governments to act with greater transparency, and therefore possibly rule more justly. It was Assange’s opinion that if governments were less able to lie and keep secrets, they would be less prone to break their own and international laws, or at least more likely to adhere to a general rule of decency allegedly shared by their citizenry. This is a truly heroic undertaking. What did Wikileaks do to accomplish this task? It created a web-based non-governmental window on government activity through which it makes public those official lies and secrets. This information is supplied to it by whistle blowers the world over.

Soon Wikileaks was telling the world about “extrajudicial killings in Kenya…toxic waste dumping on the coast of Cote d’Ivoire…material involving large banks…among other documents.” None of this got Assange into great trouble. The simple fact is that the ability of states such as Kenya and the Ivory Coast to reach out and crush an organization like Wikileaks is limited. However, in 2010 the website started publishing massive amounts of U.S. diplomatic and military documents, including damaging information on procedures at the Guantanamo Bay prison camp and a video documenting attacks on civilians in Iraq.

It is at this point that Assange, as the editor-in-chief of Wikileaks, became a criminal in the eyes of the U.S. government. The hero now became the hunted. Republican Representative Peter King of New York, an Islamophobe who unfortunately chairs the House Homeland Security Committee, labeled Wikileaks a “terrorist organization” and said that Assange ought to be “prosecuted under the Espionage Act of 1917.” On the Democratic side of the aisle, Diane Feinstein of California, chair of the Senate Intelligence Committee, claimed that Assange had harmed the national interest and “put innocent lives at risk” and therefore should be prosecuted for espionage. Actually, a good argument can be made that the stupid and corrupt policies of American politicians have done much greater harm to objectively defined national interest, particularly in the Middle East. In addition there is no evidence that any of Wikileaks’ actions have resulted in any loss of “innocent lives.” However, none of this can save Assange.

Part II – Who is the Real Criminal?

One of the serious questions raised by the case of Wikileaks and Julian Assange is just who is a criminal? If an organized crime syndicate commits illegal acts and some outside party reveals its activity, the syndicate might mark the witness for punishment. However, which one is the real criminal? Lots of governments act like organized crime syndicates. If you ask King or Feinstein what they think about the behavior of, say, Russia in Chechnya or China in Tibet, they are likely to describe that behavior as criminal. And, if Assange had just exposed the sins of Russia or China, he would be praised within the halls of Congress.

But what happens when the U.S. government behaves like an organized gang of criminals? After all, a very good case can be made that the leaders of the United States are systematically violating their own constitution with policies like indefinite detention. And the government’s behavior in Viet Nam, as well as in the run-up to the invasion of Iraq (for instance, in the application of draconian sanctions which did take the lives of up to a million innocents) and the actual occupation of that country, all violated more moral precepts than one cares to count. Then there is the practice of torturing suspected, but not actually convicted, terrorists, and the current use of drone attacks which kill more civilians than targeted enemies. Along comes Wikileaks and Assange to bear witness against some of these acts. Washington marks him for punishment. But just who is the real criminal?

It is to the enduring shame of most of the U.S. media that they did not, and still can’t, manage a straight answer to that question. The establishment press has always kept its distance from Assange, asserting that he was not a “real” journalist. This no doubt reflects the attitudes of its basically conservative owners and editors. For instance, the New York Times executive editor, Bill Keller, once called Assange a “smelly, dirty, bombastic…believer in unproven conspiracy theories….” He did this even while his own paper selectively dipped into the 391,832 Pentagon documents Wikileaks had divulged. Even then the information was used in the most innocuous fashion. I think it is fair to say that investigative journalism at a local (city or state) level still goes on in the U.S., but at the national level it has become an increasingly rare phenomenon.

Part III – Popular Disbelief

Though a noble and necessary effort, Assange’s Wikileaks experiment always faced very high odds, particularly in the U.S. This is because its revelations play themselves out within the context of an establishment culture that has long ago turned the great majority of people into subservient true believers. True believers in what? In the essential goodness of their nation as it operates in the world beyond its borders. Therefore, transparency might be acceptable for one’s local political environment where the mayor turns out to be corrupt, but foreign policy is something else again. For Americans in the post 9/11 age, foreign policy boils down to promoting democracy and development on the one hand, and protecting the citizenry from terrorists on the other. Within that frame of reference, it is nearly impossible for Americans to conceive of their national government as purposefully acting like a criminal organization. They just refuse to believe it.

Particularly in the so-called war against terrorism, most Americans see nothing noble or necessary about exposing the government’s clandestine operations. Thus, when Julian Assange points out the criminal behavior of those supposedly defending the nation, most citizens are going to feel indignant and rally around the flag. The messenger is soon the one who is seen as criminal and dangerous because he is undermining national security.

There are no greater adherents to this point of view than the political and military leaders who claim to be defenders of the nation. For them the old Barry Goldwater saying, “extremism in defense of liberty is no vice” excuses all excesses. Wikileaks both challenged and embarrassed them by making their innumerable excesses public. Thus, be they Democrats or Republicans, the so-called champions of homeland security are determined to silence him.

U.S. authorities have latched onto an exaggerated sex scandal in Sweden in which Assange is sought for questioning (though as yet not charged with any crime). They have pressured the Swedes to extradite Assange from his present UK residence when it would be much easier and efficient (as Assange has offered) for Stockholm to send court representatives to England to perform the questioning. So why do it the hard way? Because, once in Sweden, the head of Wikileaks could be given over to the Americans (something the British will not do). Assange will not cooperate in this game. As Glenn Greenwald has pointed out, “as a foreign national accused of harming U.S. national security, he has every reason to want to avoid ending up in the travesty known as the American judicial system.” When he recently lost his UK court battle against extradition, he sought asylum in the embassy of Ecuador, a country whose leaders are sympathetic to Assange’s plight. True to form, American media comment on Assange’s appeal for asylum has been disparaging.
Part IV – Conclusion

Julian Assange is now a hero on the run. And, he is probably going to stay that way for the foreseeable future. Even if he makes it to Ecuador he will need bodyguards to protect him from kidnaping or worse. As one Pentagon spokesman put it, “If doing the right thing is not good enough for [Assange] then we will figure out what other alternatives we have to compel [him] to do the right thing.” And what do America’s leaders regard as the “right thing” in this case? Obviously, keeping silent about Washington’s doing the wrong thing.

That is the nature of our world. Submerged in a culture defined by the educational and informational dictates of our leaders and their interests, many of us can not recognize when we are being lied to or misled. And, if someone tries to tell us what is happening, they sound so odd, so out of place, that we are made anxious and annoyed. So much so that, in the end, we don’t raise a finger when the messenger is hounded into silence.

Lawrence Davidson is a Professor of History at West Chester University, West Chester. His work is posted here with his permission.

