By William Fisher
An increasing number of headlines these days seem to start the same way: Joe Smith, wrongfully convicted of murder in 1989, walked out of prison today, a free man after more than two decades on Death Row.
That’s the good news. The double-whammy of bad news is that thousands of wrongfully convicted men and women are serving long sentences for crimes they did not commit – and at least one of these free men is not really free. Which doesn’t make putting his shattered life back together any piece of cake.
He is Kerry Max Cook, 56, whom Texas still considers a convicted murderer. Cook was convicted of the 1977 raping and murdering Linda Jo Edwards in Tyler, Tex. He’s had three trials: a first conviction that was reversed, a hung jury outcome in a second trial, and a third conviction that was overturned because it was found to be tainted by prosecutorial misconduct.
Prosecutorial Misconduct: A phrase you will find many times in this article.
While Smith County was considering a fourth trial for Cook, he entered into an unusual plea bargain. In 1999, under a bizarre Texas law, he pleaded “no contest” – neither an admission of guilt nor a profession of innocence – and walked out of jail.
DNA tests on the victim’s clothes eventually shone light on another man’s biological matter.
To Texas lawmen, however, Cook is a convicted murderer – no more, no less. Which means he is usually unable to find steady employment and experience the normal, everyday life of a non-felon.
“Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name. This freedom means nothing with a conviction,” said Cook. He is seeking new DNA testing to establish his innocence..
Cook’s anger-making story is part of a landmark report from the National Registry of Exonerations. The new institution, a partnership between the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, reveals that more than 2,000 wrongfully convicted individuals have been exonerated nationally since 1989.
The Texas Tribune has published a report by Brandi Grisssom, analyzing Texas cases involving prosecutorial misconduct but where the state bar has failed to take any action against the lawyers.
The item opens:
“In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today. None of those prosecutors has ever been disciplined.”
The Tribune noted, “It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.”
In Texas, Ridolfi told the Trib, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
Key Findings from the Report:
Snapshot figures of the 873 exonerated defendants:
93% are men, 7% women; 50% are black, 38% white, 11% Hispanic and 2% Native American or Asian; 37% were exonerated with the help of DNA evidence; 63% without DNA; as a group, they spent more than 10,000 years in prison – an average of more than 11 years each.
Since 2000, exonerations have averaged 52 a year – one a week – 40% of which include DNA evidence.
DNA exonerations are increasingly older cases: The average time from conviction to a DNA exoneration is now about 18 years, up from less than 7 years in the early 1990s, and murder cases – since 2008 most DNA exonerations are murder prosecutions, usually rape-murders, rather than sexual assaults.
The exonerations in the Registry are unevenly distributed geographically. They concentrated in several states, led by Illinois, New York, Texas and California.
Some counties, like Cook (Chicago), Illinois, and Dallas, Texas, have dozens of exoneration; other counties with millions of people, like San Bernardino, California and Fairfax, Virginia, have none. Neighboring counties are often very far apart. Santa Clara County, California – home of the Northern California Innocence Project – has 10 exonerations; directly to its north, Alameda County has more violent crime but no known exonerations.
The 873 exonerations are mostly rape and murder cases, but the data also include 18-20 many more exonerations for other crimes than previously known. All told, we have:
48% homicides (416) including 12% death sentences (101)
35% sexual assaults (305)
5% robberies (47)
5% other violent crimes (47)
7% drug, white collar and other non-violent crimes (58)
Causes of False Convictions
For all exonerations, the most common causal factors that contributed to the underlying false convictions are perjury or false accusation (51%), mistaken eyewitness identification (43%) and official misconduct (42%) – followed by false or misleading forensic evidence (24%) and false confession (16%).
The frequencies of these causal factors vary greatly from one type of crime to another. See Table 13.·Homicide exonerations: The leading contributing cause is perjury or false accusation (66%) – mostly deliberate misidentifications (44%).n Homicide case also have a high rate of official misconduct (56%). Homicide exonerations include 76% of all false confessions in the data.
Some exonerees were falsely implicated by a co-defendant who confessed. Including such cases, the convictions in 39% of homicide exonerations were caused in part by false confessions.
Juvenile and mentally disabled exonerees were, respectively, five times and nine times more likely to falsely confess than adult exonerees without known mental disabilities.
