Gotcha--Due Process With Vengeance

On Tuesday, November 22, two cases that I had followed and written about since their inception took a strange turn. Jose Padilla’s case received the most attention. He is the American citizen who was picked up in Chicago in May 2002, taken into custody in New York, and held in New York on a “material witness” subpoena. This is a little-known-about trick the government can play on you when it wants to lock you up but doesn’t quite know why. The New York prosecutors said they wanted to question him about a “dirty bomb” plot and they had to keep him locked up because he might flee the country.

A New York federal judge appointed Padilla an aggressive, shrewd attorney, Donna Newman, and she moved to have him released. But before that motion could be heard, literally in the dark of night, Padilla was turned over to military authorites on order of President Bush. He was named an “enemy combatant,” and ordered held by the military for as long as Bush wanted or until the end of “hostilities.”

Newman promptly filed a habeas corpus petition that most ancient of legal writs designed to allow judicial review by a prisoner who alleges he is being imprisoned contrary to law. It took two years for Padilla’s case to get to the Supreme Court, and when it did, in the summer of 2004, the Court ruled that the case had to be filed in another federal court wrong venue. By this time, Padilla had been removed to a navy bring in South Carolina.

Upon refilling, the lower federal court found that Padilla was unlawfully held. As an American citizen, the U.S. District Court judge said, there was no lawful basis to hold him in prison without charging him with a crime. The judge ordered the government to charge him or release him, but stayed that order and allowed the government to appeal. That appeal went to the federal court in Richmond, Virginia and they, the rightist of the right-wing courts, upheld his detention, much as they had done in the case of Yaser Hamdi two years before. The Supreme Court had overruled the court on that case, however, deciding, at the same time it dismissed Padilla’s appeal, that there were limits on executive power in "wartime” to hold Americans. The Supreme Court sent Hamdi’s case back to the lower court, and said he could challenge the lawfulness of his detention at Guantanamo Cuba.

Lo and behold, within a few short weeks, Hamdi was released from Guantanamo on the grounds that he return to Saudi Arabia, where he held dual citizenship. The once dangerous terrorist was set free when the government was told to put up or shut up.

When Attorney General Gonzales held a press conference to announce that Padilla was being charged with conspiracy to commit terrorism abroad, he refused to answer any questions about why Padilla was not charged with plotting to do what Ashcroft said he was going to do (even the Ashcroft story had morphed over time from planning to detonate a “dirty” bomb, to plots to blow up bridges or apartment buildings). Further, he said his indictment, and removal from the navy brig in South Carolina where he had been for three years to the federal detention center in Miami had nothing to do with his being an enemy combatant. In other words, he still is one.

Does Padilla’s indictment mean he will get a real trial under the Constitution and federal law, or will Gonzalez and gang try to play by different rules, as they are doing in so many other “terrorist cases?” I imagine the later. And on the off chance Padilla is acquitted, he can be returned to the custody of the President of the United States as an enemy combatant.

The government played an even bigger “gotcha” on Ahmed Omar Abu Ali, a Falls Church resident, American citizen, who November 22 was convicted by an Alexandria, Virginia jury of conspiring to commit terrorism, including plotting to assassinate President Bush, bring in terrorists through Mexico, and blow up airplanes. The charges sound horrible, but if you read the indictment you would find that Abu Ali did nothing more that talk not that talk like this is a smart thing but there was no concrete plan. As Paul Wolfolwitz had one time said of Padilla’s alleged “plot,” it appears to have been a lot of “loose talk.” But loose talk can get you life in prison these days.

But it’s not the charges against Abu Ali that were unusual. No, those are cropping up all here and there, against Arab men, some American citizens. What was unusual about Abu Ali’s case is that he was held, at the behest of the federal prosecutors, in a Saudi prison for twenty-two months, during which time he was repeatedly interrogated by Saudi law enforcement and the FBI. Eventually the Saudis obtained a confession, with FBI agents watching from behind a hidden camera. Though conceding that Abu Ali was interrogated for hours on end, day after day, the interrogations lasting throughout the night, during which he was often shackled and chained, and though he had no attorney (even though his parents were trying to provide him one), Judge Gerald Bruce Lee found his confession to be voluntary and uncoerced. Medical doctors testified that he had the marks of physical torture and the symptoms of having been mentally coerced, but prosecution doctors said he was faking.

Lee also said that Abu Ali was not entitled to the constitutional protections of an attorney and a speedy trial. Why? Because he was held by Saudi Arabia, not the US, and, further, he was never a criminal suspect and thus the Bill of Rights does not apply. The government did not explain how someone who was never a criminal suspect suddenly became a criminal defendant.