Hope Dies at Guantánamo

By Marjorie Cohn

The following article originally ppeared in Jurist.




The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US

Supreme Court issued an order refusing to hear his case last week.

Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since

January 2002, after being detained while traveling to seek medical

treatment.



Latif had suffered serious head injuries as the result of a car

accident in 1994, and the Yemeni government paid for him to receive

treatment in Jordan at that time. But his medical problems persisted,

and in 1999 Yemen's Ministry of Public Health recommended that Latif

undergo tests, therapy and surgical procedures at his own expense.

Unable to afford it, Latif said he left Yemen in 2001 with the help of

a charitable worker to seek free medical treatment in Pakistan. When

he was picked up in Afghanistan — on his way to Pakistan — and

transferred to US custody in December 2001, Latif had his medical

records with him.



After a kangaroo court proceeding, a Combatant Status Review Tribunal

at Guantanamo declared Latif to be an "enemy combatant." He was not

allowed to attend the hearing, nor was he permitted to see the

evidence against him. Instead of a lawyer, he was given a "Personal

Representative" — a military officer who did not represent Latif's

interests.



Four years ago, the Supreme Court rejected the Bush administration's

argument that the detainees at Guantanamo had no right to contest the

legality of their confinement in US courts. In Boumediene v. Bush, the

Court upheld the habeas corpus rights of the detainees, saying they

must be given "a meaningful opportunity" to challenge their detention.



Latif petitioned a federal district court for a writ of habeas corpus.

The Obama administration opposed the petition, relying on information

from an interrogation report. Large sections of the report were

blacked out, so it is difficult to know exactly what the report says.

But we do know that, according to the report, Latif admitted to being

recruited for jihad, receiving weapons training from the Taliban and

serving on the front line with other Taliban troops. Latif said his

interrogators garbled his words so that their summary bears no

relation to what he actually said.



In the US District Court for the District of Columbia, Judge Henry

Kennedy granted Latif's habeas petition, concluding that it could not

"credit the information [in the Report] because there is serious

question as to whether the [Report] accurately reflects Latif's words,

the incriminating facts in the [Report] are not corroborated, and

Latif has presented a plausible alternative story to explain his

travel." It troubled Judge Kennedy that, "[n]o other detainee saw

Latif at a training camp or in battle. No other detainee told

interrogators that he fled from Afghanistan to Pakistan, from Tora

Bora or any other location, with Latif. No other type of evidence

links Latif to Al Qaeda, the Taliban, a guest house, or a training

camp."



Particularly significant to Judge Kennedy was that the "fundamentals

[of Latif's story] have remained the same." More than a dozen

interrogation summaries and statements contained "[Latif's] adamant

denials of any involvement with al Qaida [sic] or the Taliban; his

serious head injury from a car accident in Yemen; his inability to pay

for the necessary medical treatment; and his expectation and hope that

[the charitable worker] would get him free medical care."



Judge Kennedy also reasoned that errors in the report support "an

inference that poor translation, sloppy note taking . . . [blacked

out] . . . or some combination of those factors resulted in an

incorrect summary of Latif's words." The fact that Latif was found in

possession of his medical papers when seized, according to the judge,

"corroborat[ed]" Latif's "plausible" story.



The government appealed the district court ruling to the conservative

US Court of Appeals for the District of Columbia Circuit, which

reversed the grant of habeas corpus. The appellate court admitted that

the interrogation report was "prepared in stressful and chaotic

conditions, filtered through interpreters, subject to transcription

errors, and heavily redacted [parts blacked out] for national security

purposes." But for the first time, the DC Circuit held that government

reports must be accorded a "presumption of regularity." That means

they will be presumed to be true unless the detainee can rebut that

presumption.



Judge Janice Rogers Brown, who wrote the opinion for the two judges in

the majority on the three-judge appellate panel, twisted Boumediene's

statement that "innovation" could be used in habeas corpusproceedings

into a "presumption of regularity" in government reports. Judge Brown

criticized "Boumediene's airy suppositions."



The dissenting appellate judge, David S. Tatel, noted that, in

practice, the presumption of regularity will compel courts to

rubber-stamp government detentions because "it suggest[s] that

whatever the government says must be true." He concluded that the

report in Latif's case was inherently unreliable because "it

contain[s] multiple layers of hearsay." Judge Tatel accused the

majority of denying Latif the "meaningful opportunity" to contest the

lawfulness of his detention that Boumediene guarantees.



When seven detainees whose petitions had been denied by the DC

Circuit, including Latif, took their cases to the Supreme Court, they

hoped the high court would do justice. During the Bush administration,

the Court had struck down illegal and unjust executive policies. These

included the denial of habeas corpus rights to Guantanamo detainees,

the refusal to afford due process to US citizens caught in the "war on

terror" and theholding of military commissions because they violated

the Uniform Code of Military Justice and theGeneva Conventions.



But hope for justice died last week when the Court refused to even

consider the propriety of the appellate court's denial of habeas

corpus to those seven detainees. Henceforth, detainees who lose in the

DC Circuit cannot expect the Supreme Court to give them relief. Their

last stop will be at one of the most right-wing circuits in the

country, which overturns or delays all release orders by federal

judges if the government objects.



The Supreme Court's refusal to review the appellate court decisions in

these cases has rendered Boumedienea dead letter. Since 2008,

two-thirds of detainees who have filed habeas corpus petitions have

won at the district court level, yet not one of them has been released

by judicial order. Judge Tatel wrote that "it is hard to see what is

left of the Supreme Court's command in Boumediene that habeas review

be 'meaningful.'"



Like many men at Guantanamo, Latif went on a hunger strike to assert

the only power he had in the face of utter hopelessness — the power to

refuse food. He was force-fed for three months, which, he says, "is

like having a dagger shoved down your throat." As attorney Marc D.

Falkoff writes in his chapter about Latif inThe United States and

Torture: Interrogation, Incarceration, and Abuse, "[t]he United

Nations Commission on Human Rights calls this torture."



Of the 800 men and boys held at Guantanamo since 2002, 169 remain. Of

those prisoners, 87 have had their release approved by military review

boards established during the Bush administration, and later by the

Guantanamo Review Task Force established by President Obama in 2009.

Yet they continue to languish in the prison camp.



In her opinion, Judge Brown wrote, "Luckily, this is a shrinking

category of cases. The ranks of Guantanamo detainees will not be

replenished." Indeed, Obama has sent only one new prisoner to

Guantanamo. His strategy is to assassinate "suspected militants" or

people present in "suspicious areas" with drones, obviating the

necessity of incarcerating them and dealing with their detention in

court. As Judge Brown ominously observed, "Boumediene's logic is

compelling: take no prisoners. Point taken."

