Allison Kilkenny: Unreported

The Law is Not a Fringe Issue

Posted in Barack Obama, Bush, law, politics, torture, war crimes by allisonkilkenny on April 30, 2009

abu-ghraib-torture-715244Barbara Herbert, a course director at Tufts University School of Medicine, made a short, but compelling plea in today’s New York Times. Herbert argued that the United States government should convene a truth and reconciliation commission, using the one in South Africa as a model, to investigate into possible crimes committed by the Bush administration. 

Such a commission would allow a nation to (a) find the truth of what happened from multiple perspectives, (b) develop an understanding of how it happened and (c) heal.

A commission isn’t some kind of partisan booby trap thrown together in a frenzied quest for retribution as Harry Reid suggested last week. The formation of a nonpartisan commission also wouldn’t  act as a nefarious tool to dismantle the foundation of The American Way (corrupting the sweet “mysteries” of life,) as Bush apologists like Peggy Noonan claim

A truth commission would use the law as a compass, and its only goal would be to restore order in America. As Herbert wrote, “We need a chance for secular redemption and healing.”

On Tuesday, Jeremy Scahill reported that Rep. John Conyers, chair of the House Judiciary Committee, and Rep. Jerrold Nadler wrote to Attorney General Eric Holder officially requesting  the appointment of an independent Special Prosecutor to “to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration.” In order to restore credibility to the Justice Department, Holder must adhere to the rule of law, and not partisan demands. He must investigate into possible crimes committed under the Bush administration.

The law is not a fringe issue. Progressives may be the ones demanding an investigative commission, but the issue at stake here is the law itself. That’s not a partisan issue. The law should be sacred to all Americans: Republicans and Democrats. And if Democrats are proven to have been complicit in torture, then they too must be punished according to the law. 

Otherwise, Americans will learn only one lesson: the law does not apply to our leaders. What a terrible lesson to teach young Americans.

A Little Torture

Posted in Barack Obama, law, politics, prison, torture, War on Drugs by allisonkilkenny on April 17, 2009

justice“There is no such thing as a little torture.” — Alfred M. McCoy, author of A Question of Torture

The Bush administration is really an impressive force of nature. Whenever I was absolutely certain that their dastardly deeds couldn’t possibly get any more nefarious, Dick Cheney shot a family friend in the face, or George W. Bush ordered the U.S. military to invade another country. When they finally left office, I assumed they couldn’t harm America’s reputation ever again.

I was wrong. The Justice Department finally made the infamous memos that sanctioned torture public this week. The details are horrific. Not only are barbaric measures like “walling” (slamming a person into a wall,) and stress positions deemed acceptable by legal experts, but also more inventive interrogation methods like placing live bugs in a confinement box (and telling the prisoner they’ll sting him). 

Politicians repeatedly regurgitate the fairy tale that America is a Nation of Laws. Except, the laws get broken all the time, and the archetypes of anarchy usually aren’t held accountable. Barack Obama has sought to reassure CIA operates, who participated in torture, that they can use the same defense Nazis could not use during Nuremberg. Namely, that they were just “following orders.”

This doesn’t bode well for justice enthusiasts, who hoped that maybe (just maybe) the Big Guys would be help accountable this time. That maybe John Yoo, Douglas Feith, Jay Bybee, Dick Cheney, David Addington, George W. Bush, Donald Rumsfeld, and William Haynes would have to stand before the American people and explain why they thought sanctioning torture was acceptable.

That maybe they would finally have to explain why a little torture was okay.

We are a nation of laws only if the people in charge get to benefit from the rulings. We are a nation of laws only up until Lynndie England, but justice stops short of Donald Rumsfeld. We are a nation of laws for thieves and crooks, but justice can’t touch Goldman Sachs CEOs. The hypocrisy is rampant. It infests every facet of the justice system, and has left us with a broken two-tier system of justice.

The debate over torture is frequently aimed at Guantanamo. However, the problem is also domestic, although the victims are still the unprivileged. While the United States is home to just five percent of the world’s population, it contains 25% of the world’s prisoners. More than one in 100 adults are in prison. Most of those prisoners aren’t homicidal sociopaths. They’re nonviolent drug offenders. America is the only western industrialized country to still use the death penalty, but apparently injecting someone will a chemical that paralyzes their organs doesn’t constitute torture, even though the Nazis used the same method. Those that live inside our prison-industrial complex experience a form of torture every day. Prisoners face the threat of rape and are more likely to contract H.I.V., hepatitis and tuberculosis. 