But I have a plausible explanation. Alexandria prosecutors brought Abu Ali to the U.S. and charged him after his parents had appeared to convince a federal judge in the District of Columbia that the government had their son and would not allow him to return home (Abu Ali was studying in a Saudi university at the time of his arrest). They, like Padilla’s lawyers, filed a writ of habeas corpus. Initially, the Justice Department denied having anything to do with Abu Ali’s arrest and imprisonment in Saudi Arabia. They even said, at one time, that he could come home whenever the Saudis were ready to release him (they had questioned him in connection with the bombing of a residential compound in Riyadh in 2003),

Then the government changed its tune and said he was too dangerous to be returned to the U.S., but they couldn’t say why oh they could say, but only to a judge, not to Abu Ali’s parents. While the judge was pondering this posture of the government, the government produced him, without warning, in federal court in Alexandria and arraigned him on an indictment that was a lot milder than the one he was eventually tried on.

As with Padilla, the charges kept shifting and, of course, each time they got more serious, more sinister. Abu Ali will surely receive life in prison even though, as one attorney put it, the charge is more like a conspiracy to conspire at some future time. But then, if you looked behind the grandiose press conferences of his case, Padilla’s, and others like theirs, you would find the flimsiest of facts.

I can’t speak to the facts surround the charges that Padilla faces and that Abu Ali was convicted of. What I can speak to, is the sorry methods of our government as it plays games with American citizens. Nothing excuses keeping Padilla locked up incommunicado for three years, changing stories about him all the time and two weeks before it was due to file a brief explaining its position to the U.S. Supreme Court, pulling out a whole new set of facts and taking him out of Bush’s hands and into the hands of federal prosecutors.

And nothing excuses using a foreign government, known to engage in torture (one Saudi official testified, by video feed, in Abu Ali's case, that Saudi’s had a 100 percent confession rate under their interrogation methods), to imprison an American for what reasons, we will never know and then, when the gig appears to be up, when a federal judge has a hard time believing the government’s ever-changing theory of where Abu Ali was and who had him, bringing him home and filing charges.

In these two cases, our government has violated every principle of constitutional law and criminal procedure that at one time made our criminal justice system something to be proud of. The Bill of Rights held no hope for these men. Only the write of habeas corpus that last hope for the hopeless that holds the President to account for imprisoning someone got then in the court house door.

But the government taught them a civics lesion they didn’t learn in school: the President, at least this President, thinks he can walk all the Bill of Rights your rights and get away with it. When one maneuver fails, they have another up their sleeves. And when they run out of tricks, they turn their energies to making a criminal case against you, albeit the allegations are based in supposed facts that are years old and often come from other alleged terrorists who are making plea and sentencing deals or from coercion, maybe even torture, in a foreign land.

Want due process? The Bush administration will make you sorry you asked. Gotcha.


Prosecutor Under Investigation in Detroit Terrorism Case

I wrote about the case of the Detroit "sleeper cell" in my book, The War on Civil Liberties. When the book went to press, Judge Rosen was considering defense motions to set aside the verdicts. Apparently the Justice Department is probing whether the lead prosecutor set out to mislead the defense, and to convict the defendants with false evidence.

The prosecutor alleges that he is being smeared by the Justice Department, against who he testified about to Congress in a probe of case.

Considering that this administration would not likely investigate any prosecutor for dirty tricks--given that it lives by them in its Roveian universe--the more likely scenario is that the prosecutor IS being retaliated against for blowing the whistle on the big guns.

Here is the Washington Post story about the case.
Detroit 'Sleeper Cell' Prosecutor Faces Probe
Grand Jury Considering Indictment for Misconduct

By Peter Slevin
Washington Post Staff Writer
Sunday, November 20, 2005; A03

DETROIT -- Once trumpeted as one of the Justice Department's significant triumphs against terrorism, the case targeting the so-called "Detroit sleeper cell" began less than a week after the attack on the World Trade Center. It was only after a jury convicted two men of supporting terrorism that the flimsiness of the government's case became clear.

As hidden evidence spilled out and the Justice Department abandoned the effort, federal investigators began to wonder whether the true conspiracy in the case was perpetrated by the prosecution.

Now a federal grand jury in Detroit is investigating whether the lead prosecutor, Richard Convertino, or anyone else should be indicted for unfairly tipping the scales.

It is a highly unusual case. No charges have been brought and many details remain secret, but information in public documents and testimony in U.S. District Court in Detroit suggest an effort by federal prosecutors and important witnesses to mislead defense lawyers and deceive the jury. U.S. District Judge Gerald E. Rosen said the government acted "outside the Constitution."

Rosen and Justice Department investigators concluded last year that the prosecution stuck doggedly to its theory in defiance of plausible explanations and advice from other U.S. government officials. Records suggest prosecutors withheld evidence that cast doubt on their conclusions, even when ordered by superiors to deliver documents to the defense.

Convertino, who resigned from the Justice Department earlier this year to practice law in Michigan, has denied wrongdoing. He sued former Attorney General John D. Ashcroft and other superiors, accusing them of mismanaging anti-terrorism efforts and retaliating against him for testifying to Congress about those efforts. His attorneys contend that Convertino was no renegade and was closely supervised by Washington.

