By William Fisher
This blog post really ought to be written by Andy Borowitz, a very funny guy who gets off on finding incontrovertible evidence that Kafka is alive and well and hiding out in the wheel well of Air Force One.
Last week, if you were very, very quiet, you could hear Mischievous Franz chuckling at the notion that his elliptical Kafkaesque prose was being wrapped in the stale burrito of bureaucratic word-speak, ensuring that neither literati nor Joe SixPak would have the foggiest idea what was being said to whom by whom about what and for what reason.
Do all these words have a point?
Yes, they do. They’re about the government’s No-Fly-List. Here’s what the ACLU had to say:
First, the good news. Last week, the Ninth Circuit Court of Appeals unanimously ruled that the ACLU’s lawsuit challenging the U.S. government’s secretive No Fly List should go forward. Here’s part of the ACLU’s press release:
“This decision is a true victory for our clients and all Americans,” said Nusrat Choudhury, Staff Attorney with the ACLU National Security Project. So now comes the not-so-good news.
He explained: “More than two years ago, 15 U.S. citizens and permanent residents, including four military veterans, were denied boarding on planes. None of them know why this happened. And no government authority has ever given them an explanation or a fair chance to clear their names.”
At that time, Choudhury said, “the ACLU filed a lawsuit on their behalf. It challenged both the placement of these Americans on the No Fly List and the government’s failure to afford them a fair redress process after depriving them of their right to travel. We sued the logical government agencies: the FBI and its subagency, the Terrorist Screening Center, which creates and controls the No Fly List.” Please try to remember that.
But, in May 2011, Choudhury explains, “the district court in Portland dismissed the case for lack of jurisdiction. The Court ruled that we should have sued the Transportation Security Administration, (TSA) which administers the (woefully deficient) redress process for travelers denied boarding on planes.” Please try to remember that factoid also.
Not being easily intimidated, the ACLU appealed to the Ninth Circuit Court of Appeals.
At the hearing, Choudhury said he argued that “the district court decision was wrong because TSA doesn’t have the power to put people on, or take them off, the No Fly List—that’s the job of the FBI and TSC. I also argued that placing our clients on the No Fly List without providing them any opportunity to confront and rebut the “evidence” against them is unconstitutional.” I hope you’re remembering all this,
“As the ACLU previously blogged, the government attorney astonishingly refused to concede that federal courts even possess the authority to remove names from the No Fly List. Taken to its logical conclusion, the government’s position would mean that no court would be able to correct the wrongful placement of American citizens and permanent residents on the No Fly List even if these people got to court by jumping through all of the hoops that the government argued should be put in front of them.”
According to the government, “all a person could do is file a complaint with the existing TSA redress process, and simply hope that some government official would correct a mistake or change her mind. This position is untenable, especially because we know that government watch lists are bloated and include the names of innocent people.”
Last week’s Ninth Circuit decision “marked a first and important step towards putting a check on the government’s ability to blacklist its citizens without recourse.”
“The Ninth Circuit reversed the district court and permitted our lawsuit to go forward.” It affirmed our position that the government had “concede[d] that TSC decides both whether travelers are placed on the List and whether they stay on it,” and found that it would be “futile” to order TSA to remove the plaintiffs names or give them a chance to clear their names from the No Fly List.
“It also recognized that the government failed to provide a good answer to a question of tremendous importance to our clients and all Americans:
At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?”
“The Ninth Circuit reached the right answer: federal district courts can adjudicate citizens’ and permanent residents’ challenges to their placement on the No Fly List and their demand for a fair redress process.”
“This decision means that a court will finally consider our clients’ claims that a secret government watch list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.”
How does all this official two-ing and fro-ing affect our citizens?
Some can’t go abroad. Some are abroad and can’t come home. They miss important meetings where their veterans’ benefits will be discussed. They are separated from their families and their lawyers. They are incurring substantial legal and other costs for which they will not be reimbursed.
So maybe appealing to the idiosyncratic 9th Circuit Court of Appeals is just what the doctor ordered.
Until the Government invokes the State Secrets Privilege.
Wednesday, August 01, 2012
Tuesday, July 31, 2012
Protecting Legitimate Secrets or Concealing Embarrassment?
By William Fisher
Scott Horton, who is also a lawyer, is one of the most astute chroniclers of our world. He writes for Harper’s Magazine and believes that National Security Letters are “one of the creepier weapons in the arsenal of the national-security state.”
This reporter agrees, but finds another of our government ‘s legal games arguably more reprehensible. It’s known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”
Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.
First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence -- to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.
Like this case:
Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.
El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.
They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.
He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.
In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.
In May 2006, El-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.
What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.
Or this case?
Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.
Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.
The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty of mistaken identity. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.
The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”
The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.
Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.
Or perhaps this case:
In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
Shortly after the suit was filed, the government intervened and inappropriately asserted the "State Secrets Privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.
One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was awarded damages of one million pounds.
During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.
Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.
In October 1948, a B-29 Superfortress caught fire at 20,000 feet on takeoff in central Georgia. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed.
Three civilian engineers who had been testing electronic equipment onboard the plane were killed. No further information was provided to the engineers’ families. The government said its investigation of the crash was a military secret. The Air Force said disclosure might jeopardize national security by revealing the nature of their work.
The fight for information found its way to the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds.
Since then, Reynolds has been the standard illustrating the bond of trust between judges and other officers of the court. Despite Reynolds’ disastrous outcome, judges are still apparently ready to buy what prosecutors are selling. So far in the recent history of the State Secrets Privilege, not a single plaintiff has won a single case!
The conclusion of the Reynolds case is instructive.
In 1949, one of the widows of the dead pilots sued the government for negligence, in part to make up for the loss of her husband’s salary. The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document “without showing it to a judge,” in camera, or private, review.
And five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. Chief Justice Vinson wrote, “There was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”
Blocked from probing the cause of the crash, the widows – two others had joined the suit -- was advised to settle. Later a copy of the court’s opinion was downloaded, and there was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash.
The readers believed that the claim about the engineers’ top-secret electronics work was a fiction designed to mask the fatal series of errors and breached procedures. The text that had been blacked out all those years ago was not government secrets but the names of those who had been at fault.