This kind of domestic torture is frequently overlooked because it’s the “right people” suffering. Bad guys. Bottom-tier justice types: poor people, immigrants, people of color. And after all, it’s only a little torture. Terrorists and criminals deserve whatever happens to them. Waterboarding doesn’t even count as torture! It’s just a light spritz in the face! (Of course, even Bush’s own legal team knew it was torture and expressed their concern in footnote form.)

This cartoonish, simplified scope of reality would be laughable had it not been the ideologies held by the Bush administration for eight years. Innocent people are accused of crimes all the time. That’s why our smart ancestors put in place that whole “justice system” in the first place. Ya’ know, that thing about being able to face one’s accusers and present evidence to defend one’s self.

If justice is to come to Guantanamo (and it should,) it must also come to the United State’s domestic prisons where draconian drug laws continue case overcrowding and strain stark resources, which then breeds inhumane conditions. If justice is to come to torture victims, it must mean than the archetypes of the torture memos will stand beside the CIA agents that carried out the orders.

The American two-tier justice system must end, and a good start would be for the Obama administration to recognize that a little torture is never okay, no matter who is doing it.

The Criminalization of Everyday Life

Posted in civil rights, law, police state by allisonkilkenny on March 24, 2009

City Limits, Robert Neuwirth

police_stateI spent 24 hours in the slammer the other day. My crime? Well, the police couldn’t tell me when they locked me up. The prosecutor and judge couldn’t either, when I was arraigned the following day. I found out for myself when I researched the matter a few days after being released: I had been cited for walking my dog off the leash – once, six years ago.

Welcome to the ugly underside of the zero-tolerance era, where insignificant rule violations get inflated into criminal infractions. Here’s how it worked with me: a gaggle of transit cops stopped me after they saw me walk between two subway cars on my way to work. This, they told me, was against the rules. They asked for ID and typed my name into a hand-held computer. Up came that old citation that I didn’t know about and they couldn’t tell me about. I was immediately handcuffed and brought to the precinct. There, I waited in a holding cell, then was fingerprinted (post-CSI memo: they now take the fingers, the thumbs, the palms, and the sides of both hands) and had the contents of my shoulder bag inventoried. I could hardly believe it: I was being arrested without ever having committed a crime.
Read more
(more…)

Bush Administration Memos Claimed Vast War Powers

Posted in Barack Obama, law, police state, politics by allisonkilkenny on March 3, 2009

International Herald Tribune

confidential-photo4The secret legal opinions issued by Bush administration lawyers after the Sept. 11, 2001, attacks included assertions that the president could use the nation’s military within the United States to combat people deemed as terrorists and to conduct raids without obtaining a search warrant.

That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency. The opinions showed a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, deal with detainees suspected of terrorism while rejecting input from Congress and conduct a warrantless eavesdropping program.

Some of the legal positions had previously become known from statements made by Bush administration officials in response to court challenges and congressional inquiries. But the opinions provided the clearest illustration to date of the broad definition of presidential power that was approved by government lawyers, including John Yoo and Jay Bybee, in the months following the Sept. 11 attacks.

In a memorandum dated Jan. 15, 2009, just before President George W. Bush left office, a top Justice Department official wrote that the earlier memorandums had not been relied on since 2003. But the official, Stephen Bradbury, who headed the Office of Legal Counsel, said it was important to acknowledge in writing “the doubtful nature of these propositions,” and he used the memo to formally repudiate the opinions.

Bradbury said that the earlier memorandums were the product of lawyers confronting “novel and complex questions in a time of great danger and under extraordinary time pressure.”

The opinion authorizing the military to operate on domestic territory was dated Oct. 23, 2001, and written by Yoo, at the time a deputy assistant attorney general, and Robert Delahunty, a special counsel. It was directed to Alberto Gonzales, then the White House counsel, who had asked whether Bush could use the military to combat terrorist activities inside the United States.

The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Yoo and Delahunty wrote to Gonzales. Any objections based on the prohibition against unreasonable searches in the Fourth Amendment to the Constitution would vanish, he said, because any privacy offense that comes with such a search would be less than any injury from deadly force.