It would be "extremely rare for a prosecutor to face criminal charges for misconduct," said former D.C. public corruption prosecutor Randall D. Eliason. "The key is going to be showing deliberate and willfully corrupt misconduct, as opposed to somebody who was pushing the envelope and got carried away."

U.S. District Judge Royce Lamberth threw out the retaliation claim in Convertino's civil lawsuit in October, saying federal court was not the proper venue. He allowed another portion of Convertino's case to proceed, though he has granted a delay while the Detroit grand jury investigation is underway.

The case of the sleeper cell that wasn't began on Sept. 17, 2001, when federal agents searching for a suspect named Nabil al-Marabh instead found three men in a Detroit apartment where al-Marabh had once lived. Among their possessions were fake identity documents, Islamic fundamentalist cassette tapes and a videotape with footage of tourist sites.

Prosecutors charged four men -- Karim Koubriti, Ahmed Hannan, Farouk Ali-Haimoud and Abdel-Ilah Elmardoudi -- with conspiring to help terrorists. Convertino and his principal chief government witness, FBI agent Paul George, believed they had cracked an "operational combat cell" of Islamic terrorists.

Convertino told a jury when the trial began in March 2003 that the men were a "shadowy group" that was "planning, seeking direction, awaiting the call." The most important piece of evidence was a day planner that included a pair of sketches.

To the prosecution, they were the maps of a terrorist. The defense dismissed them as doodles.

Seeing that one drawing said "Queen Alia Jordan," Convertino and his team searched for a match in Jordan among an airport, hotel and military hospital that all bore the name of the former queen. FBI agent Michael Thomas and State Department security officer Harry Raymond Smith testified to seeing striking similarities between the sketch and the hospital's surroundings.

"Every time we turned," Smith testified, "it was getting more and more like this drawing."

There was much discussion during the trial about whether the prosecution had photographs that could settle the debate. When Convertino asked Smith under oath whether he had taken photographs, Smith replied that diplomats "never take pictures" of a military installation because "it could cause bigger political implications."

But Justice investigators said later that U.S. officials had taken photographs and Convertino knew it. E-mails from State Department liaison Ed Seitz reported that the photos had been forwarded to Detroit, where Convertino replied, "Thanks Ed!! We love ya."

Justice lawyers said the photographs and the e-mails should have been disclosed. They concluded, in remarks unusually critical of a fellow prosecutor, that "misleading testimony was elicited."

"It is difficult, if not impossible," the lawyers wrote, "to compare the day planner sketches with the photos and see a correlation between the documents and the hospital site."

Thomas told investigators after the trial that Jordanian intelligence officers believed the drawing more resembled the airport. But he testified differently, telling the jury: "We presented this document to the Jordanians. They said, 'We believe this is the military hospital.' " Convertino said a second day planner drawing portrayed Incirlik Air Base in Turkey. This time he introduced photographs. Thomas testified that the match was "almost identical," while Air Force Lt. Col. Mary Peterson described the sketch as "pre-operational surveillance."

What no one on the prosecution team revealed was that other military analysts thought the drawing was not a bomber's map of Incirlik, but a doodler's depiction of a map of the Middle East.

The Justice review team said Peterson had created the "strong inference" that all Air Force personnel agreed that an object in the drawing was a hardened bunker that existed at Incirlik. But undisclosed documents in the Air Force file called the drawing unclear and described any conclusions as "essentially opinion."

A group of U.S. terrorism specialists in Ramstein, Germany, also studied the drawing and concluded that it might be a Middle East map. That detail took on more importance after the trial when an Air Force investigator described a conversation with FBI agent Thomas.

According to the investigator, Thomas reported that a Yemeni source named Nasser Ahmed told him his mentally unstable brother might have drawn a map of the Middle East while doodling in the day planner. Defense lawyers were never told of the potentially exculpatory evidence, as required by law.

Rosen was so troubled by another piece of hidden evidence that he conducted a December 2003 hearing to find out why the U.S. attorney's office had failed to disclose it. The subject was a letter written by Milton "Butch" Jones, a Detroit drug gang leader awaiting sentencing on a federal murder charge.

Jones wrote to prosecutors that he had spoken in jail with Youssef Hmimssa, the only witness to tie the Detroit defendants to a terrorist cell. He quoted Hmimssa as saying he had lied to the FBI and fooled the Secret Service. Jones offered to show prosecutors his notes and take a polygraph test.

Federal prosecutor Joseph Allen testified in a post-trial hearing that he showed the letter to Convertino more than a year before Hmimssa took the witness stand. When it became clear during the trial that the letter remained secret, Allen was so upset that he notified the head of the Detroit U.S. attorney's office criminal division, Alan Gershel.

Gershel told Rosen how, with the letter in front of him, he instructed Convertino's co-counsel, Keith Corbett, during the trial to release it. Allen said Gershel told him later the same day that the matter had been taken care of.

But Convertino and Corbett did not release the letter. Questioned later by Rosen, Convertino said "it slipped through the cracks" and would not have helped the defense anyway. Corbett admitted a "mistake in judgment on our part," but added that he did not recall Gershel's order to surrender the letter.