______________________________________________________

Marjorie Cohn is a Professor of Law at Thomas Jefferson School of Law


and past president of the National Lawyers Guild. She is editor of "The


United States and Torture: Interrogation, Incarceration, and Abuse,"


released earlier this year in paperback by NYU Press.






http://www.jurist.org/forum/2012/06/marjorie-cohn-latif-scotus.php

Tortured Punished, Torturer Cleared: The Story of Ahmed Abu-Ali.

The article below originally appeared in the pages of Prism Magazine.


By William Fisher

The year is 2003. In Saudi Arabia, the semester at the university American-born Ahmed Abu-Ali is attending in Medina is coming to an end. It’s exam time. Soon, he’ll be on a jet headed for his family’s home in Falls Church, Virginia.

But 23-year-old Abu-Ali never makes it to the airport. Or anywhere close. Instead he is arrested by Saudi security services “for questioning,” and imprisoned. And that’s where he would stay for the next twenty months. With no lawyer and no charge against him.

And where, Abu-Ali charges, he was routinely tortured, including the occasion when a “confession” was squeezed from him under extreme duress. It was a “confession” of a conspiracy to organize an Al Qaeda cell in the US, and to use guns or a suicide mission to kill the president of the United States.

At the same time, Abu-Ali’s parents, naturalized US citizens living in Northern Virginia, find themselves crazed by the frustration of effectively having their son “disappeared” – a victim of extraordinary rendition in plain sight -- and being unable to get a coherent story from either the Saudis, who are holding him, or the US, which they strongly suspect is apparently managing his incarceration.

Finally, in August 2004, after the FBI executed a search warrant on their home, Abu-Ali’s parents’ frustration reached a boiling point. They filed a habeas corpus lawsuit in the U.S. District Court of the District of Columbia, seeking a legal justification of Abu-Ali’s detention, and his ultimate release.

The legal team for the habeas action included high-profile constitutional rights scholar, Georgetown University law professor David Cole and other prominent civil rights lawyers, including Morton Sklar.

The government’s position had been that Abu-Ali was too dangerous to be brought to the US. But then it dropped its legal IED. It flew Abu-Ali to the United States. This mooted Judge Bates’s question, as lawyer Cassel put it, “whether the government could proceed upon secret evidence to block his return.”

Now that he was back in the States, it was a stretch to deny that the Abu-Ali’s Saudi detention was not with U.S. consent - indeed, according to attorney David Cole, his return was arguably facilitated at the U.S.'s behest.
It was only Judge Bates's interest in Abu Ali's case that changed the government's mind.

Judge Bates was concerned about the potentially indefinite imprisonment of a U.S. citizen, with the U.S.'s consent, in a foreign prison where due process is ignored and torture is common.

He had reason to be suspicious. Saudi Arabia’s human rights record had long been a disaster. It is generally acknowledged to be the most orthodox and repressive of the Arab regimes in the Middle East. It retains that role, even after the so-called Arab Awakening and the grisly situation in Syria.

The State Department Country Reports on Human Rights Practices for 2003 says Saudi Arabian security forces "tortured detainees" and that "torture and abuse were used to obtain confessions from prisoners." The report also cites " … credible reports that security forces continued to torture and abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention."

But now that Abu Ali was physically in the US, the government had to charge him with something – presumably that would reassure the public that the government was waging the “war on terror” relentlessly and successfully.

Abu-Ali was arraigned on February 22. The Government used Abu-Ali’s Saudi-prison confession, with an FBI agent testifying at the hearing on the bail motion, that Ali had confessed to Saudi officials that “he associated with persons involved with al-Qaeda, received things of value from them, and talked with one or more of them about how to assassinate President Bush, whether by car bomb or shooting.”

The government’s charge of conspiracy also seemed questionable. When the indictment was made available to the public, it raised an even larger question about the entire prosecution. Nowhere in the indictment is Abu-Ali tied to any terrorist event or action. Legal experts asked, “If his only transgression was conversation – speech -- what is the crime? Where’s the beef?”
Plainly, there was not enough evidentiary support for a charge of conspiracy to assassinate President Bush. Conspiracy normally requires an agreement, and an overt act in furtherance of the agreement. Nothing in the indictment suggests that Abu-Ali either agreed to attempt to assassinate Bush, or took any action as a step to doing so.

So, instead, the indictment simply charges Abu-Ali with having "associated" with alleged terrorists. Specifically, it claims that he talked about wanting to kill Bush with these persons, and that he received money from one or more of them -- for what purpose, it is unclear. Abu-Ali’s lawyers also argued that if their client had confessed at all, the confession was obtained under extreme duress – torture – and would have been inadmissible in court.

Justice Department attorneys said US courts lacked jurisdiction over cases involving US citizens in foreign custody. District Judge John D. Bates rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." He ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu-Ali's arrest and detention.

The government’s “position is as striking as it is sweeping," the judge said. He warned that its behavior would allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."
The indictment was later amended to add charges of conspiracy to assassinate the president, conspiracy to hijack aircraft, and conspiracy to destroy aircraft. The indictment alleged that Abu-Ali had joined a terrorist cell in Medina, led by senior al-Qaeda members Ali Al-Faqasi and Zubayr Al-Rimi, and that among the plots they were developing were a plan to assassinate the President of the United States, and a plan to mount 9/11-style attacks using planes transiting through the US.

Pretrial hearings began in the fall of 2005. The government's evidence was focused on the confession Abu-Ali had allegedly made while in Saudi custody. Abu-Ali challenged the admissibility of the confession, claiming: (1) it was involuntary due to alleged torture he had suffered at the hands of the Saudis; and (2) he should have been given certain constitutional protections (including Miranda warnings), because the interrogations were a joint venture between the FBI and Saudi authorities, rather than a purely Saudi interrogation, which would not have been subject to the same scrutiny under the U.S. Constitution.

After an extended pre-trial suppression hearing, in which Abu-Ali himself testified, Judge Gerald Bruce Lee, who presided over the case, ruled that Abu-Ali's confession to Saudi agents was admissible.

Abu-Ali testified that on the first day, his interrogators asked him whether he knew specific people and whether he knew about bombings in Riyadh. At one point, his blindfold was taken off. Abu-Ali said he then saw the bruised face of a man through a window in the door to the room. The man was asked if he knew Abu-Ali, and he shook his head no, then was taken away.

Abu-Ali testified he was not fed this day. He says the Saudis hit him, slapped him, punched him in the stomach, and pulled his beard, ears, and hair. He was not allowed to use the bathroom, even when he asked to wash up for prayers. The next day, the Saudis continued hitting him. At one point, he was taken from the chair in which he was sitting, and his handcuffs were handcuffed to a chain or other handcuffs in the floor, leaving him with his knees to his chest on the ground, hunched over with his head on his fists, and his feet shackled. Then someone began to strike him on the back and to yell, “confess!”