As a candidate, Barack Obama opposed the Bush administration’s embrace of the State Secrets Privilege as a tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”
The Justice Department continues to claim fairness and even-handedness as it misuses the SSP. Says the DOJ: “The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege. The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”
Furthermore, it adds, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”
The Obama Administration has proposed a number of legislative changes in the SSP and the way it should be used. None of these has gotten very far in a Congress fearful of bucking any trend that ran counter to the perception of victory in the “war on terror.”
Jameel Jaffer of the ACLU has a rather different take. He said, “It's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."
Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told this reporter, “There are innocent individuals who have been swept up in U.S. government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged.”
He added: “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government’s invocation of the state secrets privilege,” he added. “As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”
But legal experts are beginning to discuss “a new departure” in the use of the SSP. It springs from the Obama Administration’s “kill list” – individuals, including US citizens, who have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government.
This incendiary ruling – made only by the Executive Branch of government, not yet tested by any court – has rocked the legal world.
The sparse wording of the ACLU announcement of this newest development suggests its shock value.
The ACLU said, “Today in Yemen, U.S. air strikes killed American citizen Anwar Al-Aulaqi. Al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented Al-Aulaqi's father in a lawsuit challenging the government's asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”
In response to the killing of Al-Aulaqi, ACLU Deputy Legal Director Jameel Jaffer said:
“The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”
Ben Wizner of the ACLU suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”
The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield -- including against US civilians who have not been charged with any crime.
This article originally appeared in the pages of Prism Magazine.
Scott Horton, who is also a lawyer, is one of the most astute chroniclers of our world. He writes for Harper’s Magazine and believes that National Security Letters are “one of the creepier weapons in the arsenal of the national-security state.”
This reporter agrees, but finds another of our government ‘s legal games arguably more reprehensible. It’s known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”
Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.
First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence -- to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.
Like this case:
Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.
El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.
They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.
He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.
In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.
In May 2006, El-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.
What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.
Or this case?
Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.
Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.
The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty of mistaken identity. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.
The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”
The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.
Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.
Or perhaps this case:
In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."
Shortly after the suit was filed, the government intervened and inappropriately asserted the "State Secrets Privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.
One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was awarded damages of one million pounds.
During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.
Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.
In October 1948, a B-29 Superfortress caught fire at 20,000 feet on takeoff in central Georgia. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed.
Three civilian engineers who had been testing electronic equipment onboard the plane were killed. No further information was provided to the engineers’ families. The government said its investigation of the crash was a military secret. The Air Force said disclosure might jeopardize national security by revealing the nature of their work.
The fight for information found its way to the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds.
Since then, Reynolds has been the standard illustrating the bond of trust between judges and other officers of the court. Despite Reynolds’ disastrous outcome, judges are still apparently ready to buy what prosecutors are selling. So far in the recent history of the State Secrets Privilege, not a single plaintiff has won a single case!
The conclusion of the Reynolds case is instructive.
In 1949, one of the widows of the dead pilots sued the government for negligence, in part to make up for the loss of her husband’s salary. The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document “without showing it to a judge,” in camera, or private, review.
And five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. Chief Justice Vinson wrote, “There was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”
Blocked from probing the cause of the crash, the widows – two others had joined the suit -- was advised to settle. Later a copy of the court’s opinion was downloaded, and there was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash.
The readers believed that the claim about the engineers’ top-secret electronics work was a fiction designed to mask the fatal series of errors and breached procedures. The text that had been blacked out all those years ago was not government secrets but the names of those who had been at fault.
As a candidate, Barack Obama opposed the Bush administration’s embrace of the State Secrets Privilege as a tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”
The Justice Department continues to claim fairness and even-handedness as it misuses the SSP. Says the DOJ: “The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege. The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”
Furthermore, it adds, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”
The Obama Administration has proposed a number of legislative changes in the SSP and the way it should be used. None of these has gotten very far in a Congress fearful of bucking any trend that ran counter to the perception of victory in the “war on terror.”
Jameel Jaffer of the ACLU has a rather different take. He said, “It's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."
Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told this reporter, “There are innocent individuals who have been swept up in U.S. government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged.”
He added: “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government’s invocation of the state secrets privilege,” he added. “As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”
But legal experts are beginning to discuss “a new departure” in the use of the SSP. It springs from the Obama Administration’s “kill list” – individuals, including US citizens, who have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government.
This incendiary ruling – made only by the Executive Branch of government, not yet tested by any court – has rocked the legal world.
The sparse wording of the ACLU announcement of this newest development suggests its shock value.
The ACLU said, “Today in Yemen, U.S. air strikes killed American citizen Anwar Al-Aulaqi. Al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented Al-Aulaqi's father in a lawsuit challenging the government's asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”
In response to the killing of Al-Aulaqi, ACLU Deputy Legal Director Jameel Jaffer said:
“The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”
Ben Wizner of the ACLU suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”
The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield -- including against US civilians who have not been charged with any crime.
This article originally appeared in the pages of Prism Magazine.
Saturday, July 28, 2012
Here's an email I received from Sam Smith, one of my favorite journalist-watchers. It needs to be read and understood by any one who picks up a laptop or a quill pen to voice an opinion or offer constructive public advice to friends and colleagues. If more folks listened to Sam, we'd have more reporters and fewer stenographers.
Personal to editors
You did build that lie
Reporting a lie as fact is not being objective, it's just embedding you and your media in the lie. A lie is not a fact; a lie is a lie. And part of a journalist's job is to distinguish between lies and facts. Or used to be. Because today the media regularly reports lies as though they were just another fact.
Here's an example. I just googled the Obama phrase from the speech the Republicans are presenting so falsely: "You didn't build that." There were 208,000 hits in the past week. Then I googled a phrase that helps put Obama's comment in context - "If you were successful, somebody along the line gave you some help" - and there were only 9,900 hits.
Why the difference? Because the media overwhelmingly reported the GOP lie and not the actual context.