Rosen ordered the internal Justice Department inquiry in December 2003, six months after the jury convicted Koubriti and Elmardoudi of supporting terrorism. Those two and Hannan were also convicted of document fraud. Ali-Haimoud was acquitted.

The Justice Department took its own case apart, witness by witness, and delivered scores of pages of evidence to defense lawyers. Rosen also traveled to the CIA to review classified documents.

Beyond the evidence about the trial, the Justice Department review quoted witnesses as saying that Convertino instructed an FBI agent not to fill out official reports on the lengthy interviews of Hmimssa, the questionable witness. The FBI reports -- standard procedure -- would have been accessible to defense lawyers.

Defense lawyers, who had accused the prosecution of concealing evidence and knowingly using false testimony, felt vindicated.

"This was, for lack of a better term, a conspiracy to present a fraudulent case to the court," said Detroit defense lawyer William Swor, who represented Elmardoudi. "They took what was a reasonable concern under the circumstances and turned it into a witch hunt."

The Shocking Case of Ahmed Omar Abu Ali


http://writ.findlaw.com/cassel/20051107.html

----
The Shocking Trial of American Citizen Ahmed Abu Ali:
Statements Procured Under Duress in a Saudi Prison Are Now Being Used by U.S. Prosecutors in a U.S. Court
By ELAINE CASSEL
----
Monday, Nov. 07, 2005

Ahmed Abu Ali is an American - a resident of Falls Church, Virginia. In the summer of 2003, Abu Ali was taking final exams in a Saudi Arabian university, and looking forward to returning home to his family in Northern Virginia for the summer.

But Abu Ali did not come home. Instead, Saudi law enforcement authorities forcibly removed him from his classroom and imprisoned him for twenty months. Later, as I detailed in an earlier column, Abu Ali did return to Virginia - but to face federal charges of conspiracy to aid and abet terrorism.

This September, the government added new charges in a new indictment. And this October, Judge Gerald Lee denied Abu Ali's motions to suppress, as evidence, what the government alleges are confessions to several serious terrorism crimes. (He also denied Abu Ali's related motion to dismiss the charges in light of the way the evidence was procured.) Now, the trial has begun.

In this column, I will explore some troubling aspects of the indictment and the interrogation that gave rise to it.

Why the Charges Against Abu Ali Are Shaky

Abu Ali is charged with plotting to bring al Qaeda members into the U.S. by means of Mexico, to commit aircraft piracy, and to kill President Bush through the use of suicide bombers and snipers. Abu Ali faces possible life imprisonment on these very serious charges. But whether there ever was such a conspiracy is doubtful.

Consider, first, that all of Abu Ali's alleged co-conspirators are unnamed. Some, it seems, have been convicted in connection with other Alexandria "terrorism" cases (including the Paintball cases, which I have discussed in another column) as well. Their "cooperation" with prosecutors could lead to reductions in their long sentences.

Consider, too, that typically, a conspiracy charge requires not just talk, but an "overt act." And here, the only acts the government alleges are purchases of a cell phone and a laptop.

So this case is really about talk. Yet much of the government's evidence regarding what Abu Ali allegedly talked about, comes from his interrogation by his Saudi captors and FBI agents, in a Saudi prison - interrogation that was not only unconstitutional, but highly unreliable.

Column continues below Can Evidence Coerced by Saudi Interrogators Be Used in a U.S. Court?

Abu Ali was interrogated by the Saudis without any of the safeguards that Americans are afforded in U.S. court. He did not have the right to an attorney. He was not informed of his Miranda rights. And he was not protected against coercive self-incrimination.

Yet now, American prosecutors will be using Abu Ali's unconstitutionally-procured statements against him in an American court. How did this happen?

To aid the judge in deciding whether to allow the statements to be admitted, defense attorneys questioned Abu Ali's Saudi interrogators - with the help of Arabic translators -- by live audio and satellite feed from Saudi Arabia to the federal courthouse in Alexandria, Virginia. Supposedly for "security reasons," the Saudi officials were allowed to testify under pseudonyms. (Prosecutors and defense attorneys were also present in Saudi Arabia as well as in Alexandria).

What the Saudi Interrogators Claimed: No Torture, Voluntary Confessions

The Saudis said it was their idea - not the United States' -- to initially detain Abu Ali in June 2003, as a part of their investigations into the May 2003 bombing of a residential compound in Riyadh.

But shortly after the Saudis arrested Abu Ali, they said, Alexandria prosecutors "ordered" them to ask Abu Ali some questions. This admission puts the lie to any claim that this was not, in effect, a joint U.S.-Saudi scheme of imprisonment and interrogation

Had Abu Ali's interrogation taken place in the U.S., it would have been plainly unconstitutional. Kept in solitary confinement (allegedly for his own protection), Abu Ali was repeatedly interrogated from 8 p.m. to 6 a.m. (according to his captors, because it was too hot during the day, and not to deprive him of sleep), a commonly used coercive interrogation tactic. He was also often shackled and chained during questioning. At some point, Abu Ali was ordered to put his "confessions" into writing and read them aloud while being videotaped.