Sexual assault exonerations are overwhelmingly cases with mistaken eyewitness identifications (80%).
53% of all sexual assault exonerations with mistaken eyewitness identifications involved black men who were accused of raping white women. This huge racial disproportion (about 10 to 1) is probably caused primarily by the difficulty of cross-racial eyewitness identification.
Many sexual assault cases also include bad forensic evidence (37%).
Child sex abuse exonerations, by contrast, primarily involve fabricated crimes that never occurred at all (74%).
Robbery exonerations (like adult rape exonerations) are overwhelmingly cases with mistaken eyewitness identifications (81%).
The small number of drug crime exonerations we have found (25) include a high rate of deliberate misidentifications (48%).
Most individual no-crime exonerations are sexual assault cases in which the complaining witnesses fabricated crimes
Most fabricated crime exonerations are child sex abuse cases (70).
Two-thirds of the child sex abuse exonerations are child sex abuse hysteria convictions from the 1980s and early 1990s.·
Group Exonerations
By far the largest concentrations of no-crime cases are group exonerations: At least 1,170 defendants were exonerated in the aftermath of the discovery of 13 major scandals around the country in which police officers fabricated crimes, usually by planting drugs or guns on innocent defendants. We are confident that there are others that we have not yet identified.
Overall Frequency of False Convictions and Exonerations.
There is no way to estimate the overall number of false convictions from these reported exonerations, but it is clear that there are many more false convictions than exonerations.
The exonerations that we know about are: Overwhelmingly rape and murder cases in which defendants went to trial rather than plead guilty and received very severe punishments, especially death sentences.
They are also: Concentrated in several states and a small number of counties; disproportionately likely among the small fraction of criminal cases in which DNA evidence can prove guilt or innocence, and often the result of unpredictable and improbable lucky breaks.
Obviously there are many more false convictions among cases that don’t fit that description, and that didn’t end in exoneration: lesser crimes than rape or murder; defendants who pled guilty and received comparatively mild punishments; cases in states and counties with few exonerations or none; cases without DNA evidence; defendants who were just unlucky.
According to The Texas Tribune – a non-profit public service newsgathering and reporting organization -- The Registry lists 891 exonerations in the United States since 1989. It is thought to be the largest database of exonerations ever compiled.
Of the 873 who are covered in the report, 93 percent are men. Half are African-Americans. Thirty-seven percent were exonerated due to DNA evidence.
Juvenile and mentally disabled individuals who were freed were, respectively, five and nine time more likely to falsely confess, sometimes under duress, than other groups.
Most exoneration cases involve rape and murder, including 12 percent in death penalty cases. That last statistic implicitly raises the possibility that innocent men may be awaiting execution on death rows across America. Some may even have been wrongfully executed.
"The most important thing we know about false convictions is that they happen and on a regular basis," University of Michigan law professors Samuel Gross and Michael Schaffer, co-authors of the study, said in the report.
The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome.
The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.
In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.
Since 2000, there has been an average of one exoneration per week in the United States. But those who languish behind bars have spent more than 10,000 collective years in prison for crimes they did not commit, an average of more than 11 years per person.
The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might
prevent future wrongful convictions.
According to the report, the main causes of exoneration are perjury or false accusation (51 percent), followed by mistaken eyewitness identification (43 percent), official misconduct (42 percent), false or misleading forensic evidence (24 percent) and false confession (16 percent).
As of January 1, 2012, there were 3,189 people awaiting execution in the United States, which executed 43 people in 2011. Only four other countries-- China, Iran, Saudi Arabia and Iraq-- put more people to death, according to Amnesty International.
The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86
The report uses a conservative definition of exoneration. Only formal decisions by courts and executive officers count. It also highlights at least 1,170 defendants whose convictions were thrown out in group exonerations, usually resulting from police scandals, bringing the total number to over 2,000. Those freed in group exonerations, however, are not included in the National Registry.
Meanwhile, a coalition of such organizations as the Innocence Project has embarked on a first-of-its-kind series of visits to major U.S. cities to meet with lawyers, judges, law professors and other public interest figures to consider policy and practice options that would discourage prosecutorial misconduct. The group has thus far visited California, New York, Texas and Louisiana.