Yoo and Delahunty also said in the Oct. 23 memorandum that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” They added that the “current campaign against terrorism may require even broader exercises of federal power domestically.”

Yoo said the Posse Comitatus Act, a statute first enacted in 1878 and since renewed, would also not present an obstacle to the use of the armed forces. The Posse Comitatus Act generally forbids the use of military forces in domestic law enforcement.

Yoo and Delahunty asserted that the act’s prohibition against use of the military was only for law enforcement functions and that using soldiers against terrorist suspects would be a national security function.

Yoo, a law professor at the University of California, Berkeley, is widely known as the principal author of a 2002 memorandum that critics said authorized torture. The memorandum, signed by Bybee, was repudiated in 2004.

The memorandum issued by Bradbury in January appears to have been the Bush lawyers’ last effort to reconcile their views with the wide-scale rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.

Walter Dellinger, a former head of the Office of Legal Counsel during the Clinton administration who was also a law professor at Duke University, said that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” He said it was important that it was now widely recognized that the earlier assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice and judicial precedent.”

Attorney General Eric Holder Jr. said Monday morning before the release of the documents: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.”

Holder said that the memorandums were being released in light of the legitimate and substantial public interest.

One of the opinions, issued in March 2002, suggests that Congress lacks any power to limit a president’s authority to transfer detainees to other countries. Other memorandums say that Congress has no authority to intervene in the president’s determination of the treatment of detainees, a proposition that has since been invalidated by the Supreme Court.

Bradbury’s memo repudiating these views said that it was “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants.”

Obama’s Efforts to Block a Judicial Ruling on Bush’s Illegal Eavesdropping

Posted in Barack Obama, law, politics by allisonkilkenny on February 28, 2009

Glenn Greenwald

wiretaps3(updated below)

The Obama DOJ’s embrace of Bush’s state secrets privilege in the Jeppesen(torture/rendition) case generated substantial outrage, and rightly so.  But it’s now safe to say that far worse is the Obama DOJ’s conduct in the Al-Haramaincase — the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush’s NSA warrantless eavesdropping program.  Here’s the first paragraph from the Wired report on Friday’s appellate ruling, which refused the Obama DOJ’s request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:

A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.

And here are the two paragraphs from the AP report:

The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. . . .

The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.

Let’s just pause for a moment to consider how remarkable those statements are.  One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President’s actions.  They would insist that “secrecy” prevented a judicial ruling even when the President’s actions were (a) already publicly disclosed in detail and (b) were blatantly criminal — as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized.  Secrecy claims of that sort — to block judicial review of the President’s conduct, i.e., to immunize the President from the rule of law — provoked endless howls of outrage from Bush critics.

Yet now, the Obama administration is doing exactly the same thing.  Hence, it is accurately deemed “a blow to the Obama administration” that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants.  Why is the Obama administration so vested in preventing that from happening, and — worse still — in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?

Obama defenders take note:   this is not a case where the Obama DOJ claims more time is needed to decide what to do, nor is it even a case where the Obama DOJ merely passively adopted the Bush DOJ’s already filed arguments.  Here, they have done much, much more than that.  Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding — emergency appealsrequests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court. 

During the controversy in the Jeppesen/rendition case, there were actually “defend-Obama-at-all-costs” advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush’s State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent.  But in the Al-Haramin case, the Obama DOJ has now lost — twice — in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims:

Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security. . . .

[H]ours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.

”The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.

Manifestly, the Obama DOJ has one goal and one goal only here:  to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal.  And they’re engaging in extraordinary efforts to ensure that occurs.

To explain why this behavior is so pernicious, so lawless and so dangerous, I’m going to turn the floor over to a long-time, eloquent critic of Bush’s secrecy theories — who just so happens also to be Obama’s soon-to-be-confirmedappointee for Chief of the Office of Legal Counsel, Dawn Johnsen.  In March of 2008 — less than a year ago — this is what she said about the Bush administration’s efforts to conceal its FISA-violating eavesdropping activities:

NYT? What’s Bush’s Excuse for Keeping Law Violations Secret?

But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?

I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret.Remember that much of what we know about the Bush administration’s violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don’t know the full extent of our government’s illegal surveillanceor illegal interrogations (and who knows what else) — despite Congress’s failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.