The Saudis denied use of any torture.

What the FBI Agents Claimed: No Attempt to Circumvent Miranda Protections

The FBI agents who traveled to Saudi Arabia also testified. They explained that they had watched from behind a one-way mirror while Saudis conducted interrogations. They eventually participated in their own interrogations, with and without their Saudi counterparts. Emails from FBI agents to Alexandria prosecutors assured them that the Saudis would do whatever the US told them to do.

This is further evidence that the Saudis and Americans were engaged in a joint enterprise to detain and interrogate Abu Ali.

With U.S. prosecutors calling the shots, and doing some of the interrogating, why weren't Abu Ali's constitutional rights honored? The FBI agents testified that Miranda was not applicable, nor was Abu Ali provided a lawyer, because Abu Ali was not a U.S. criminal suspect. Rather, they say, they were just talking to Abu Ali to gather intelligence.

But that crucial assertion, too, utterly lacks credibility. Of course the FBI came to Saudi Arabia to investigate charging Abu Ali with a crime - which was exactly what they later did. If it were purely for intelligence purposes, wouldn't they have sent interrogators from the CIA or the Department of Defense?

What the Doctors Testified: Evidence of Beatings and Trauma

Abu Ali's attorneys introduced the testimony of physicians who believed that scars on Abu Ali's back were evidence of beatings. Prosecution experts said these scars were either self-inflicted, or acne scars. But what we know of Saudi interrogation practices makes the defense experts' testimony far more compelling.

Defense psychological experts said that Abu Ali was suffering from post-traumatic stress syndrome, brought on by his imprisonment and interrogation. Prosecution psychologists said he was well-adjusted, and any maladjustment symptoms were feigned. Again, the defense's experts were more credible: Who among us would not be traumatized by being interrogated for months in a Saudi prison?

Judge Lee's Opinion Wrongly Finds That No Laws or Rights Were Violated

In light of the evidence presented, how could Judge Lee let this case go forward?

He defended his reasoning in a 113-page decision. But his logic comes down to taking the FBI's word for the proposition that the interrogation was designed to obtain intelligence, and was not part of a criminal investigation - and thus that Abu Ali did not enjoy the rights of a criminal suspect.

By adopting the government's implausible spin on the facts, Judge Lee concluded that Abu Ali had no rights at all.

It is not clear at what point Abu Ali, in fact, became a suspect, but we do know Abu Ali's indictment was suspiciously and closely related to developments in the habeas corpus case filed by Abu Ali's parents in federal court in the District Columbia, before Judge John Bates.

So, if we take the government's word for it (as Judge Lee did), Abu Ali never was a suspect. But, he suddenly became a defendant when it appeared that Judge Bates was having some problems with the government's position that Abu Ali - then in Saudi Arabia - was so dangerous he could not be returned to the U.S.

Judge Lee Rewards the Government's Unconstitutional Tactics

Judge Lee excluded no evidence, rewarding the government for its decision to interrogate an American in a Saudi prison using Saudi tactics. He repeatedly concluded that the methods and tactics used against Abu Ali did not "shock the conscience," the Supreme Court's standard for excluding confessions on the ground that they were not voluntarily given.

Even if the evidence about physical beatings was not wholly convincing, to conclude that a confession is voluntary when given in a Saudi prison under harsh interrogation tactics over an eighteen-month period, much of it in solitary confinement, without a lawyer, defies credibility.

Judge Lee also ruled that Abu Ali had no speedy trial right because at no time was he under arrest by the United States; rather, he was simply an intelligence target. Judge Lee found no credence in the defense position that the Saudis were acting as agents of the U.S. in order to circumvent U.S. constitutional rights.

But he should have: The government's own emails boasting of the Saudis' doing what they were told; the questions fed to the Saudis by the FBI; the joint and U.S.-only interrogations in Saudi prisons; and the well-known U.S.-Saudi alliance, are all evidence that the Saudis acted as U.S. agents - though also on their own behalf as well.

While Judge Lee ignored the weakness of many of the government's claims, he honed in on any perceived inconsistency between Abu Ali's versions of events and the interrogatories his attorneys submitted - seeing such inconsistencies as a sign of Abu Ali's "cunning."

The Practice Of Unconstitutional U.S. Interrogations In Foreign Prisons Must End

Dana Priest, writing for the Washington Post last week, confirmed what Amnesty International and others had thought for some time: The CIA is running a chain of prisons outside the United States. Its captives are alleged terrorists. Rights - whether under the Geneva Conventions or the U.S. Constitution - are ignored. The article by Jennifer Van Bergen appearing today on this site stresses the illegality of this practice.

The Post article describes prison cells consisting of underground tunnels, hidden not just from the light of day, but from the prying eyes of the U.S. Congress and the American taxpayers who foot the bill. Government sources admit that the prisoners are subject to intense interrogation. Some have been imprisoned for years.