The coalition has found that courts, state bar associations, and other official organizations dedicated to protect defendants’ rights, take virtually no actions against prosecutors suspected of misconduct.
And, in arguably stronger evidence that the power of prosecutors in finally beginning to lead to misgivings among other lawyers, as well as judges, bar associations and law schools, Texas Supreme Court Chief Justice Wallace Jefferson has ordered a court of inquiry to investigate whether the former Williamson County District Attorney violated Texas law by refusing to turn over evidence that could have prevented Michael Morton from serving 25 years for a murder of his wife that DNA evidence has now proven he didn’t commit. The court of inquiry will begin in September.
Michael Morton walked out of a Williamson County courtroom today after his 1987 murder conviction was overturned because of new DNA evidence pointing to another man. 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.
It isn’t often that a story about prosecutorial misconduct ends up even as half-heartedly punitive as this:
Richard Convertino is a former federal prosecutor in Detroit, Michigan. Convertino was the lead Assistant U.S. Attorney in the "Detroit Sleeper Cell" prosecutions of Karim Koubriti and Abdel-Ilah Elmardoudi. However, the U.S. Department of Justice subsequently removed Convertino from his position and asked courts to dismiss those convictions, on the grounds that Convertino had failed to disclose evidence to which the defense was entitled. Convertino is still practicing law privately.
What should be our takeaway from all this?
There are thousands of prosecutors in the U.S. As we appear bent on stuffing every one of our federal, state and local lockups with inmates – mostly non-violent drug-users – the prosecutors’ caseloads will inevitably increase.
As they do, more and more mistakes – and misconduct – will surface. And more and more people will be fraudulently incarcerated.
Some important initiatives have already started to take hold. For example, since his election in 2006, Dallas County District Attorney Craig Watkins has made a very public commitment to reform. The ACLU of Texas says he deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past.
The current tour by the innocence coalition is likely to produce more ideas worth considering.
But the linchpin of real progress against over-zealous prosecutors has to be the Bar Associations of the 50 states. Our prosecutorial bar will be perceived as weak and uncaring until these peer groups are ready to use their power to aggressively weed out bad behavior.
Monday, July 09, 2012
Sunday, July 08, 2012
Focus on the Suez Canal
Steven Lee argues that transforming the Suez Canal to an integrated industry and services zone would deliver accelerated and more equitable growth for the Egyptian economy and help it become a G20 member.
Today Egypt sits at a crossroads in its long history. The people have spoken and established their right to practised democracy. However the pay-off to this freedom to elect a president and parliament means delivery to the people of a more equitable economic system, which creates more income with fairer distribution.
Even before 2004, the government’s socio-economic objective was to ensure the economy could absorb the annual 600,000 to 800,000 new job market. This is a vital objective; however it does not reflect a high-level vision for the country’s development or its economic future.
A new high-level vision is proposed that by 2050 Egypt become a member of the G20, the expanded “Rich club of nations”. Egypt’s population is projected at 120 million by 2050; however the size of Egypt’s economy by 2050 will largely depend upon the decisions taken by this government.
It will compete for membership with Nigeria and Vietnam; both shared with Egypt a GDP of of approximately 1 per cent of the USA’s in 2009. Nigeria’s and Vietnam’s average projected growth rates until 2050 are respectively, 7.9 per cent and 8.8 per cent. Egypt must surpass its economic growth average of 7 per cent which it recorded between 2006 and 2009.
To deliver a G20 vision of Egypt’s economic future, policy makers must be realistic about Egypt’s previous levels of international competitiveness. On the positive side tourism receipts, Suez Canal fees, overseas remittances and foreign direct investment (FDI) have all experienced unprecedented levels. But although manufacturing exports doubled from 2006 to 2010, imports grew at a much faster rate, too often displacing domestically manufactured products.
One important reason for this trade imbalance is that the international competitiveness of Egyptian enterprises is too often dependant on an export model of trade preferences and government transfer payments. This distorts the flow of investment.
Although international competitiveness policy reforms were targeted, such as those found in the World Bank’s, Doing Business survey, this was not prioritized in all decision making. Nor was there a transparent framework to coordinate macroeconomic reforms with individual economic sectors.