Yet here we have the Obama DOJ doing exactly this — not merely trying desperately to keep the Bush administration’s spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants.  As Obama’s hand-picked OLC chief put it:  “I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret.”

The details of this case (which I’ve recounted in full here) highlight even further how indefensible is the Obama DOJ’s conduct.  The Bush administration succeeded in blocking all other judicial challenges to its illegal NSA eavesdropping with the Kafkaesque argument that because (a) nobody knows on whom the Bush administration spied without warrants (precisely because eavesdropping without warrants ensures that the targets are concealed from everyone, including even a court) and (b) that information cannot be disclosed to anyone (including courts) because it’s a “State Secret,” no individual party has “standing” to sue because nobody can prove that they were actually subjected to the illegal eavesdropping (because it was done in the dark). 

But this case, from the start, was different.  As part of a criminal investigation against the Al-Haramain Islamic Foundation, an Oregon-based charity, the Bush DOJ accidentally turned over to the charity’s lawyers a documentshowing that the Bush NSA eavesdropped without warrants on conversations between the charity and its two lawyers, both U.S. citizens.  The charity and its lawyers then sued the Bush administration for illegally eavesdropping on their communications.  That document is what distinguished this case from all other NSA cases, because it enables the plaintiffs (the charity and its lawyers) to prove that they were subjected to Bush’s illegal spying program and they therefore have standing to sue. 

It is that document — which has been described publicly and which the plaintiffs’ lawyers have already seen — which the Obama DOJ is now desperately attempting to block the court from considering on the grounds that allowing the case to proceed will — somehow — harm America’s national security.  Everyone knows the Bush administration spied on Americans without warrants and in violation of the law.  Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on.  

Still, there’s the Obama administration — just like the Bush administration — claiming that we’ll all be slaughtered if a court rules on whether the President broke the law.  And, as Marcy Wheeler astutely notes, the lawbreaking here is particularly egregious (and certainly criminal) since some of the warrantless eavesdropping here appears to have occurred in March, 2004 — during the exact period when even the Bush DOJ expressly concluded that the NSA program was so illegal that it refused to certify its legality and top DOJ officials (including John Ashcroft) threatened to resign in protest of its continuation (here’s more from Marcy on some key details in this case, andfrom EFF as well).

Our nation’s most transparent administration in history won’t bother to explainwhy they’re doing any of this: “A Justice Department spokesman declined to comment.”  We’ll probably have to wait for one of them to gather up enough courage to anonymously whisper their alleged reasons into Marc Ambinder’s faithful ear.  In the meantime, while we wait for that, what is clear is that the Obama DOJ has undertaken exactly the same mission as the Bush DOJ for years so successfully carried out:  namely, ensuring that Presidents remain above the law by invoking patently absurd claims of secrecy to argue that our National Security cannot withstand judicial rulings on whether the President’s actions were, in fact, illegal.

* * * * * 

On a related note:  last week, I interviewed the ACLU’s Jonathan Hafetz about the Obama administration’s March 23 deadline to file a Supreme Court brief in the Al-Marri case, brought by the last person still being held on U.S. soil as an “enemy combatant.”  In 2003, Al-Marri (Hafetz’s client), who was in the U.S. legally on a student visa, was about to be tried on various criminal charges when, at the last minute, Bush declared him an “enemy combatant” and ordered him transferred to a military brig, where he has remained ever since with no charges and no trial.  In his case, the Fourth Circuit’s Court of Appeals last year largely upheld the power of the President to imprison legal residents (and even U.S. citizens) on U.S. soil in military prison with no criminal charges, and the U.S. Supreme Court had agreed to review that decision.

This week, the Obama DOJ filed criminal charges against Al-Marri, so he will now be transferred back to the civilian court system and have what the U.S. Constitution clearly mandates:  a full trial and due process.  For Al-Marri, that is a positive step:  now, he’ll only remain in prison if he’s convicted of a crime in a real court and (presumably) will be freed if he’s acquitted.  That’s how our system is supposed to work.

But whether this is a positive step in a general sense is a different question.  In the Jose Padilla case, the Bush administration kept a U.S. citizen in a cage for many years without charges of any kind, and then suddenly filed criminal charges against him right as the Supreme Court was set to rule on the constitutionality of imprisoning U.S. citizens as “enemy combatants” with no trial.  Once they finally indicted Padilla, the Bush administration ran and argued that the indictment rendered the questions before the Court moot.  The Supreme Court, in essence, agreed and refused to hear the appeal, thus leaving in place the Fourth Circuit’s affirmation that the President has this power. 