As odious as these imprisonments and interrogations are, like it or not, the CIA's ability to operate outside the constraints of law has a long history in this country. This is not the case with federal criminal justice system, whose accountability makes it the best in the world.

Abu Ali's shocking treatment is the first that tests the notion that Americans can be imprisoned abroad by their government, interrogated by foreign and domestic law enforcement, and be denied all rights as coercive confessions are obtained to be used against them in a U.S. court. (The value of Abu Ali's confessions cannot be underestimated, given that at least some of the unnamed co-conspirators are thought to be convicted terrorists themselves.)

Abu Ali, if convicted, won't find much sympathy on appeal to the U.S. Court of Appeals for the Fourth Circuit or the U.S. Supreme Court. Justice John Roberts and, if confirmed, a Justice Samuel Alito, are strong proponents of virtual unbridled executive and prosecutorial powers, especially in the "war" on terrorism.

Abu Ali's case may be the beginning of the end of differences between the U.S. criminal justice system and those of repressive, undemocratic regimes like Saudi Arabia, its partner in this case. In terms of criminal cases, the Bill of Rights is being tested like never before in Judge Lee's courtroom. So far, the cherished rights are on the losing side.

The only consolation--if there is any at all--is that at least the government was forced to bring Abu Ali to the U.S. so that we can see what it is doing to one of its citizens. In the future, Americans may be sitting in one of those underground interrogation cells in a CIA prison. We won't know their names, and they won't be heard from again.


FBI Conducting Widespread Surveillance on Americans

As I have been predicting since the passage of the Patriot Act, the FBI is using "security letters" to conduct widespread surveillance of tens of thousands of Americans. The letters are simply demands from FBI Field Officers, for businesses, health care providers, libraries, banks, etc. to turn over records of individuals. Many businesses comply without awareness that the requests are outside the scope of the law. They are afraid to be considered unpatriotic by protesting. But as this Washington Post article shows, much of what is asked has nothing to do with terrorism. If you were in Las Vegas New Year's Eve 2003, the government has a file on you. It knows everything you did during that holiday period, and with whom you did it. And that may just be the beginning. To that file, the FBI will add everything it can find out about you from electronic records.

washingtonpost.com
The FBI's Secret Scrutiny
In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans

By Barton Gellman
Washington Post Staff Writer
Sunday, November 6, 2005; A01

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.

Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.

Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.

The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

National security letters offer a case study of the impact of the Patriot Act outside the spotlight of political debate. Drafted in haste after the Sept. 11, 2001, attacks, the law's 132 pages wrought scores of changes in the landscape of intelligence and law enforcement. Many received far more attention than the amendments to a seemingly pedestrian power to review "transactional records." But few if any other provisions touch as many ordinary Americans without their knowledge.

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect -- a single telephone call, for example -- may attract the attention of investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it gathers describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

As it wrote the Patriot Act four years ago, Congress bought time and leverage for oversight by placing an expiration date on 16 provisions. The changes involving national security letters were not among them. In fact, as the Dec. 31 deadline approaches and Congress prepares to renew or make permanent the expiring provisions, House and Senate conferees are poised again to amplify the FBI's power to compel the secret production of private records.

The House and Senate have voted to make noncompliance with a national security letter a criminal offense. The House would also impose a prison term for breach of secrecy.

Like many Patriot Act provisions, the ones involving national security letters have been debated in largely abstract terms. The Justice Department has offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.

"The beef with the NSLs is that they don't have even a pretense of judicial or impartial scrutiny," said former representative Robert L. Barr Jr. (Ga.), who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. "There's no checks and balances whatever on them. It is simply some bureaucrat's decision that they want information, and they can basically just go and get it."

'A Routine Tool'

Career investigators and Bush administration officials emphasized, in congressional testimony and interviews for this story, that national security letters are for hunting terrorists, not fishing through the private lives of the innocent. The distinction is not as clear in practice.

Under the old legal test, the FBI had to have "specific and articulable" reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are "sought for" or "relevant to" an investigation "to protect against international terrorism or clandestine intelligence activities."

That standard enables investigators to look for conspirators by sifting the records of nearly anyone who crosses a suspect's path.

"If you have a list of, say, 20 telephone numbers that have come up . . . on a bad guy's telephone," said Valerie E. Caproni, the FBI's general counsel, "you want to find out who he's in contact with." Investigators will say, " 'Okay, phone company, give us subscriber information and toll records on these 20 telephone numbers,' and that can easily be 100."

Bush administration officials compare national security letters to grand jury subpoenas, which are also based on "relevance" to an inquiry. There are differences. Grand juries tend to have a narrower focus because they investigate past conduct, not the speculative threat of unknown future attacks. Recipients of grand jury subpoenas are generally free to discuss the subpoenas publicly. And there are strict limits on sharing grand jury information with government agencies.