Today Egypt and its people are looking for reliable economic outcomes including more productive jobs, at improved wage levels. For this reason Egypt should move ahead promptly to establish an integrated industry and services zone able to deliver accelerated economic growth: the much spoken of Suez Economic Corridor. Located to the East and the West of the Suez Canal it would, incorporate existing ports of East and West Port Said in the North and North West of Suez to the Canal’s South, as well as agricultural and industrial zones and all physical infrastructure.
Whilst the Canal’s contribution to Egypt’s GDP recently peaked at four per cent in 2007/08 it has since fallen to 2.3 per cent of GDP in 2010/11, despite near record levels of transit fee income of US$ 5.1 billion. There are, however, many additional services that could be delivered to ships in transit, which could translate into significant new income for Egypt.
The Republic of Panama already has a long-term plan to leverage its Canal traffic to add substantially to overall economic growth from value-adding logistics. It has estimated that the contribution of logistics alone would add an average of 19 per cent to economic growth between 2014 and 2020.
It is proposed that a first step for the new President would be to establish the Suez Economic Corridor Commission. This agency would implement this platform for accelerated economic development, adding value to the Suez Canal’s maritime traffic with impact on the rest of Egypt through linkages and multiplier effects.
The Corridor’s regulatory environment would deliver streamlined regulations favourable to employment, investment and social development, avoiding Egypt’s historical bureaucracy and stifling regulations which have too often hindered investment. At the heart of the process will be a 20-year strategy to create value-adding employment and lift the Corridor’s economic contribution to national GDP to 10 per cent in ten years, targeting the creation of 1.5 million new jobs within the first 5-year phase.
It is also proposed that the Commission would coordinate strategies for the economic sectors of agriculture, finance, industry and services, with enterprises in Egypt. They would simultaneously create accountable new agencies for enterprise development, exports, innovation, investment, quality and standards, and skills Building.
This streamlined environment for employment and business would encourage investors to transform their enterprise model, delivering sustainable international competitiveness, dependent on domestic factors of production. The Corridor would prioritise the attraction of a skilled workforce able to deliver productivity increases matched by higher per capita levels of investment. Enterprises would replace imported inputs with investments that deliver connected supply chains. This would enable Egyptian manufacturers to be more competitive with higher levels of domestic value-added and faster delivery times, targeting both domestic and export markets.
The government must also play its role and ensure that state enterprises do not allow primary inputs to leave the country as raw materials, but are fed into domestic supply chains to manufacture finished products or components.
This tumultuous period in Egypt’s history is a unique opportunity to forge a new economic contract recognizing the people’s ambition for better incomes and improved social conditions. Targeting Egypt’s G20 membership by 2050 gives the country a long-term vision through which to guide economic and social decision making. Launching the Suez Economic Corridor Commission to oversee a unified economic zone to the East and West of the Suez Canal creates a zone for accelerated economic growth. Using the Canal’s existing operations supported by favourable employment and business regulations creates an environment favourable to high levels of investment. These policy reforms would deliver an acceleration of economic growth, impacting development throughout Egypt.
The writer is a marketing and economic strategy consultant who has worked extensively in Egypt for donor programmes.
Today Egypt sits at a crossroads in its long history. The people have spoken and established their right to practised democracy. However the pay-off to this freedom to elect a president and parliament means delivery to the people of a more equitable economic system, which creates more income with fairer distribution.
Even before 2004, the government’s socio-economic objective was to ensure the economy could absorb the annual 600,000 to 800,000 new job market. This is a vital objective; however it does not reflect a high-level vision for the country’s development or its economic future.
A new high-level vision is proposed that by 2050 Egypt become a member of the G20, the expanded “Rich club of nations”. Egypt’s population is projected at 120 million by 2050; however the size of Egypt’s economy by 2050 will largely depend upon the decisions taken by this government.
It will compete for membership with Nigeria and Vietnam; both shared with Egypt a GDP of of approximately 1 per cent of the USA’s in 2009. Nigeria’s and Vietnam’s average projected growth rates until 2050 are respectively, 7.9 per cent and 8.8 per cent. Egypt must surpass its economic growth average of 7 per cent which it recorded between 2006 and 2009.