If that is what the Obama DOJ does here — namely, if it succeeds in its efforts to convince the Supreme Court not to rule on this critical matter because, yet again, the individual who has been encaged for years without charges was, at the last minute, transferred to a civilian court (thus leaving standing the Fourth Circuit’s horrendous ruling) — that will be destructive for all the reasons that Bush critics cited when the same thing was done in the Padilla case.

The Obama DOJ deserves some limited credit for indicting Al-Marri and thus refusing to continue to imprison him with no charges.  It’s certainly not Obama’s fault that Al-Marri was imprisoned for years with no charges, and the only fair option was to do what they did:  give him a real trial.  But if this indictment results in the preservation of the President’s power in the future to similarly detain people without charges — because of the Obama DOJ’s efforts to block the Supreme Court from ruling on this question — then it is worthy of criticisms for the same reasons it was in the Padilla case.  

Ultimately, the real question is not whether you think Obama will use these powers the same way Bush did (nobody can know that), but rather:   do you want the secrecy and detention architecture built by George Bush, Dick Cheney and David Addington to remain in place so that — even if it remains dormant now — Obama or some future President can decide at any time to revitalize and use it at will?  Thus far, Obama’s answer to that question seems to be a resounding “yes.”

UPDATE:   I spoke to the annual conference of the ACLU of Massachusetts last month regarding impediments to the restoration of civil liberties under the Obama administration.  I posted the link at the end of yesterday’s post, but since that was at the end of the day, and since the speech relates directly to the topic here, I’ll post it again for those interested:  the 30-minute speech can be heard on MP3 here and is also available on ITunes here (the video of the speech may or may not be posted at some point in the future).

Guns For Votes

Posted in guns, law, politics by allisonkilkenny on February 28, 2009

Examiner

alexis-shootingThe 600,000 residents of Washington, D.C., have long been without Congressional representation.  They were only allowed to vote for President for the first time in 1964 because of the 23rd Amendment that gave the district 3 electoral votes.  But the District still lacks representation in Congress.

In 1801, the District was annexed from Maryland and Virginia and was left without elected representatives.  D.C. residents have protested their disenfranchisement from the nation over the last two centuries in a variety of ways.  In 2000, new D.C. license plates read, “Taxation Without Representation.”   

Today, the Senate voted 67-31 for a bill that would give the District a single seat in the Congress and would create an additional seat that would go to a state based on population.  As it stands, that state would be Utah.  Utah typically votes Republican and the District typically votes Democratic.  But there are strings attached to the bill.

The bill includes an amendment that would repeal local District gun control laws.  Nevada Senator John Ensign (R) sponsored the amendment that would repeal gun control laws in the District.  The District currently bans semiautomatic guns.  The bill would also restrict the District’s ability to make laws concerning gun control in the future.  

Senator Ensign said his goal with the amendment was to “remove the tremendous barriers and burdens on law-abiding citizens” but Senator Dianne Feinstein (D) of California called the amendment “reckless” and “irresponsible.”

It appears that if the citizens of D.C. want representation in Congress, they will have to trade their current laws on gun control to get it. Despite opposition from the residents of D.C. to the stripping of their gun laws, the House is expected to pass the bill next week and President Obama has promised to sign it.  

There are more obstacles ahead for the bill.  Opponents like Mitch McConnell (R) of Kentucky, insist that the Constitution on Congressional representation is clear: “only states elect members of Congress.”  The District of Columbia is not considered a “state.”

The bill will probably wind up in the Supreme Court to test its Constitutionality. 

###

NYT

Among other things, the amendment’s wacky provisions would make it much harder for police to trace crime guns by repealing all registration requirements. The amendment also would bar Washington from enacting laws or regulations that may discourage private gun ownership or use, including by children or felons. It would lift a ban on gun possession by anyone voluntarily committed to a mental institution in the last five years and end a ban on .50 caliber sniper rifles and military-style semiautomatic assault weapons. All of this under the phony guise of complying with last year’s Supreme Court ruling.

 

 

Court Rejects Obama Bid to Stop Wiretapping Suit

Posted in Barack Obama, law, politics by allisonkilkenny on February 27, 2009

Yahoo

wiretaps3WASHINGTON – The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government’s warrantless wiretapping program.