Any media that did so should put Obama's actual statement on the page or in the same slot as it reported the lie and, yes, should have said "build those" instead of "build that." To save you some time, here is what Obama really said:
"There are a lot of wealthy, successful Americans who agree with me -- because they want to give something back. They know they didn’t -- look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something -- there are a whole bunch of hardworking people out there.
"If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.
"The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.
"So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together."
Personal to editors
You did build that lie
Reporting a lie as fact is not being objective, it's just embedding you and your media in the lie. A lie is not a fact; a lie is a lie. And part of a journalist's job is to distinguish between lies and facts. Or used to be. Because today the media regularly reports lies as though they were just another fact.
Here's an example. I just googled the Obama phrase from the speech the Republicans are presenting so falsely: "You didn't build that." There were 208,000 hits in the past week. Then I googled a phrase that helps put Obama's comment in context - "If you were successful, somebody along the line gave you some help" - and there were only 9,900 hits.
Why the difference? Because the media overwhelmingly reported the GOP lie and not the actual context.
Any media that did so should put Obama's actual statement on the page or in the same slot as it reported the lie and, yes, should have said "build those" instead of "build that." To save you some time, here is what Obama really said:
"There are a lot of wealthy, successful Americans who agree with me -- because they want to give something back. They know they didn’t -- look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something -- there are a whole bunch of hardworking people out there.
"If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.
"The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.
"So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together."
Thursday, July 26, 2012
The FBI’s Secret Weapon
By William Fisher
On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.
Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.
These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.
The law – actually an old law greatly expanded -- had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”
Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.
Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.
The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.
The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.
On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stamford and Oxford. Here’s what he told Prism:
“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”
And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties -- provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.
In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “
One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules.”
The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows.
Manhattan native Nicholas Merrill ran an Internet start-up named Calyx. He was the recipient of an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.”
The FBI withdrew its NSL to Merrill in 2006, apparently after Merrill made it clear he was not going down without a fight.
Ellen Nakashima has profiled Merrill in a piece in the Washington Post. Here’s her lede:
“For six years, Nicholas Merrill could not tell even his fiancée, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority.”
“What led Merrill to mount a challenge against the use of NSLs?”
“Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill.
“He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human rights and other nonprofit groups, would be investigated for terrorism or espionage.”
“It’s a perfect example of how the government can use its broad powers to silence people,” Merrill told The New York Times. Until August, he was forbidden to acknowledge the existence of a 2004 letter that the company he founded, the Calyx Internet Access Corporation, received from the F.B.I.”
According to the ACLU, Merrill is now free to speak about the request, but he is still barred from discussing what information he had been asked to provide. As a result, he said, before he gives a talk he consults a six-page guide prepared by his ACLU lawyers to be sure that he complies with the order to avoid risking a punishment of five years in prison.
The government cites national security as the reason the contents of the letters — even their existence — are kept secret. The FBI says it is trying to prevent plots as they are being hatched.
Today there appears to be general agreement that it has become easier to challenge the letters’ requests as well as their secrecy. At the moment, there are no new challenges in the court system, the government and the ACLU say.
The New York Times reports that, to one of Merrill’s ACLU lawyers, Jameel Jaffer, the smooth operation of the system is a sign that it is not working. The privacy rights at stake are not those of the companies who hold the information, Jaffer said, but “about people whose records are held.” And those people should be told, he said.
“People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. “Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible.”
And life for the NSL appears to be heating up elsewhere as well. According to the Electronic Frontier Foundation (EFF) , the U.S. government with assistance from major telecommunications carriers including AT&T has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.
The EFF web site writes that news reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.
The web site reports that EFF is fighting these illegal activities on multiple fronts. In Hepting v. AT&T EFF filed the first case against a telecom for violating its customers' privacy. In addition EFF is representing victims of the illegal surveillance program in Jewel v. NSA a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.
At the end of the day, one would have to assess NSLs as quirky – yet highly dangerous law. It’s quirky because it seems to oblige those who don’t like headlines like “Here’s Some News The Government Doesn’t Want You to Know.”
It’s quirky because it seems to disappear from the headlines for long periods for everyone save those who aspire to Ph. D’s in NSLs, and then out of nowhere comes rushing back to make big news. In reality, it simply keeps stepping smartly along, avoiding major collisions and remaining largely invisible to the public and the press.
“The Press” would be a hefty segment of Washington DC journalists, those who are often dubbed “the stenographers” – those corporate scriveners who each day trade substance for access.
We shouldn’t be surprised that some Senators say the abuses in the Patriot Act would ‘stun’ and ‘anger’ the US public if revealed. We should be surprised that there aren’t’ a lot more lawmakers – and their constituents -- of both parties sounding ‘stunned’ and ‘angered’ that they slept while their liberties became bad dreams.
This article originallly appeared on the pages of Prism Magazine
On every single day of every single calendar year, an average of 137 men and women in the US have been receiving letters from the government that can only be seen as either tragic or hilarious.
Experience with these missives since their inception in 1978 strongly suggests that hilarious is not winning first place.
These are not “get out the vote” letters from candidates. They don’t contain news of the campaigns’ latest sex scandals. They aren’t for raising funds. If they’re raising anything it’s blood pressure and hackles.
And they’ve been having that effect for more than a decade. It was following the terrorist attacks of 9/11 that a bleary-eyed and clearly fearful Congress convened to pass the USA Patriot Act – a potpourri of existing and new laws designed to prevent the Jihadis from annihilating America.
The law – actually an old law greatly expanded -- had been printed only the night before the vote. Most members of Congress had time only to skim it, if that. The vote in the Senate was 99-1. Only Senator Russ Feingold, Democrat from Wisconsin, had the guts to vote “no.”
Attorney General John Ashcroft dodged a heart attack and President George W. Bush quickly demonstrated his penmanship.
Now, one of the provisions in the new law was known as the National Security Letter (NSL). NSLs are, effectively, administrative subpoenas. They are extensively used by the FBI – it’s estimated that some 50,000 NSLs are issued annually.
The letters order specific entities or organizations to turn over various records and data pertaining to individuals, usually members or customers. No probable cause or judicial oversight is required.