Abu-Ali said it was “very painful” and that it was the “first time I felt extreme pain.” Eventually, Abu-Ali told them he would cooperate. The beating stopped, and he was taken back to his cell.

The jury trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Abu-Ali was sentenced to 30 years in prison for his crime.

On appeal, the United States Court of Appeals for the Fourth Circuit upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines which call for life in prison. Judge Lee re-sentenced Abu-Ali to life in prison.

In the “Supermax” prison in Florence Colorado, Abu-Ali is held in solitary confinement under “Special Administrative Measures” (SAMs).

“My brother has spent the past five years in solitary confinement, under 23-hour lockdown, in a 7x12 cell. He has one recreational hour in which he must get strip-searched if he wishes to leave his cell. He gets one unscheduled telephone call a month to his family, and receives the newspaper by the time news becomes history. If I send him a letter wishing him a happy birthday, he gets it 60 days later. When I visit him, once a year, I speak to him from behind a glass window. He is literally in a dungeon, over 20 meters beneath the ground,” says Mariam Abu-Ali, one of the prisoner’s sisters.

In August 2008, he requested permission to receive two books by Barack Obama, Dreams from My Father and The Audacity of Hope. Under SAMs, permission was denied by prison authorities on the grounds that the books contained material "potentially detrimental to national security."

Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter resulting in perpetual isolation, a form of torture under international law.

Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter “resulting in perpetual isolation, a form of torture under international law. The SAMs limit certain “privileges,” including, but not limited to, correspondence, visits, media interviews and telephone use,” Mariam Abu-Ali adds.

The financial and emotional impact of Abu-Ali’s trial and conviction on his family is different but no less painful. Prism discussed these issues with Mariam Abu-Ali, who is now 23, graduated from Georgetown, studying government and Arabic. She works for a not-for-profit that promotes Muslim values.

“We are not a family with a lot of money, so we were forced to ask for financial support from the community,” she told us.
“But there is so much Islamophobia in the country, and so much fear among American Muslims, that we weren’t able to tap into institutional resources such as Muslim American organizations or even mosques.”
She explained: “By and large most of those who gave money did so as individuals and did so secretly. Muslim organizations always came up with reasons they couldn’t support us.”

“Most people have no idea what it means financially when the government charges you with a crime. You need the best lawyers you can get, and lawyers are not cheap. Once the trial is over, if there is a conviction, you have to deal with prison visits. One of the truly draconian regulations at the Supermax is that there can only be two family visits a year. Each trip per person costs at least $2000. Once the prison authorities cancelled a family visit. Another time, we couldn’t scrape up the money,” she said, adding:

“Regardless of [inmates’] innocence or guilt, it is their right to be treated humanely. If we believe in the inherent dignity of each human being, then we should be outraged by these abuses. Unfortunately, abuse here in the United States rarely receives media attention.”

But the heart of the court’s pushback against the government came in Judge Bates’s eloquent memorandum written during the habeas hearing, before any criminal trial was contemplated. Judge Bates was a George W. Bush nominee to the court.

At one point, Judge Bates asked whether the government could identify “any case in which . . . even the legal theory for dismissal is not known to the other side?’ The government could not.”

He added: “Abu-Ali has been subjected to torture while in the Saudi prison. The United States does not offer any facts in rebuttal.”

He continued, “Abu-Ali was not captured on a battlefield or in a zone of hostilities -- rather, he was arrested in a university classroom while taking an exam.”

“Such principles, however, have never been read to extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive, and to access to the courts through the Great Writ of habeas corpus to challenge the legality of that detention.”

“The present posture of this case requires this Court to accept petitioner's well-supported allegations, to which the United States has not responded.”

Whether or not to allow the “confession” into the trial as evidence became moot when Ali was charged by the US with providing material support for a terrorist organization and conspiracy to kill President Bush.

With that, Judge Brady dismissed the Abu-Ali family’s habeas suit, and Ahmed’s trial on the government’s new criminal charges began the next day. The new judge was Gerald Bruce Lee, a Bill Clinton appointee.

The criminal trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Ali was sentenced to 30 years in prison for his crime. While prosecutors had pushed for a life sentence, Judge Lee explained that the (relatively) light sentence was handed down because Abu Ali's actions "did not result in one single actual victim.”

One legal court-watcher was overheard to comment, “With this fear of terror and terrorists, a prosecutor could indict a ham sandwich, without the ham”

Abu-Ali appealed, only to get more bad news. The United States Court of Appeals for the Fourth Circuit not only upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines, which call for life in prison. Judge Lee then re-sentenced Abu-Ali to life in prison.

There are a number of take-aways from the Ali case. One is the complete and pathetic impotence of anyone who finds himself trapped between two sovereign but cooperating states. A second is the emotional and financial catastrophe for the family of the detained or convicted that begins well before a prosecutor is able to produce an indictment. A third corruption of due process occurs when either side indicts un-named conspirators, or introduces them as witnesses in court, without revealing their identity or the content of their testimony.

Finally, the Abu-Ali case may well represent a new twist in that quaint term, “extraordinary rendition.” Abu-Ali was a young man who was diverted from returning to his home in the US, and was instead snatched out of a college classroom during an exam and “rendered” to prison in a country not his home where inmates have a history of being mistreated. That is one of the classic definitions of “extraordinary rendition.”

Moreover, other hallmarks of “extraordinary rendition” also appear to be present: “disappearance,” lack of due process, intermittent or non-existent consular services, and absence of legal counsel.

The only difference here is that most of the parties to this “disappearance” knew exactly where Abu-Ali was most of the time. Those who didn’t know had the greatest need to know: The Abu-Ali family, who would make the arrangements for legal representation and try to ensure civilized treatment for their kin.

Prism discussed this issue with Mariam Abu-Ali.

She told us, “He wasn't buried in a secret CIA black hole prison, but we were not aware of his detention until the FBI raided our home a week later, and after that we had no access to him at all for over a month. So at this time we were not even sure if he was dead or alive.”

She added, “The US government also denied any involvement in his detention, so we did not know of the joint interrogations until much later/ post our lawsuit.”
The US Government lied to Abu-Ali and his family. His trial made clear that the case against him was being executed by the FBI and Saudi Security jointly. But anyone who has a government knows that governments lie. They lie legitimately to protect state secrets or illegitimately to cover-up their previous lies or other embarrassing incidents.

It’s too late to reverse what’s already done. Barring some legal miracle, Abu-Ali will spend the rest of his life in prison under what most experts agree is a cruel case of over-sentencing triggered by the Federal Guidelines the government fashioned to help judges to be judges.

The best that can be done now is for Abu-Ali to seek relief from the unnecessary and uncivilized regimen called SAMs – a regimen that in effect condemns the inmate to a life in solitary confinement. And what we know beyond doubt is the impact of isolation – on inmate health and life itself.