A federal appeals court in San Francisco on Friday rejected the Justice Department’s request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.

The case was brought by the Al-Haramain Islamic Foundation, a defunct charity with a chapter in Oregon.

The decision by the three-judge appeals panel is a setback for the new Obama administration as it adopts some of the same positions on national security and secrecy as the Bush administration.

Earlier this month, Attorney General Eric Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.

Yet even as that review continues, the administration has invoked the privilege in several different cases, including Al-Haramain.
The case began when the Bush administration accidentally turned over documents to Al-Haramain attorneys. Lawyers for the defunct charity said the papers showed illegal wiretapping by the National Security Agency.

The documents were returned to the government, which quickly locked them away, claiming they were state secrets that could threaten national security if released.

Lawyers for Al-Haramain argued that they needed the documents to prove the wiretapping.

The U.S. Treasury Department in 2004 designated the charity as an organization that supports terrorism before the Saudi government closed it. The Bush administration redesignated it in 2008, citing attempts to keep it operating.

The 9th Circuit eventually agreed that the disputed documents were protected as state secrets. But the court ruled that the Oregon chapter of Al-Haramain could try to find another way to show it had standing to sue the government over domestic wiretapping.

A number of organizations, including the American Civil Liberties Union, tried to sue the government over warrantless wiretapping but were denied standing because they could not show they were targeted.

Obama Backs Bush On Bagram Detainees

Posted in Afghanistan, Barack Obama, human rights, law, politics, torture by allisonkilkenny on February 21, 2009

Reuters

20080222-bush-obamaWASHINGTON (Reuters) – The Obama administration on Friday told a federal judge it would not deviate from the Bush administration’s position that detainees held at a U.S. air base in Afghanistan have no right to sue in U.S. courts.

In one of his first acts in office, President Barack Obama ordered the closure within one year of the Guantanamo Bay detention centre, which has been widely criticized by rights groups and foreign governments. About 245 people are currently held at Guantanamo, according to the Pentagon.

However, Obama has not yet decided what to do about the makeshift prison at the U.S. military base in Bagram, where the U.S. government is holding more than 600 prisoners, or whether to continue work on a $60 million prison complex there.

In late January, Obama directed a task force to study the government’s overall detainee policy and report back to him in six months.

But the new administration faced a February 20 deadline to tell U.S. District Court Judge John Bates whether it would “refine” the Bush administration’s position on four men being held at Bagram who have filed suit against their detention.

In a brief filing with the court on Friday, the Justice Department said it would stick to the previous government’s position, which argued the four men — who have been detained at Bagram for over six years — had no right to challenge their detention in a U.S. court.

Barbara Olshansky, lead counsel for three of the four detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to “adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people’s human rights.”

She said she hoped that the Obama administration was merely signalling it was still working on its position regarding the detainee issue.

The U.S. District Court held a hearing in early January on four separate challenges filed on behalf of four detainees taken to Bagram from outside Afghanistan.

At the hearing, Bush administration lawyers argued that Bagram detainees were different from those held at Guantanamo, and could pose a security threat if released.

After Obama’s executive order indicating changes to the government’s detention policy for Guantanamo, the district court asked the new administration if it wished to change its position on the prisoners at Bagram.

Now that the government has responded, the federal judge is expected to rule in coming weeks on whether his court has jurisdiction to hear the cases.

(Reporting by Andrea Shalal-Esa; editing by Todd Eastham)

###

AP

 

WASHINGTON (AP) — The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.

In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. The filing shocked human rights attorneys.

“The hope we all had in President Obama to lead us on a different path has not turned out as we’d hoped,” said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Airfield. “We all expected better.”

The Supreme Court last summer gave al-Qaida and Taliban suspects held at the U.S. naval base at Guantanamo Bay, Cuba, the right to challenge their detention. With about 600 detainees at Bagram Air Base in Afghanistan and thousands more held in Iraq, courts are grappling with whether they, too, can sue to be released.

Three months after the Supreme Court’s ruling on Guantanamo Bay, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system.

The military has determined that all the detainees at Bagram are “enemy combatants.” The Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.

After Barack Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush’s legal argument. Justice Department spokesman Dean Boyd says the filing speaks for itself.