The original versions of the law also contained an order of silence that prohibits the recipient of the letter from disclosing that the letter was ever issued. Disclosing it to anybody – lawyer, wife, doctor, clergy, and so forth, under penalty of criminal prosecution.
Constitutional? Well, on the face of it, as the lawyers like to say, it would seem deeply flawed at a number of levels. Violation of the Fourth Amendment against unreasonable searches and seizures is but only of them. Another is the “gag order,” which strips away the Constitutional first amendment guarantee of freedom of speech. Only the courts can impose such a penalty, and judges use it sparingly and for short periods of time only. The gag order has been ruled unconstitutional.
On the Search and Seizure issue, listen to Chip Pitts, former head of Amnesty and currently a lecturer in law at Stamford and Oxford. Here’s what he told Prism:
“National Security Letters violate Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits).”
And he adds: “The evidence is overwhelming that other sections of the Patriot Act also trample on civil liberties -- provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target); section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret datamining program some Senators say would ‘stun and ‘anger’ the US public if revealed); section 213 (allowing sneak and peek” secret black bag job searches of homes); and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).”
The New York Times points out that the 2001 Act did not create the NSL authority. However, it lowered the standard. “Before passage of the 2001 Act, the government had to have specific and articulable facts demonstrating that the information sought pertained to a foreign power or an agent of a foreign power. The 2001 Act provides that the FBI may use NSLs to obtain information from a ‘wire or electronic communication service provider’ that is merely ‘relevant to an investigation to protect against international terrorism or clandestine intelligence activities’.
In “Tales from Stasiland: The letter that makes you disappear,” Scott Horton writes, “
One of the creepier weapons in the arsenal of the national-security state is the ‘national-security letter’ or NSL. It’s no ordinary letter, and it travels postage-free, but at enormous expense to the taxpayers. The FBI issues roughly 50,000 of them a year, and the Justice Department’s own internal review in 2007 concluded that many of them were issued abusively, skirting the law and internal rules.”
The Constitutional lawyer and columnist for Harpers Magazine goes on: “The idea is simple: the device is something like a subpoena, though it doesn’t require approval of a judge to issue. Instead, the FBI requires the recipient to help it in an investigation targeting a third party. It might be dropped on a librarian, with a demand that she tell the FBI every book that a certain subscriber checked out, every magazine he perused, and every time he accessed the Internet using a computer at the library. Or it might go to an Internet service provider, requiring information about every website viewed by a certain customer.”
Now as a result of a partial settlement in one of several cases in which the FBI’s use of NSLs is being successfully challenged, one of the recipients has been allowed to emerge from the shadows.
Manhattan native Nicholas Merrill ran an Internet start-up named Calyx. He was the recipient of an NSL demanding that he “provide 16 categories of ‘electronic communication transactional records,’ including e-mail address, account number and billing information.”
The FBI withdrew its NSL to Merrill in 2006, apparently after Merrill made it clear he was not going down without a fight.
Ellen Nakashima has profiled Merrill in a piece in the Washington Post. Here’s her lede:
“For six years, Nicholas Merrill could not tell even his fiancée, his closest friends or his mother that he is “John Doe” — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. Friends would mention the case when it was in the news and the normally outspoken Merrill would change the subject. He would turn up at the federal courthouse to hear the arguments, and in an out-of-body moment he would realize that no one knew he was the plaintiff challenging the FBI’s authority.”
“What led Merrill to mount a challenge against the use of NSLs?”
“Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” said Merrill.
“He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures. The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human rights and other nonprofit groups, would be investigated for terrorism or espionage.”
“It’s a perfect example of how the government can use its broad powers to silence people,” Merrill told The New York Times. Until August, he was forbidden to acknowledge the existence of a 2004 letter that the company he founded, the Calyx Internet Access Corporation, received from the F.B.I.”
According to the ACLU, Merrill is now free to speak about the request, but he is still barred from discussing what information he had been asked to provide. As a result, he said, before he gives a talk he consults a six-page guide prepared by his ACLU lawyers to be sure that he complies with the order to avoid risking a punishment of five years in prison.
The government cites national security as the reason the contents of the letters — even their existence — are kept secret. The FBI says it is trying to prevent plots as they are being hatched.
Today there appears to be general agreement that it has become easier to challenge the letters’ requests as well as their secrecy. At the moment, there are no new challenges in the court system, the government and the ACLU say.
The New York Times reports that, to one of Merrill’s ACLU lawyers, Jameel Jaffer, the smooth operation of the system is a sign that it is not working. The privacy rights at stake are not those of the companies who hold the information, Jaffer said, but “about people whose records are held.” And those people should be told, he said.
“People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. “Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible.”
And life for the NSL appears to be heating up elsewhere as well. According to the Electronic Frontier Foundation (EFF) , the U.S. government with assistance from major telecommunications carriers including AT&T has engaged in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.
The EFF web site writes that news reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports plus a USA Today story in May 2006 and the statements of several members of Congress revealed that the NSA is also receiving wholesale copies of their telephone and other communications records. All of these surveillance activities are in violation of the privacy safeguards established by Congress and the U.S. Constitution.
The web site reports that EFF is fighting these illegal activities on multiple fronts. In Hepting v. AT&T EFF filed the first case against a telecom for violating its customers' privacy. In addition EFF is representing victims of the illegal surveillance program in Jewel v. NSA a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.
At the end of the day, one would have to assess NSLs as quirky – yet highly dangerous law. It’s quirky because it seems to oblige those who don’t like headlines like “Here’s Some News The Government Doesn’t Want You to Know.”
It’s quirky because it seems to disappear from the headlines for long periods for everyone save those who aspire to Ph. D’s in NSLs, and then out of nowhere comes rushing back to make big news. In reality, it simply keeps stepping smartly along, avoiding major collisions and remaining largely invisible to the public and the press.
“The Press” would be a hefty segment of Washington DC journalists, those who are often dubbed “the stenographers” – those corporate scriveners who each day trade substance for access.
We shouldn’t be surprised that some Senators say the abuses in the Patriot Act would ‘stun’ and ‘anger’ the US public if revealed. We should be surprised that there aren’t’ a lot more lawmakers – and their constituents -- of both parties sounding ‘stunned’ and ‘angered’ that they slept while their liberties became bad dreams.