In a month or so, Abu-Ali will be back in Court asking the Justice Department to end the SAMs imposed on Abu-Ali. Let us hope the government lawyers still remember that Justice is half their name.

‘War on Terror’ Making USA a Police State

The following article originally appeared in the pages of Prism Magazine.

By William Fisher

There are people like Mitt Romney who say things like fear makes us stronger. They reason that, if we are motivated by fear, say, of the “war on terrorism,” fear may be the emotion that gets us galvanized, but if the result is the strongest military in the world, no one will attack us. Millions of Americans believe this.

But there are many other points of view. Prof. David Cole of the Georgetown Law School reminds us of one of them: Historically, fear has caused the US to restrict civil liberties and abuse human rights during wartime.
It is now more than a decade since the tragic attacks of September 11, 2001. There are many who contend that the dangerous erosion of our freedoms began that awful day and have only accelerated since then.

George W. Bush’s Attorney General, John Ashcroft, began the “war on terrorism” by having the FBI and local law enforcement round up hundreds of “Middle-Eastern-looking” men (many of them not Muslims but Sikhs) and jailing them without charges or access to lawyers or families.

From that point forward, the downward spiral of repression has gathered speed. The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.

On October 26, 2001, President George W. Bush signed the Patriot Act into law. For many Americans – those who are politically aware and politically active – life has never been the same since. America was on its way to becoming a quasi-police state. The Surveillance State!

For millions of other Americans – the uninformed, the uncaring, the ignorant – life-as-usual was often tinged with fear and anger at the inhumanity of the World Trade Center attacks. That fear and anger were fed by our government. It assured that our officials would get everything they demanded in the way of material and human and financial resources to vanquish this new enemy.

Or as linguistics professor George Lakoff puts it, “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”

September 11 and the USA patriot Act began a process that would strip American democratic values to the bare bone, threatening to leave only the shell of a once-great nation.

Many with this point of view believe it will be generations before these basic American values will be restored, if ever.
Scott Horton, lawyer-journalist who writes for Harper’s.com, told Prism, “ Participation in discussions and decision-making about vital national-security issues is a fundamental part of any democracy. Indeed, if the people don't have the right to some say about decisions to go to war or make peace, then no matter what it proclaims their country isn't really much of a democracy.”

He added, “Since 9/11, all aspects of national-security decision making have been progressively enshrouded in secrecy and the public's right to know about them and have some say about what is done have been radically reduced. The extremes this process has reached became clear last spring, when the president committed U.S. forces to extended hostilities in Libya with no public discussion, no Oval Office speech announcing he was doing it, and no consultation with or approval from Congress.”

He concluded, “It established war-making as a unique presidential prerogative--the president would consult his shadowy top-secret-clearance holding national security experts, but no one else really had anything to say about it. This is the most fundamental loss of civil liberties we have seen in the last several decades; it is a subversion of the very essence of our democracy.”

Bruce Fein, one of the country’s outstanding Conservative attorneys and a member of the Reagan Administration, is particularly alarmed about the Obama Administration’s claim to be able to use unmanned drones and other methods to kill America’s enemies, including US citizens, and its support of indefinite detention without charge or trial of allies of Al Qaeda.
He told Prism,”The right to life has been extinguished by President Obama’s unilateral and limitless power to assassinate any person he says is a national security threat. The right to liberty has been extinguished by the President’s NDAA authority to detain for life without accusation or trial any person he decrees is substantially aiding an associated force of Al Qaeda. These time honored rights tracing back to Article 39 of the Magna Charta of 1215 will be restored only when the political culture embraces liberty rather than domination, control, and a futile quest for a risk-free existence as the nation’s signature.”

A similar sentiment was voiced by Prof. Jonathan Hafetz of Seton Hall law school. “One of the most basic freedoms that we have lost since 9/11 is the principle that no person should be imprisoned on suspicion of wrongdoing without being charged and provided a fair trial. The continued practice of indefinite detention and the use of military commissions rather than federal courts to try terrorism suspects has undermined a proud tradition dating back more than 200 years and undermined respect for the rule of law. It was an unnecessary step and one that will come back to haunt us,” he told Prism.

Kevin Johnson, dean of the law school at the University of California, Davis, worries about another by-product of fear: immigration.

He told Prism, “I believe that the post-September 11 ‘war on terror’ had a serious impact on the civil rights of immigrants and certain groups of U.S. citizens. Initially, the U.S. government imposed immigration and other restrictions on Arab and Muslim non-citizens. The concern with ‘terrorism’ morphed into a call for tighter enforcement of the U.S./Mexico border, even though there have been no documented efforts by terrorists to come into the country through the southern border.”

He continued: “The result has been greatly increased border enforcement efforts, record levels of detentions, and record levels of removals of non-citizens from the United States. For fiscal year 2010, the Obama administration deported nearly 400,000 non-citizens, with well over 99% having nothing whatsoever to do with terrorism. Many of them were guilty of relatively minor crimes but were picked up by local police and turned over the federal authorities under programs like Secure Communities. Families have been torn apart as non-citizen parents have been deported and U.S. citizen children have remained in the country (or effectively deported with their parents).”
He adds, “The ‘war on terror’ in transforming the public view of immigration has made comprehensive immigration reform extremely difficult for Congress to pass, which has had negative impacts on Latino and Asian immigrants and their families in the United States.”

Another perspective is offered by Colonel Morris D. Davis, a faculty member at the Howard University School of Law, US Air Force officer and lawyer who was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions. He resigned from that position and retired from active duty in October 2008.

Col. Davis told Prism, “A real challenge would be to name a liberty that has not been diminished. Think back to before September 11, 2001: extrajudicial assassination of U.S. citizens by order of the President, warrantless wiretapping, indefinite detention without charge or trial, impunity for torture, the use of state secrets and qualified immunity to block an aggrieved party from his or her day in court, a government groping before you can board an airplane, profiling people and infiltrating groups because of religious beliefs; those types of things were unimaginable…or at least they were in America.”

He added, “We went from being the “land of the free and home of the brave” to a nation of the constrained and the cowardly.”

Prof. Peter Shane of the Ohio State and Harvard law schools, put it this way: "What seems to me to have been lost -- or at least severely compromised -- since 9/11 is a sense that government actors who violate civil liberties in the alleged name of national security ought to be held to account. In the wake of FBI and CIA abuses during the Vietnam Era, we had the Church Committee investigation, which not only created a clear historical record of those abuses, but also laid the groundwork for what became the Foreign Intelligence Surveillance Act.”

He concluded: "In the wake of the Bush Administration's seeming disregard for law, we have had no equivalent effort. As a result, we, as Americans, can hardly have an intelligent, democratic debate about whether and how our civil liberties have been compromised and what to do about it. It is our national complacency in the absence of accountability that I find most troubling."