Since the Patriot Act, the FBI has dispersed the authority to sign national security letters to more than five dozen supervisors -- the special agents in charge of field offices, the deputies in New York, Los Angeles and Washington, and a few senior headquarters officials. FBI rules established after the Patriot Act allow the letters to be issued long before a case is judged substantial enough for a "full field investigation." Agents commonly use the letters now in "preliminary investigations" and in the "threat assessments" that precede a decision whether to launch an investigation.

"Congress has given us this tool to obtain basic telephone data, basic banking data, basic credit reports," said Caproni, who is among the officials with signature authority. "The fact that a national security letter is a routine tool used, that doesn't bother me."

If agents had to wait for grounds to suspect a person of ill intent, said Joseph Billy Jr., the FBI's deputy assistant director for counterterrorism, they would already know what they want to find out with a national security letter. "It's all chicken and egg," he said. "We're trying to determine if someone warrants scrutiny or doesn't."

Billy said he understands that "merely being in a government or FBI database . . . gives everybody, you know, neck hair standing up." Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."

He added: "That's not going to satisfy a majority of people, but . . . I've had people say, you know, 'Hey, I don't care, I've done nothing to be concerned about. You can have me in your files and that's that.' Some people take that approach."

'Don't Go Overboard'

In Room 7975 of the J. Edgar Hoover Building, around two corners from the director's suite, the chief of the FBI's national security law unit sat down at his keyboard about a month after the Patriot Act became law. Michael J. Woods had helped devise the FBI wish list for surveillance powers. Now he offered a caution.

"NSLs are powerful investigative tools, in that they can compel the production of substantial amounts of relevant information," he wrote in a Nov. 28, 2001, "electronic communication" to the FBI's 56 field offices. "However, they must be used judiciously." Standing guidelines, he wrote, "require that the FBI accomplish its investigations through the 'least intrusive' means. . . . The greater availability of NSLs does not mean that they should be used in every case."

Woods, who left government service in 2002, added a practical consideration. Legislators granted the new authority and could as easily take it back. When making that decision, he wrote, "Congress certainly will examine the manner in which the FBI exercised it."

Looking back last month, Woods was struck by how starkly he misjudged the climate. The FBI disregarded his warning, and no one noticed.

"This is not something that should be automatically done because it's easy," he said. "We need to be sure . . . we don't go overboard."

One thing Woods did not anticipate was then-Attorney General John D. Ashcroft's revision of Justice Department guidelines. On May 30, 2002, and Oct. 31, 2003, Ashcroft rewrote the playbooks for investigations of terrorist crimes and national security threats. He gave overriding priority to preventing attacks by any means available.

Ashcroft remained bound by Executive Order 12333, which requires the use of the "least intrusive means" in domestic intelligence investigations. But his new interpretation came close to upending the mandate. Three times in the new guidelines, Ashcroft wrote that the FBI "should consider . . . less intrusive means" but "should not hesitate to use any lawful techniques . . . even if intrusive" when investigators believe them to be more timely. "This point," he added, "is to be particularly observed in investigations relating to terrorist activities."

'Why Do You Want to Know?'

As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. Michael Mason, who runs the Washington field office and has the rank of assistant FBI director, found no ready answer.

"I'd love to have a made-for-Hollywood story, but I don't have one," Mason said. "I am not even sure such an example exists."

What national security letters give his agents, Mason said, is speed.

"I have 675 terrorism cases," he said. "Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat."

Because recipients are permanently barred from disclosing the letters, outsiders can make no assessment of their relevance to Mason's task.

Woods, the former FBI lawyer, said secrecy is essential when an investigation begins because "it would defeat the whole purpose" to tip off a suspected terrorist or spy, but national security seldom requires that the secret be kept forever. Even mobster "John Gotti finds out eventually that he was wiretapped" in a criminal probe, said Peter Swire, the federal government's chief privacy counselor until 2001. "Anyone caught up in an NSL investigation never gets notice."

To establish the "relevance" of the information they seek, agents face a test so basic it is hard to come up with a plausible way to fail. A model request for a supervisor's signature, according to internal FBI guidelines, offers this one-sentence suggestion: "This subscriber information is being requested to determine the individuals or entities that the subject has been in contact with during the past six months."

Edward L. Williams, the chief division counsel in Mason's office, said that supervisors, in practice, "aren't afraid to ask . . . 'Why do you want to know?' " He would not say how many requests, if any, are rejected.

'The Abuse Is in the Power Itself'

Those who favor the new rules maintain -- as Sen. Pat Roberts (R-Kan.), chairman of the Senate Select Committee on Intelligence, put it in a prepared statement -- that "there has not been one substantiated allegation of abuse of these lawful intelligence tools."

What the Bush administration means by abuse is unauthorized use of surveillance data -- for example, to blackmail an enemy or track an estranged spouse. Critics are focused elsewhere. What troubles them is not unofficial abuse but the official and routine intrusion into private lives.

To Jeffrey Breinholt, deputy chief of the Justice Department's counterterrorism section, the civil liberties objections "are eccentric." Data collection on the innocent, he said, does no harm unless "someone [decides] to act on the information, put you on a no-fly list or something." Only a serious error, he said, could lead the government, based on nothing more than someone's bank or phone records, "to freeze your assets or go after you criminally and you suffer consequences that are irreparable." He added: "It's a pretty small chance."