This article originallly appeared on the pages of Prism Magazine
Monday, July 23, 2012
Crazy While Locked Up!
By William Fisher
Is it just part of the 99-1 percent formulation of post-compassion capitalism that people suffering from mental illnesses commit crimes and end up in prison are simply consigned to the landfills of decomposing humanity – and become forgotten and invisible?
Well, Adam Smith, generally thought to be the “father” of Capitalism, never subscribed to that construct. In an era when safety nets were for sissies [1723-1790] Smith saw an urgent need to help the least fortunate of our citizens. He dubbed it – and many other characteristics of capitalism – The Invisible Hand.
Here’s what Smith wrote in his “Theory of Moral Sentiments”:
“Though our brother is upon the rack, as long as we ourselves are at ease, our senses will never inform us of what he suffers. They never did and never can carry us beyond our own persons, and it is by the imagination only that we form any conception of what are his sensations...His agonies, when they are thus brought home to ourselves, when we have this adopted and made them our own, begin at last to affect us, and we then tremble and shudder at the thought of what he feels.”
But last week the Invisible Hand wasn’t working for Warren Hill or Yokamon Hearn. Both were mentally retarded. Both were executed. Despite a Supreme Court decision that the death penalty would violate the Eighth Amendment against cruel and unusual punishment.
In Georgia, the State Board of Pardons and Parole denied Hill’s request to commute his death sentence and on the same day the US Supreme Court turned down his request for a review. Previously a trial judge had ruled that Hill was indeed mentally retarded. But the Georgia Supreme Court later said Hill failed to prove his intellectual disability “beyond a reasonable doubt.” Legal experts have pointed out that this bar is so high that virtually no mentally ill person could scale it. So Georgia turned justice on its head: it is almost always the State, and not the Defense, that has to prove an inmate’s deficiency.
While in prison between the age of 28 and 33, Hill tested at a grade level of approximately 6-7, and had an IQ within the range of mental retardation.
Texas death row inmate Yokamon Hearn, 33, was executed the same week in Huntsville for the 1998 carjacking and murder of a Dallas-area stockbroker.
If you trip and break a leg, you don’t go to the supermarket to get it fixed. You go to a hospital. If you’re suffering from a mental illness, you don’t go to the county jail to make you better. You go to a mental illness hospital. But where? For the past twenty years or so, a large and growing population of mentally ill men and women have been discovering that they have virtually no place to go and that their future is homelessness followed by jail. Thousands are serving long sentences for relatively minor infractions.
Human Rights Watch (HRW) has produced several landmark reports since 2000 on mental illness in prison. They report that some of the inmates commit serious crimes. Others commit non-violent or “victimless” crimes. Others simply “act out” to get themselves arrested. They can then go through all the due process steps afforded to defendants with no illnesses – except that the nature of their illnesses often prevents them from being able to exercise those rights.
The HRW Reports go on: Sometimes they have intelligence deficits and can’t explain themselves. Sometimes they lack judgmental skills – they don’t know how to make a plea bargain for a lighter sentence or they choose an inexperienced lawyer. Or sometimes, they’re not taking their meds and they are at the dangerous end of their spectrum of peace vs. rage.
The grandson of a friend was convicted of murder in upstate New York. He had been diagnosed several times with schizophrenia and was on specialized psychotic drugs. Of course he wasn’t allowed to bring these drugs into the jail – which was a county jail, not a prison – and so he was “off his meds.” And he was off them for weeks, until a supply was ordered. In fact, this defendant was obliged to go through his entire trial without medication. When he finally saw a psychiatrist, it was on a TV monitor. There was no psychiatrist able to be physically in the jail.
So here is a young schizophrenic, looking forward to spending the rest of his life in a jail rather than a mental hospital, arriving at what will be his new home for the rest of his life and finding no meds, no doctor, no nurse, no nothing.
Then there’s the “supermax” issue. According to the HRW Report, when a mentally ill inmate of a supermax breaks a rule, he/she is punished in the same way as someone from the general population. A news story about the soon-to-be-closed Illinois Tamms supermax profiled one prisoner with a well-documented history of paranoid schizophrenia who was held in solitary for nearly six years, mutilating himself and smearing feces.
Other Tamms prisoners reportedly cut themselves, eat their own flesh, attempt suicide, and engage in other behaviors consistent with suffering from serious and untreated or poorly treated mental illness.
The HRW Report says the psychological harm of supermaximum security confinement is exacerbated because mental health professionals are not permitted to provide a full range of mental health treatment services to the prisoners. Mental health services are typically limited to psychotropic medication, a health care clinician stopping at the cell front to ask how the prisoner is doing (that is, "mental health rounds"), and occasional meetings in private with a clinician.
HRW adds: Individual therapy, group therapy, structured educational, recreational, or life-skill enhancing activities, and other therapeutic interventions are usually not available because of insufficient resources and clashes with prison rules-for example, insufficient numbers of custodial staff to take prisoners to and from their cells to private meetings with clinicians, and rules requiring prisoners to remain in their cells and prohibiting contact with other prisoners.
As Duncan Campbell of The Guardian wrote in the Los Angeles Times, “Prisons were never designed as facilities for the mentally ill, yet that is one of their primary roles today. Many of the men and women who cannot get mental health treatment in the community are swept into the criminal justice system after they commit a crime.”
In fact, they commit crimes specifically to get swept back into the system. For example, they act out, get themselves arrested, and know at least that they’ll have a meal and a roof over their heads for a day or two -- or longer.
Twin Towers jail in central Los Angeles is known by the Los Angeles county sheriff's department as the biggest known jail in the world. In 2003 there were more than 2,000 mentally ill prisoners, recognizable by yellow shirts and the letter M on their name tags, make up almost half its intended occupants.
There are multiple reasons. “De-institutionalization,” the emptying of state mental hospitals, has been one of the most well-meaning but poorly planned social changes ever carried out in the United States. According to a 2010 study by the Treatment Advocacy Center and the National Sheriffs Association, it was a product of the overcrowding and deterioration of hospitals; new medications that significantly improved the symptoms of about half of patients; and a failure to understand that many of the sickest patients were not able to make informed decisions about their own need for medication.