Among the most comprehensive worry-lists comes from Chip Pitts, former head of Amnesty USA and currently a lecturer at Stanford and Oxford.

He spoke to Prism from South Korea. “I believe it’s clear that in response to the increasingly common global issues of growing inequality, persistent poverty, shrinking economic opportunity, evaporating job security, and corrupt money in politics used to buy power, governments around the world have taken exactly the opposite approaches of what they should have.”

He continued: “Instead of listening to and responding to the legitimate tragically taken the opportunity to diminish meaningful rights to peaceful dissent and protest (including by ridiculous “free speech zones” that completely neuter protest and by threats of arrest or imprisonment even for non-violent actions). I’ve now seen this in a number of countries around the world, including here in South Korea as well as the US and in Europe, applied against diverse movements such as Occupy, Los Indignatos, the Russian dissidents, the remnants of the Arab Spring, and now the Canadian students and their allies.”

Sounding a note of caution, he said, “Everyone should be extremely disturbed by this growing tendency of governments, following the US lead, to casually change laws to allow repression, to import weapons from theaters of war abroad for use by police departments and ‘joint task forces at home, and generally to kill or chill dissent by threats and use of force, arrest, application of the ‘terrorist label, and now even indefinite detention and assassination without due process of law.”

Pitts asks, “What will it take to reverse the losses? An even more effective, democratic, cross-coalition, grassroots US and global people’s ‘movement of movements’, powered by privacy and rights-respecting new media social networks which allow individuals and groups to support each other and come together to creatively use the framework of the Universal Declaration of Human Rights to strategize, take common action, and peacefully deploy both classic and new techniques of non-violence that attract ever-greater numbers to the cause of a more sustainable and just, rights-based economy and politics.”

“The movement will be driven mainly by the 99%, but will also include current members of the 1% who prefer peaceful evolution to violent revolution. It will either dramatically transform or more likely sidestep the existing establishment parties, and connect people from diverse countries and perspectives globally who are ready for change – and see the urgent need for change before we have another financial crisis and even more repressive cycles of chaos and repression.”

There are also virtually endless lawsuits by groups who charge the corruption of their rights of citizenship. One of them is Muslim Advocates, which filed an unprecedented lawsuit against the New York Police Department challenging its policy of targeting innocent American Muslims for surveillance based on their faith. It is the first lawsuit by victims of the NYPD's discriminatory spying program.

As documented by the Associated Press, American Muslims were targeted in New York City, as well as in towns, mosques, businesses, and college campuses throughout the northeast, including New Jersey. Records show that the NYPD took copious notes on the details of American Muslims’ daily lives. Examples of the NYPD spying program include photographing an elementary school for girls, eavesdropping on grocery store patrons, and photographing attendees of Friday prayers as well as their license plates.
Author Nick Meyer addressed yet another related issue. He wrote:

“The attorney-client privilege assuring confidentiality between the two parties is one of the most cherished rights of the American law system, but according to internationally recognized lawyer, author and professor Francis A. Boyle of the University of Illinois-Champaign law school, government agents violated that privilege in a jarring summer 2004 visit.

Speaking to The Arab American News, Boyle confirmed to Meyer that he was visited by two agents from a joint FBI-CIA anti-terrorist fusion center located about a 90-minute drive away in Springfield, Ill. in his office in Champaign, who attempted to persuade him to become an informant on his Arab American and American Muslim clients.

Meyer writes that Boyle repeatedly refused their requests to violate his clients' constitutional rights, only to find himself placed on the U.S. Government's terrorist watch list.

Boyle told Prism there are several no-fly lists and he was on all of them. He said he was told he would stay on the watch list forever until the agencies that "put me on there took me off."

The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.

On October 26, 2001: President George W. Bush signed the Patriot Act into law.

In the early days after the attacks, we were constantly reminded that America is not only the land of the free, but also the home of the brave. On the evening of attacks, President Bush addressed the nation, and stated, “Our country is strong. Terrorist acts can shake the foundation of our biggest buildings, but they cannot touch the foundation of America.”

Which caused the American Civil Liberties Union (ACLU) to remark: “We could not have imagined that in the decade to follow, our country would engage in policies that directly defied American values and undermined our Constitution. We lost our way when, instead of addressing the challenge of terrorism consistent with our values, our government chose the path of torture and targeted killing, of Guantánamo and military commissions, of warrantless government spying and the entrenchment of a national surveillance state, all of which now define the post-9/11-era. That is not who we are, or who we want to be.”

Ten years later, our nation still faces the challenge of acting, not out of fear, but out of courage and confidence.

To quote the ACLU again, “The way forward lies in decisively turning our backs on the policies and practices that violate our greatest strength: our Constitution and the commitment it embodies to the rule of law. It is that strength which is the best rejoinder our nation has to violence and to those who advocate it. Liberty and security do not compete in a zero-sum game; our freedoms are the very foundation of our strength and security. Consistent application of the law is what ensures that practices don't change simply because of a change in the White House.”

This does not suggest that we should simply let terrorists – foreign or home-grown – run amok in our country. These miscreants must be caught and held to account. But a smarter stragegy rather than our current kitchen sink approach might enjoy a more substantial level of success.

Our choice is not between safety and freedom; in fact it is our fundamental values that are the very foundation of our strength and security.

Quoting George Lakoff again: “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”

Never Ending Prosecution andVendetta::The Kafkaesque Story of Sami Al-Arian

By William Fisher

In a nationwide press conference in 2003, George W. Bush’s attorney general, the born-again John Ashcroft, trumpeted the arrest of Dr. Sami al-Arian, who he described as “the most dangerous man in the world.”

In announcing the 120-page indictment, Ashcroft charged that al-Arian and his three co-defendants played “a substantial role in international terrorism…They finance … and assist acts of terror. Our message to them is clear: We make no distinction between those who carry out terrorist attacks, and those who knowingly finance, manage, or supervise terrorist organizations.” He charged that al-Arian had been actively funding terrorist attacks in Israel as the US leader of Palestinian Islamic Jihad.

All that was nine years ago. Nine years. And, in one form or another, Dr. al-Arian has pretty much been incarcerated ever since.

Incarcerated not in some tinpot dictatorship, but in the United States of America. The same America that prides itself on the fairness and integrity of its criminal justice system and the rule of law.

As Glenn Greenwald wrote in Salon: “Each time it appears that [al-Arian’s] plight will finally be over, the U.S. Government concocts a new process to ensure that he remains a prisoner.”