“They’ve now embraced the Bush policy that you can create prisons outside the law,” said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.

The Justice Department argues that Bagram is different from Guantanamo Bay because it is in an overseas war zone and the prisoners there are being held as part of a military action. The government argues that releasing enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.

The government also said if the Bagram detainees got access to the courts, it would allow all foreigners captured by the United States in conflicts worldwide to do the same.

It’s not the first time that the Obama administration has used a Bush administration legal argument after promising to review it. Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the state secrets privilege, a separate legal tool it used to have lawsuits thrown out rather than reveal secrets.

The same day, however, Justice Department attorney Douglas Letter cited that privilege in asking an appeals court to uphold dismissal of a suit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations that tortured them.

Letter said that Obama officials approved his argument.

Will Obama Institute a New Kind of Preventive Detention for Terrorist Suspects?

Posted in law, torture by allisonkilkenny on February 20, 2009

Jane Mayer, The New Yorker

“We don’t own the problem,” Greg Craig, the White House counsel, says. “But we’ll be held accountable for how we handle this.” (The New Yorker)

“We don’t own the problem,” Greg Craig, the White House counsel, says. “But we’ll be held accountable for how we handle this.” (The New Yorker)

The last “enemy combatant” being detained in America is incarcerated at the U.S. Naval Consolidated Brig in Charleston, South Carolina—a tan, low-slung building situated amid acres of grassy swampland. The prisoner, known internally as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri. He has been held in isolation in the brig for more than five years, although he has never stood trial or been convicted of any crime. Under rules established by the Bush Administration, suspected terrorists such as Marri were denied the legal protections traditionally afforded by the Constitution. Unless the Obama Administration overhauls the nation’s terrorism policies, Marri—who claims that he is innocent—will likely spend the rest of his life in prison. 

On September 10, 2001, Marri, a citizen of Qatar, who is now forty-three, came to America with his family. He had a student visa, and his ostensible purpose was to study computer programming at a small university in Peoria, Illinois. That December, he was arrested as a material witness in an investigation of the September 11th attacks. However, when Marri was on the verge of standing trial, in June, 2003, President George W. Bush ordered the military to seize him and hold him indefinitely. The Bush Administration contended that America was in a full-fledged war against terrorists, and that the President could therefore invoke extraordinary executive powers to detain Marri until the end of hostilities, on the basis of still secret evidence. That day, Marri was put on a military jet to Charleston, and since then he has been living as the only prisoner in an eighty-bed high-security wing of the brig, with no visits from family, friends, or the media.

Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken the lead role in Marri’s legal defense, says that the Bush Administration’s decision to leave him in sustained isolation was akin to stranding him on a desert island. “It’s a Robinson Crusoe-like situation,” he told me. In 2005, Hafetz challenged the constitutionality of Marri’s imprisonment. A lower court affirmed the government’s right to detain him indefinitely. After several appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz calls the Marri case a pivotal test of “the most far-reaching use of detention powers” ever asserted by an American President.

The Court’s calendar requires the Obama Administration to file a reply to the challenge by March 23rd. Unless some kind of diversionary action is taken—such as sending Marri home to Qatar, or working out a plea agreement—the Court’s schedule will likely force the Obama Administration to offer quick answers to a host of complicated questions about its approach to fighting terrorism.

John Bellinger III, who served as the counsel to the State Department under President Bush, says of officials in the Obama Administration, “They will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding Marri as an enemy combatant? They have to come up with a legal theory.”

Among the issues to be decided, Hafetz says, is “the question of who is a soldier, and who is a civilian. Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the President?” Hafetz wants the Supreme Court to rule that indefinite executive detention is illegal, and he hopes that Obama will withdraw Bush’s executive order labelling Marri an enemy combatant, and issue a new one classifying him as a civilian. This shift would allow Marri either to be charged with crimes or to be released.

Keep reading…

(more…)

America’s Law-Free Zone

Posted in CIA, law, politics by allisonkilkenny on February 17, 2009

Glenn Greenwald

war-crimesDavid Rivkin and Lee Casey are right-wing lawyers and former Reagan DOJ officials who, over the last eight years, have been extremely prolific in jointly defending Bush/Cheney theories of executive power. Today, they have one of their standard Op-Eds, this time in The Washington Post, demanding that there be no investigations or prosecutions of Bush officials.  Most of the arguments they advance are the standard platitudes now composing Beltway conventional wisdom on this matter.  But there is one aspect of their advocacy that is somewhat remarkable and worth noting.