Ronald Reagan, as governor of California, is often blamed for the failures of this policy, but the emptying of the state’s mental hospitals began in the mid-1950s under Republican governor Goodwin Knight and continued in the 1960s under Democratic governor Edmund “Pat” Brown. When Reagan took office as governor, the hospitals had already been half-emptied. Reagan distinguished himself, however, by vowing to close the hospitals completely.
As this failing social policy was mincing its way across the nation, next to nothing was being done to prepare our prisons for the new intake of now dispossessed mentally ill patients. Similar patterns began to emerge cross country.
And there was at least one other major factor at play. A blockbuster factor. It is that our prison population was growing exponentially, largely due to the so-called “war on drugs.” Law enforcement went on a drug-bust binge, arresting and incarcerating citizens who had a single marijuana joint in a pocket. Along with that Draconian regimen came Mandatory Minimum Sentences, which virtually removed from judges the discretion to decide each case on its merits (many of the mandatory minimums were later changed to non-mandatory guidelines).
Scholars seem never to tire of arguing about whether Americans simply love to lock people up or not. But follow the feet during this period.
Federal statistics from 2006 reveal that the number of mentally ill inmates in U.S. prisons and jails quadrupled since 2000, according to Human Rights Watch. More than half of all prison and state inmates reported mental health problems, including symptoms of major depression, mania and psychotic disorders, according to a federal Bureau of Justice Statistics (BJS) report, “Mental Health Problems of Prison and Jail Inmates.”
In 1998, the BJS reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. HRW reports that the rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).
Women prisoners have an even higher rate of mental health problems than men: almost three quarters (73 percent) of all women in state prison have mental health problems, compared to 55 percent of men, according to the BJS.
“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program and co-author of the 2003 report, “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.” “Prisons are woefully ill-equipped for their current role as the nation’s primary mental health facilities,” she said.
According to HRW, deficient mental health services in prisons and jails leave prisoners under-treated or not treated at all. Across the country, prisoners with mental health problems face a shortage of qualified staff, lack of facilities and prison rules that interfere with treatment.
When Charles E, Samuels Jr., the Director of the Bureau of Prisons – part of the Department of Justice – testified to a Senate Committee earlier this month, he could not tell lawmakers how many mentally ill patients were locked up in Federal prisons.
But HRW states that the Bureau of Justice Statistics – also part of the DOJ – reports that 56 percent of state prisoners and 45 percent of federal prisoners have symptoms or a recent history of mental health problems. Prisoners have rates of mental illness- -including such serious disorders as schizophrenia, bipolar disorder, and major depression- - that are two to four times higher than members of the general public.
Studies and clinical experience consistently indicate that 8 to 19 percent of prisoners have psychiatric disorders that result in significant functional disabilities, and another 15 to 20 percent will require some form of psychiatric intervention during their incarceration, HRW says.
The organization points out that mental health treatment can help some prisoners recover from their illness and for many others it can alleviate its painful symptoms, prevent deterioration, and protect them from suicide. It can enhance independent functioning and encourage the development of more effective internal controls.
But HRW finds that prisons are ill equipped to respond appropriately to the needs of prisoners with mental illness. Prison mental health services are all too frequently woefully deficient, crippled by understaffing, impossibly large caseloads, insufficient facilities, and limited programs. Many seriously ill prisoners receive little or no meaningful treatment.
Gains in mental health staffing, programs, and physical resources that were made in recent years have all too frequently since been swamped by the tsunami of prisoners with serious mental health needs, says HRW.
In Dade County, Florida (Miami), Judge Steven Leifman did a survey in 2010 of the people who used his court most. The result was 94 people. All had schizophrenia. These 94 people were arrested 2,200 times and cost the State of Florida $13 million. They had only two places to go: the streets or jail. They chose jail, which meant they had to commit an offense and get arrested. Knowing the drill well, they acted out, were arrested and were on their way to jail.
HRW says a disproportionate number of the prisoners in solitary are mentally ill. Yet prison officials across the country have increasingly embraced long-term segregation to manage and/or to discipline prisoners who are perceived to be dangerous, but also those who are seen as difficult or disturbing.
In its 2009 report, Human Rights Watch and the United Nations outline a comprehensive package of recommendations to Congress – with virtually no hope at all that they will ever become law.
But this was a given from the get-go. Government agencies tend to
talk a lot; they form Task Forces. They create charts and graphs and Power Point Presentations for their bosses. They convene press conferences to announce what they’re going to do. The other agencies they’re dealing with pretty much do the same, if they do anything. Too often, by the time it’s past time to show some results, Congress people have changed, Congress has new priorities, we have a new president and a small army of political appointees who know nothing about the high visibility push to begin to solve the “crazy while locked up” problem. There is an ominous silence as lawmakers wait for the National Rifle Association to weigh in.
In the prison reform game, progress gets measured in thimbles.
Is it just part of the 99-1 percent formulation of post-compassion capitalism that people suffering from mental illnesses commit crimes and end up in prison are simply consigned to the landfills of decomposing humanity – and become forgotten and invisible?
Well, Adam Smith, generally thought to be the “father” of Capitalism, never subscribed to that construct. In an era when safety nets were for sissies [1723-1790] Smith saw an urgent need to help the least fortunate of our citizens. He dubbed it – and many other characteristics of capitalism – The Invisible Hand.
Here’s what Smith wrote in his “Theory of Moral Sentiments”:
“Though our brother is upon the rack, as long as we ourselves are at ease, our senses will never inform us of what he suffers. They never did and never can carry us beyond our own persons, and it is by the imagination only that we form any conception of what are his sensations...His agonies, when they are thus brought home to ourselves, when we have this adopted and made them our own, begin at last to affect us, and we then tremble and shudder at the thought of what he feels.”
But last week the Invisible Hand wasn’t working for Warren Hill or Yokamon Hearn. Both were mentally retarded. Both were executed. Despite a Supreme Court decision that the death penalty would violate the Eighth Amendment against cruel and unusual punishment.