This is how it happened:

Rewind to the mid-1990s. That’s when the FBI began its decade-long surveillance of Dr. al-Arian. A Palestinian born in Kuwait, al-Arian was in the U.S.as a permanent resident. He was well-known in the Muslim Community throughout the United States, popular among his students at the University of South Florida (USF), where he was a tenured professor of computer engineering. At the same time, his reputation as a well-informed Palestinian was growing among members of Congress and advisors to President Clinton, who invited him to the White House.

Things began to turn sour for al-Arian after his university tried to fire him following his guest appearance on Bill O’Reilly’s show, The Factor, on Fox News. It was clear that USF was looking for a pretext to make the al-Arian story go away. The DOJ finally indicted al-Arian on Feb, 20, 2003, and accused him of backing organizations fronting for Palestinian Islamic Jihad – a 1997 State Department-designated “Foreign Terrorist Organization (FTO).”

It charged al-Arian with multiple counts of conspiracies to provide material support for this organization. The mountain of wiretaps, emails, speeches, lectures, and much more the FBI collected from Dr. al-Arian, would constitute the government’s case against him.

A week after al-Arian’s indictment, University of South Florida president Judy Genshaft fired him with the backing of then Governor Jeb Bush, and pressure from a vocal segment of the “Israel right or wrong” US foreign policy establishment.
despite the Constitutional guarantee of a speedy trial, the court case didn’t begin until 28 months later, during which al-Arian was held in solitary confinement.

And despite the Constitutional guarantee of a speedy trial, the court case didn’t begin until 28 months later, during which al-Arian was held in solitary confinement. He was locked in a small, windowless cell for 23 hours each day. So harsh were the conditions of his imprisonment that Amnesty International was compelled to write US prosecutors, “calling for a review of the pre-trial detention conditions…aspects of which it said appeared to be gratuitously punitive,’ ” and a breach of international standards.

The period leading up to the trial was marked by shrill and frequently inaccurate public accusations against al-Arian. Many of the more outrageous came from Fox News and from Steve Emerson, a self-styled “terrorism expert” best known for his off-the-wall predictions of impending terrorist attacks on the homeland. Emerson runs a not-for-profit outfit called The Investigative Project on Terrorism, and also has a for-profit company that does corporate and government consulting.

Among some of his more notorious claims, Emerson told a reporter shortly after the 1995 Oklahoma Citybombing that he believed the perpetrators were likely Islamic terrorists. The reporter, Tampa Tribune‘s Michael Fechter, wrote: “More and more, terrorism experts in the United States and elsewhere say Wednesday’s bombing inOklahoma City bears the characteristics of other deadly attacks linked to Islamic militants.” Fechter now works for Emerson’s Investigative Project.

The blogosphere was also alive with right-left battles over the al-Arian case. The mainstream print press appeared to be as clueless as usual in its coverage of legal proceedings. As it struggled to understand the legalese of the courtroom, it frequently elected to write about the easier-to-understand personal conflicts of the principals in the case, or turn to accessible but unreliable sources, such as Emerson. And as for cable news, including Fox, most coverage was reduced to minimally-informative sound bites.

But the tone of the press coverage, often quoting government officials, seemed to guarantee that the post-9/11 hysteria would frame the al-Arian trial as if the government had designed it.

Fox News Channel, NBC, Media General (specifically itsTampa newspaper) and the giant radio conglomerate, Clear Channel Communications (home of Rush Limbaugh’s broadcasts) shoulder an especially heavy burden for fanning the flames of post-9/11 hysteria.

As Eric Boehlert wrote in Salon, “In the wake of the Sept. 11 terrorist attacks, all four media giants, eagerly tapping into the country’s mood of vengeance and fear, latched onto the al-Arian story, fudging the facts and ignoring the most rudimentary tenets of journalism in their haste to better tell a sinister story about lurking Middle Eastern dangers here at home.”

In the wake of the Sept. 11 terrorist attacks, all four media giants, eagerly tapping into the country’s mood of vengeance and fear, latched onto the al-Arian story, fudging the facts and ignoring the most rudimentary tenets of journalism in their haste to better tell a sinister story about lurking Middle Eastern dangers here at home.

The impact of its battles with the US justice system on al-Arian’s family was profound. Leila al-Arian, one of three al-Arian daughters, told this reporter that “the adversity our family experienced brought us all much closer together. We had to depend on one another for emotional support.”

Leila, a journalist who lives in Washington, DC, said raising money for her father’s legal defense fund was probably the most stressful activity the family had to take on. “We knew just about nothing about raising money. Asking for financial help is a humbling experience.”

“What made it bearable – and successful – was the spirit and goodwill of so many people who offered to help. A woman in Tampa organized demonstrations in support of my father. A man in California, who had only a passing acquaintance with my father, became one of the national voices in his support. There were so many and many of them didn’t know us at all. They were just appalled by what was happening to my Dad,” she said.

Once al-Arian’s trial actually began, the prosecution called 80 witnesses, including more than 20 from Israel. Much of the government’s evidence presented to the jury during the six-month trial consisted of Dr. al-Arian’s speeches, lectures, articles, magazines, books he owned, and accounts of conferences he convened, rallies he attended, interviews he gave, and parts of hundreds of wiretapped phone calls from over a half million recorded.

When the defense’s turn came to present its case, it rested. It called not a single witness in its behalf. Its sole defense was that all of al-Arian’s written and spoken words were protected speech under the First Amendment.

After 13 days of deliberation, the jury found him innocent on eight of the charges, including the most serious, and hung on the rest, voting 10 to 2 to acquit.

After 13 days of deliberation, the jury found him innocent on eight of the charges, including the most serious, and hung on the rest, voting 10 to 2 to acquit. Two of Al Arian’s three co-defendants were acquitted completely.

The total collapse of the government’s case could only be seen as a devastating embarrassment for the Department of Justice (DOJ), which had spent an estimated $50-$80 million. Observers of the trial believe the DOJ won an expensive humiliation.

But the DOJ’s intent to re-try al-Arian led him to strike a secret plea bargain. He was desperate to avoid both the emotional and financial cost of a new trial to himself and his family. The essence of the plea deal was that al-Arian neither engaged in or had any knowledge of violent acts; that he would not be required to cooperate further with prosecutors; and that he would be released on time served and deported voluntarily to his country of choice.

In the meantime, al-Arian remained in custody pending sentencing and deportation. He expected to be freed on May 1, 2006. But the presiding judge changed the deal. He sentenced al-Arian to the maximum 57 months, gave him credit for time served, and ordered him held for the remaining 11 months, after which an April 2007 deportation would follow.

In October 2006, assistant prosecutor Gordon Kromberg violated the plea bargain terms by subpoenaing Al-Arian before a grand jury. His defense attorneys tried to block it by citing his “no-grand jury cooperation” promise. But prosecutors gutted the cooperation clause from the agreement, which was made during plea negotiations (when to prevent the DOJ from springing a perjury-obstruction trap). The defense’s motion was denied, and on November 16 Al-Arian again refused to testify and again was held in civil contempt.