To deliver a G20 vision of Egypt’s economic future, policy makers must be realistic about Egypt’s previous levels of international competitiveness. On the positive side tourism receipts, Suez Canal fees, overseas remittances and foreign direct investment (FDI) have all experienced unprecedented levels. But although manufacturing exports doubled from 2006 to 2010, imports grew at a much faster rate, too often displacing domestically manufactured products.
One important reason for this trade imbalance is that the international competitiveness of Egyptian enterprises is too often dependant on an export model of trade preferences and government transfer payments. This distorts the flow of investment.
Although international competitiveness policy reforms were targeted, such as those found in the World Bank’s, Doing Business survey, this was not prioritized in all decision making. Nor was there a transparent framework to coordinate macroeconomic reforms with individual economic sectors.
Today Egypt and its people are looking for reliable economic outcomes including more productive jobs, at improved wage levels. For this reason Egypt should move ahead promptly to establish an integrated industry and services zone able to deliver accelerated economic growth: the much spoken of Suez Economic Corridor. Located to the East and the West of the Suez Canal it would, incorporate existing ports of East and West Port Said in the North and North West of Suez to the Canal’s South, as well as agricultural and industrial zones and all physical infrastructure.
Whilst the Canal’s contribution to Egypt’s GDP recently peaked at four per cent in 2007/08 it has since fallen to 2.3 per cent of GDP in 2010/11, despite near record levels of transit fee income of US$ 5.1 billion. There are, however, many additional services that could be delivered to ships in transit, which could translate into significant new income for Egypt.
The Republic of Panama already has a long-term plan to leverage its Canal traffic to add substantially to overall economic growth from value-adding logistics. It has estimated that the contribution of logistics alone would add an average of 19 per cent to economic growth between 2014 and 2020.
It is proposed that a first step for the new President would be to establish the Suez Economic Corridor Commission. This agency would implement this platform for accelerated economic development, adding value to the Suez Canal’s maritime traffic with impact on the rest of Egypt through linkages and multiplier effects.
The Corridor’s regulatory environment would deliver streamlined regulations favourable to employment, investment and social development, avoiding Egypt’s historical bureaucracy and stifling regulations which have too often hindered investment. At the heart of the process will be a 20-year strategy to create value-adding employment and lift the Corridor’s economic contribution to national GDP to 10 per cent in ten years, targeting the creation of 1.5 million new jobs within the first 5-year phase.
It is also proposed that the Commission would coordinate strategies for the economic sectors of agriculture, finance, industry and services, with enterprises in Egypt. They would simultaneously create accountable new agencies for enterprise development, exports, innovation, investment, quality and standards, and skills Building.
This streamlined environment for employment and business would encourage investors to transform their enterprise model, delivering sustainable international competitiveness, dependent on domestic factors of production. The Corridor would prioritise the attraction of a skilled workforce able to deliver productivity increases matched by higher per capita levels of investment. Enterprises would replace imported inputs with investments that deliver connected supply chains. This would enable Egyptian manufacturers to be more competitive with higher levels of domestic value-added and faster delivery times, targeting both domestic and export markets.
The government must also play its role and ensure that state enterprises do not allow primary inputs to leave the country as raw materials, but are fed into domestic supply chains to manufacture finished products or components.
This tumultuous period in Egypt’s history is a unique opportunity to forge a new economic contract recognizing the people’s ambition for better incomes and improved social conditions. Targeting Egypt’s G20 membership by 2050 gives the country a long-term vision through which to guide economic and social decision making. Launching the Suez Economic Corridor Commission to oversee a unified economic zone to the East and West of the Suez Canal creates a zone for accelerated economic growth. Using the Canal’s existing operations supported by favourable employment and business regulations creates an environment favourable to high levels of investment. These policy reforms would deliver an acceleration of economic growth, impacting development throughout Egypt.
The writer is a marketing and economic strategy consultant who has worked extensively in Egypt for donor programmes.
Tuesday, July 03, 2012
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.
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.
Tuesday, June 26, 2012
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.
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.
Thursday, June 21, 2012
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
Wednesday, June 20, 2012
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.
Tuesday, June 12, 2012
‘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.”
Subscribe to:
Posts (Atom)