Rifkin and Casey have long been vigorous opponents of the legitimacy of international tribunals to adjudicate crimes committed by American officials.  In February, 2007, they wrote an Op-Ed in the Post bitterly criticizing Italian officials for indicting 25 CIA agents who had literally kidnapped a Muslim cleric from Italy and “rendered” him from Milan to Egypt.  In that Op-Ed, the Bush-defending duo argued that Italy had no right to prosecute these agents (h/t reader tc):

An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States . . . .

[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.

Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe.Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld — all because of controversial aspects of the war on terrorism. These follow Belgium’s misguided effort to pursue “universal jurisdiction” claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away.  The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States — and one often not subject to control by the relevant foreign government.

Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.

So it’s up to the U.S. — not any foreign tribunals — to prosecute war crimes and other felonies committed by American officials (for reasons that, at least in part, I find persuasive).  In fact, they argue, international prosecutions are so illegitimate that such proceedings themselves should be declared by the U.S. to be crimes.  Indeed, like most of their political comrades, Rivkin and Casey have consistently argued that U.S. jurisdiction over alleged violations of international law and U.S. treaties by U.S. citizens — including our leaders — is exclusive. 

They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf), arguing that “[t]he question is whether [international] law can, or should, be enforced outside national legal systems that have generally functioned well.”  Their answer, of course, is that, when it comes to Americans, international law obligations cannot and shouldn’t be enforced anywhere but America:

There are many problems with the Rome Treaty.  The most immediate one, for Americans, is the danger of its being used as a political instrument against us.  But the most profound flaw is a philosophical one:  The concept of “international” justice underpinning the ICC project is more apparent than real. . . .

The prosecution of political leaders is inherently political, and there are at least two sides to every political conflict. . . . From America’s perspective, the greatest practical danger of joining the ICC regime would be that the court, driven by those who may resent American global preeminence, could seek to restrain the use of U.S. military power through prosecutions of U.S. leaders.

They then went on to call for the Bush administration to vocally and decisively reject the legitimacy of the ICC  so that the whole edifice would collapse.  This is because American leaders should not be subjected to prosecution in foreign countries for their crimes — only in America.

Yet what do these two argue today?  That domestic investigations and prosecutions — by American tribunals and American courts — are alsoinappropriate, illegitimate and destructive.  Though they acknowledge that “the Justice Department is capable of considering whether any criminal charges are appropriate,” they nonetheless insist that this must not be done:

For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea — for policy and, depending on how such a commission were organized and operated, for legal and constitutional reasons. . . .

Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora’s box is opened, its contents can wreak havoc equally across the political and party spectrum. . . .

Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration’s policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.

So no international tribunals or foreign countries have any power to investigate or prosecute American officials for war crimes (even when those war crimes are against citizens of those countries and/or committed within their borders).  And, American political officials must also not be prosecuted inside the U.S., by American courts.  “Nobody is entitled” to do that either, because “attempting to prosecute political opponents at home or facilitating their prosecution abroad is like pouring acid into our democratic machinery.”

The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration.  If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to mostother leaders) are completely and explicitly exempt from, placed above, the rule of law.  That conclusion is compelled from their premises. 

At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders.  Didn’t our opinion-making elites learn in eight grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny?  Those are the only two choices.  It’s just so basic.

Apparently, though, this is all fine with our political establishment, since none of this is new.  Here’s what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:

President Bush’s pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.

Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens. Although it is the President’s prerogative to grant pardons, it is every American’s right that the criminal justice system be administered fairly, regardless of a person’s rank and connections.

The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. . . . Weinberger’s early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possibly forestalled timely impeachment proceedings against President Reagan and other officials. Weinberger’s notes contain evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public. . . .

In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.

Does anyone deny that we are exactly the country that Walsh described:  one where “powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence”?  And what rational person could think that’s a desirable state of affairs that ought not only be preserved — but fortified still further– as we move now to immunize Bush 43 officials for their far more serious and disgraceful crimes?  As the Rifkin/Casey oeuvre demonstrates, we’ve created a zone of lawlessness around our highest political leaders and either refuse to acknowledge that we’ve done that or, worse, have decided that we don’t really mind.