A month later, the grand jury expired, a new one was convened, and al-Arian was again subpoenaed to testify. He continued to refuse, was held in contempt, and had his sentence increased by an additional year to April 7, 2008.

On March 3, 2008, Kromberg ordered al-Arian before still another March 19 grand jury, three weeks before his scheduled release and deportation. On the same day, al-Arian began his third hunger strike against the government’s continued harassment. For a man with diabetes, lack of food is life-threatening; he needs regular sustenance to avoid serious health problems. Al-Arian’s January through March, 2007 hunger strike had depleted a quarter of his body weight. His family says it gravely harmed him, and ended only at their urging.

Twenty days into his latest fast, and having lost 30 pounds, al-Arian was shuttled to various medical facilities. On March 18, he was returned to Warsaw, Virginia’s Northern Neck Regional jail ahead of his third grand jury appearance. Again, he refused to testify.

Because he refused to testify before a federal grand jury after the court held that he had no legal basis for refusing, in November 2006 he was held in civil contempt and imprisoned by a federal court judge in Virginia. He served 13 months on this charge until the court lifted its contempt order in December 2007. In June of 2008, at the behest of Kromberg, al-Arian was indicted on two counts of criminal contempt for not testifying.

In September 2008, al-Arian was released from detention on bond. He remains under house arrest as he awaits trial on criminal contempt charges

In September 2008, al-Arian was released from detention on bond. He remains under house arrest as he awaits trial on criminal contempt charges. For the first time in over five years, he was reunited with his family, but his ordeal continues. On this occasion alone, he has been waiting for his day in court for more than three years.

The Virginia grand jury that al-Arian has refused to appear before was investigating a Herndon, Va.-based think tank, the International Institute of Islamic Thought (IIIT), and its alleged terrorism financing and support networks.

The government claims IIIT gave money to a PIJ-related think tank in Tampa that al-Arian once ran. During the mid 1990s, this think tank employed several PIJ members, the government said, including Ramadan Abdullah Shallah, who left Tampa in 1995 for Syri at to assume leadership of PIJ. The PIJ affiliations of Shallah and others were acknowledged by al-Arian in his plea agreement.

At the time, his attorney, Professor Jonathan Turley, called the Justice Department’s ploy “a classic perjury trap used repeatedly by the government to punish those individuals who could not be convicted before an American jury.”

Obama’s prosecutors proved to be as ruthless as their predecessors. For example, DOJ asked the Court to deny a defense motion, filed 18 months earlier, to dismiss criminal contempt charges. Three previous DOJ motions were rejected.

This time, Holder prosecutors not only requested denying the defense’s dismissal motion, but asked Judge Brinkema to reverse her earlier decision letting al-Arian’s attorneys present evidence in case of trial.

In March 2009, she backed the defense’s request to file a motion to dismiss al-Arian’s charges, saying she’d rule later at further hearings, and expressing concern over government “bait and switch” tactics: “where Dr. al-Arian and his counsel were assured that, if he agreed to plead guilty (to one minor charge), he would not be subject to any further involvement with the DOJ beyond his deportation following the completion of his sentence.” Bush prosecutors reneged on the agreement and Obama’s lawyers followed suit. Judge Brinkema has never ruled on this request.

Al-Arian’s former appeals attorney, Professor Peter Erlinder, a former president of the National Lawyers Guild, said:

“The prosecution of Dr. Sami al-Arian was a blatant attempt to silence political speech and dissent in the aftermath of the 9/11 tragedy. The nature of the political persecution of this case has been demonstrated throughout all its aspects, not only during the trial and the never-ending right-wing media onslaught, but also after the stunning defeat of the government in 2005, and its ill-advised abuse of the grand jury system thereafter.”

Others who have followed the al-Arian case are equally critical. For example, Lawrence Davidson, professor of history at West Chester University in West Chester, Pennsylvania, told this reporter, “Bush thoroughly corrupted the Justice Department by stacking it with Christian Fundamentalists on the one hand and rabid Zionists on the other.”

He added, “The al-Arian case is a classical case of injustice and ideological corruption of the justice system. The judge (appointed by Bill Clinton) as well as the prosecutors should be disbarred. Everyone on the government side acted unethically, if not illegally.”

There is at least one further irony in the seemingly endless prosecution of Dr. al-Arian. Early in his trial, the judge ruled that information concerning the Israeli-Palestinian dispute could not be admitted as evidence. Yet that dispute is at the very center of the case and of al-Arian’s life. Were there no Israeli-Palestinian dispute, there would be no trial.

One wonders why al-Arian and not someone else? Glenn Greenwald gives a plausible explanation:

“In reality, al-Arian has been persecuted for one reason only: because he’s a Palestinian activist highly critical of the four-decade brutal Israeli occupation.”


This article originally appeared on the pages of the Prism Magazine website.

Who'll Have the Last Laugh?

By William Fisher

Andrew Rosenthal, the editor of the editorial pages for the New York Times, was practically ecstatic. He wrote: “Over the last several years, two private military contractors linked to prisoner abuse at Abu Ghraib have been pleading for the same treatment afforded to Pentagon execs. CACI and L-3 have asserted that their wartime activities are beyond the review of courts and have claimed “absolute official immunity” from litigation. But on Friday, the Court of Appeals for the Fourth Circuit ruled 11-3 that lawsuits against CACI and L-3 can proceed to a discovery phase.”

Likewise, Baher Azmy, legal director of the Center for Constitutional Rights, who helped argue the case on behalf of Abu Ghraib detainees, said it was finally “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court.” It might also shed some light on the Bush administration’s practice of outsourcing warfare in Iraq and Afghanistan to independent contractors.”

But will this case in fact provide “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court?”

Or will the Obama Administration, like the Bush lawyers before it, once again turn to the so-called “State Secrets Privilege” to get this case thrown out of court? Given its past performances, that would seem to be the logical culmination of this prosecution. Both the Bush and Obama legal teams have invoked “state secrets” on numerous occasions, proclaiming that revelation of any piece of the evidence in this case would subject the entire case to public scrutiny, thus revealing classified material whose disclosure would compromise U.S. national security.

As a result, we may find a human rights organization like the American Civil Liberties Union in the awkward position of defending contractors as they deny attempt to deny any public access to descriptions of activities the contractors will be desperate to suppress.

If the judiciary takes its customary position vis a vis the state secrets privilege, the contractors will have little to fear. Evidence needed to gain a conviction will likely never be heard in court because it is precisely the evidence that the government will contend compromises national security.

Meanwhile, legislative efforts to introduce changes into the state secrets law have come to a screeching halt, like just about everything in Congress at this time. There is unlikely to be any progress before the election.