In Georgia, the State Board of Pardons and Parole denied Hill’s request to commute his death sentence and on the same day the US Supreme Court turned down his request for a review. Previously a trial judge had ruled that Hill was indeed mentally retarded. But the Georgia Supreme Court later said Hill failed to prove his intellectual disability “beyond a reasonable doubt.” Legal experts have pointed out that this bar is so high that virtually no mentally ill person could scale it. So Georgia turned justice on its head: it is almost always the State, and not the Defense, that has to prove an inmate’s deficiency.
While in prison between the age of 28 and 33, Hill tested at a grade level of approximately 6-7, and had an IQ within the range of mental retardation.
Texas death row inmate Yokamon Hearn, 33, was executed the same week in Huntsville for the 1998 carjacking and murder of a Dallas-area stockbroker.
If you trip and break a leg, you don’t go to the supermarket to get it fixed. You go to a hospital. If you’re suffering from a mental illness, you don’t go to the county jail to make you better. You go to a mental illness hospital. But where? For the past twenty years or so, a large and growing population of mentally ill men and women have been discovering that they have virtually no place to go and that their future is homelessness followed by jail. Thousands are serving long sentences for relatively minor infractions.
Human Rights Watch (HRW) has produced several landmark reports since 2000 on mental illness in prison. They report that some of the inmates commit serious crimes. Others commit non-violent or “victimless” crimes. Others simply “act out” to get themselves arrested. They can then go through all the due process steps afforded to defendants with no illnesses – except that the nature of their illnesses often prevents them from being able to exercise those rights.
The HRW Reports go on: Sometimes they have intelligence deficits and can’t explain themselves. Sometimes they lack judgmental skills – they don’t know how to make a plea bargain for a lighter sentence or they choose an inexperienced lawyer. Or sometimes, they’re not taking their meds and they are at the dangerous end of their spectrum of peace vs. rage.
The grandson of a friend was convicted of murder in upstate New York. He had been diagnosed several times with schizophrenia and was on specialized psychotic drugs. Of course he wasn’t allowed to bring these drugs into the jail – which was a county jail, not a prison – and so he was “off his meds.” And he was off them for weeks, until a supply was ordered. In fact, this defendant was obliged to go through his entire trial without medication. When he finally saw a psychiatrist, it was on a TV monitor. There was no psychiatrist able to be physically in the jail.
So here is a young schizophrenic, looking forward to spending the rest of his life in a jail rather than a mental hospital, arriving at what will be his new home for the rest of his life and finding no meds, no doctor, no nurse, no nothing.
Then there’s the “supermax” issue. According to the HRW Report, when a mentally ill inmate of a supermax breaks a rule, he/she is punished in the same way as someone from the general population. A news story about the soon-to-be-closed Illinois Tamms supermax profiled one prisoner with a well-documented history of paranoid schizophrenia who was held in solitary for nearly six years, mutilating himself and smearing feces.
Other Tamms prisoners reportedly cut themselves, eat their own flesh, attempt suicide, and engage in other behaviors consistent with suffering from serious and untreated or poorly treated mental illness.
The HRW Report says the psychological harm of supermaximum security confinement is exacerbated because mental health professionals are not permitted to provide a full range of mental health treatment services to the prisoners. Mental health services are typically limited to psychotropic medication, a health care clinician stopping at the cell front to ask how the prisoner is doing (that is, "mental health rounds"), and occasional meetings in private with a clinician.
HRW adds: Individual therapy, group therapy, structured educational, recreational, or life-skill enhancing activities, and other therapeutic interventions are usually not available because of insufficient resources and clashes with prison rules-for example, insufficient numbers of custodial staff to take prisoners to and from their cells to private meetings with clinicians, and rules requiring prisoners to remain in their cells and prohibiting contact with other prisoners.
As Duncan Campbell of The Guardian wrote in the Los Angeles Times, “Prisons were never designed as facilities for the mentally ill, yet that is one of their primary roles today. Many of the men and women who cannot get mental health treatment in the community are swept into the criminal justice system after they commit a crime.”
In fact, they commit crimes specifically to get swept back into the system. For example, they act out, get themselves arrested, and know at least that they’ll have a meal and a roof over their heads for a day or two -- or longer.
Twin Towers jail in central Los Angeles is known by the Los Angeles county sheriff's department as the biggest known jail in the world. In 2003 there were more than 2,000 mentally ill prisoners, recognizable by yellow shirts and the letter M on their name tags, make up almost half its intended occupants.
There are multiple reasons. “De-institutionalization,” the emptying of state mental hospitals, has been one of the most well-meaning but poorly planned social changes ever carried out in the United States. According to a 2010 study by the Treatment Advocacy Center and the National Sheriffs Association, it was a product of the overcrowding and deterioration of hospitals; new medications that significantly improved the symptoms of about half of patients; and a failure to understand that many of the sickest patients were not able to make informed decisions about their own need for medication.
Ronald Reagan, as governor of California, is often blamed for the failures of this policy, but the emptying of the state’s mental hospitals began in the mid-1950s under Republican governor Goodwin Knight and continued in the 1960s under Democratic governor Edmund “Pat” Brown. When Reagan took office as governor, the hospitals had already been half-emptied. Reagan distinguished himself, however, by vowing to close the hospitals completely.
As this failing social policy was mincing its way across the nation, next to nothing was being done to prepare our prisons for the new intake of now dispossessed mentally ill patients. Similar patterns began to emerge cross country.
And there was at least one other major factor at play. A blockbuster factor. It is that our prison population was growing exponentially, largely due to the so-called “war on drugs.” Law enforcement went on a drug-bust binge, arresting and incarcerating citizens who had a single marijuana joint in a pocket. Along with that Draconian regimen came Mandatory Minimum Sentences, which virtually removed from judges the discretion to decide each case on its merits (many of the mandatory minimums were later changed to non-mandatory guidelines).
Scholars seem never to tire of arguing about whether Americans simply love to lock people up or not. But follow the feet during this period.
Federal statistics from 2006 reveal that the number of mentally ill inmates in U.S. prisons and jails quadrupled since 2000, according to Human Rights Watch. More than half of all prison and state inmates reported mental health problems, including symptoms of major depression, mania and psychotic disorders, according to a federal Bureau of Justice Statistics (BJS) report, “Mental Health Problems of Prison and Jail Inmates.”
In 1998, the BJS reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. HRW reports that the rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).
Women prisoners have an even higher rate of mental health problems than men: almost three quarters (73 percent) of all women in state prison have mental health problems, compared to 55 percent of men, according to the BJS.
“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program and co-author of the 2003 report, “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.” “Prisons are woefully ill-equipped for their current role as the nation’s primary mental health facilities,” she said.
According to HRW, deficient mental health services in prisons and jails leave prisoners under-treated or not treated at all. Across the country, prisoners with mental health problems face a shortage of qualified staff, lack of facilities and prison rules that interfere with treatment.
When Charles E, Samuels Jr., the Director of the Bureau of Prisons – part of the Department of Justice – testified to a Senate Committee earlier this month, he could not tell lawmakers how many mentally ill patients were locked up in Federal prisons.
But HRW states that the Bureau of Justice Statistics – also part of the DOJ – reports that 56 percent of state prisoners and 45 percent of federal prisoners have symptoms or a recent history of mental health problems. Prisoners have rates of mental illness- -including such serious disorders as schizophrenia, bipolar disorder, and major depression- - that are two to four times higher than members of the general public.
Studies and clinical experience consistently indicate that 8 to 19 percent of prisoners have psychiatric disorders that result in significant functional disabilities, and another 15 to 20 percent will require some form of psychiatric intervention during their incarceration, HRW says.
The organization points out that mental health treatment can help some prisoners recover from their illness and for many others it can alleviate its painful symptoms, prevent deterioration, and protect them from suicide. It can enhance independent functioning and encourage the development of more effective internal controls.
But HRW finds that prisons are ill equipped to respond appropriately to the needs of prisoners with mental illness. Prison mental health services are all too frequently woefully deficient, crippled by understaffing, impossibly large caseloads, insufficient facilities, and limited programs. Many seriously ill prisoners receive little or no meaningful treatment.
Gains in mental health staffing, programs, and physical resources that were made in recent years have all too frequently since been swamped by the tsunami of prisoners with serious mental health needs, says HRW.
In Dade County, Florida (Miami), Judge Steven Leifman did a survey in 2010 of the people who used his court most. The result was 94 people. All had schizophrenia. These 94 people were arrested 2,200 times and cost the State of Florida $13 million. They had only two places to go: the streets or jail. They chose jail, which meant they had to commit an offense and get arrested. Knowing the drill well, they acted out, were arrested and were on their way to jail.
HRW says a disproportionate number of the prisoners in solitary are mentally ill. Yet prison officials across the country have increasingly embraced long-term segregation to manage and/or to discipline prisoners who are perceived to be dangerous, but also those who are seen as difficult or disturbing.
In its 2009 report, Human Rights Watch and the United Nations outline a comprehensive package of recommendations to Congress – with virtually no hope at all that they will ever become law.
But this was a given from the get-go. Government agencies tend to
talk a lot; they form Task Forces. They create charts and graphs and Power Point Presentations for their bosses. They convene press conferences to announce what they’re going to do. The other agencies they’re dealing with pretty much do the same, if they do anything. Too often, by the time it’s past time to show some results, Congress people have changed, Congress has new priorities, we have a new president and a small army of political appointees who know nothing about the high visibility push to begin to solve the “crazy while locked up” problem. There is an ominous silence as lawmakers wait for the National Rifle Association to weigh in.
In the prison reform game, progress gets measured in thimbles.
Saturday, July 21, 2012
Athan Theoharis, Emeritus Professor of History, Marquette University, has just published a new extended essay on surveillance policy and the lessons of the Cold War—"Expanded Power: The FBI, the NSA, and the Struggle between National Security and Civil Liberties in the Wake of 9/11" —documenting how the same policies and procedures adopted during the Cold War years were employed after 9/11 with similar adverse impacts on civil liberties and democratic procedures. Here is an abstract.
The full paper can be found here: http://www.nowandthenreader.com/expanded-power/
___________________________________________________________________________________
In the aftermath of 9/11, and in response to complaints about the nation’s intelligence gathering (which might have prevented the terrorist attack), the Bush administration granted expanded powers of surveillance to the Federal Bureau of Investigation and the National Security Agency. The aim was to enable these agencies to uncover terrorist plots before they could be executed. In short, the agencies were to become more pro-active in preventing criminal actions, rather than simply investigating them after the fact.
This expanded authority necessarily rekindled a perennial debate in American history: the proper balance between national security and civil liberties,between the government’s need to know and
its citizens’ right to basic freedoms of privacy and thought. In this provocative essay, the foremost historian of the FBI considers the record of the past to assess the results of the broadened powers of the
present. Surveying the experience of World War II and the cold war, and comparing them with present-day activities, Athan Theoharis concludes that Americans may feel marginally safer, but at a dangerous cost to their freedoms and to the tenor of our political dialogue. To read more:
http://www.nowandthenreader.com/expanded-power/
The full paper can be found here: http://www.nowandthenreader.com/expanded-power/
___________________________________________________________________________________
In the aftermath of 9/11, and in response to complaints about the nation’s intelligence gathering (which might have prevented the terrorist attack), the Bush administration granted expanded powers of surveillance to the Federal Bureau of Investigation and the National Security Agency. The aim was to enable these agencies to uncover terrorist plots before they could be executed. In short, the agencies were to become more pro-active in preventing criminal actions, rather than simply investigating them after the fact.
This expanded authority necessarily rekindled a perennial debate in American history: the proper balance between national security and civil liberties,between the government’s need to know and
its citizens’ right to basic freedoms of privacy and thought. In this provocative essay, the foremost historian of the FBI considers the record of the past to assess the results of the broadened powers of the
present. Surveying the experience of World War II and the cold war, and comparing them with present-day activities, Athan Theoharis concludes that Americans may feel marginally safer, but at a dangerous cost to their freedoms and to the tenor of our political dialogue. To read more:
http://www.nowandthenreader.com/expanded-power/
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