"I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons," said Mason, the Washington field office chief. But if those records "are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?"

Barr, the former congressman, said that "the abuse is in the power itself."

"As a conservative," he said, "I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply."

At the ACLU, staff attorney Jameel Jaffer spoke of "the profound chilling effect" of this kind of surveillance: "If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books. The FBI should not have unchecked authority to keep track of who visits [al-Jazeera's Web site] or who visits the Web site of the Federalist Society."

Links in a Chain

Ready access to national security letters allows investigators to employ them routinely for "contact chaining."

"Starting with your bad guy and his telephone number and looking at who he's calling, and [then] who they're calling," the number of people surveilled "goes up exponentially," acknowledged Caproni, the FBI's general counsel.

But Caproni said it would not be rational for the bureau to follow the chain too far. "Everybody's connected" if investigators keep tracing calls "far enough away from your targeted bad guy," she said. "What's the point of that?"

One point is to fill government data banks for another investigative technique. That one is called "link analysis," a practice Caproni would neither confirm nor deny.

Two years ago, Ashcroft rescinded a 1995 guideline directing that information obtained through a national security letter about a U.S. citizen or resident "shall be destroyed by the FBI and not further disseminated" if it proves "not relevant to the purposes for which it was collected." Ashcroft's new order was that "the FBI shall retain" all records it collects and "may disseminate" them freely among federal agencies.

The same order directed the FBI to develop "data mining" technology to probe for hidden links among the people in its growing cache of electronic files. According to an FBI status report, the bureau's office of intelligence began operating in January 2004 a new Investigative Data Warehouse, based on the same Oracle technology used by the CIA. The CIA is generally forbidden to keep such files on Americans.

Data mining intensifies the impact of national security letters, because anyone's personal files can be scrutinized again and again without a fresh need to establish relevance.

"The composite picture of a person which emerges from transactional information is more telling than the direct content of your speech," said Woods, the former FBI lawyer. "That's certainly not been lost on the intelligence community and the FBI."

Ashcroft's new guidelines allowed the FBI for the first time to add to government files consumer data from commercial providers such as LexisNexis and ChoicePoint Inc. Previous attorneys general had decided that such a move would violate the Privacy Act. In many field offices, agents said, they now have access to ChoicePoint in their squad rooms.

What national security letters add to government data banks is information that no commercial service can lawfully possess. Strict privacy laws, for example, govern financial and communications records. National security letters -- along with the more powerful but much less frequently used secret subpoenas from the Foreign Intelligence Surveillance Court -- override them.

'What Happens in Vegas'

The bureau displayed its ambition for data mining in an emergency operation at the end of 2003.

The Department of Homeland Security declared an orange alert on Dec. 21 of that year, in part because of intelligence that hinted at a New Year's Eve attack in Las Vegas. The identities of the plotters were unknown.

The FBI sent Gurvais Grigg, chief of the bureau's little-known Proactive Data Exploitation Unit, in an audacious effort to assemble a real-time census of every visitor in the nation's most-visited city. An average of about 300,000 tourists a day stayed an average of four days each, presenting Grigg's team with close to a million potential suspects in the ensuing two weeks.

A former stockbroker with a degree in biochemistry, Grigg declined to be interviewed. Government and private sector sources who followed the operation described epic efforts to vacuum up information.

An interagency task force began pulling together the records of every hotel guest, everyone who rented a car or truck, every lease on a storage space, and every airplane passenger who landed in the city. Grigg's unit filtered that population for leads. Any link to the known terrorist universe -- a shared address or utility account, a check deposited, a telephone call -- could give investigators a start.

"It was basically a manhunt, and in circumstances where there is a manhunt, the most effective way of doing that was to scoop up a lot of third party data and compare it to other data we were getting," Breinholt said.

Investigators began with emergency requests for help from the city's sprawling hospitality industry. "A lot of it was done voluntary at first," said Billy, the deputy assistant FBI director.

According to others directly involved, investigators turned to national security letters and grand jury subpoenas when friendly persuasion did not work.

Early in the operation, according to participants, the FBI gathered casino executives and asked for guest lists. The MGM Mirage company, followed by others, balked.

"Some casinos were saying no to consent [and said], 'You have to produce a piece of paper,' " said Jeff Jonas, chief scientist at IBM Entity Analytics, who previously built data management systems for casino surveillance. "They don't just market 'What happens in Vegas stays in Vegas.' They want it to be true."

The operation remained secret for about a week. Then casino sources told Rod Smith, gaming editor of the Las Vegas Review-Journal, that the FBI had served national security letters on them. In an interview for this article, one former casino executive confirmed the use of a national security letter. Details remain elusive. Some law enforcement officials, speaking on the condition of anonymity because they had not been authorized to divulge particulars, said they relied primarily on grand jury subpoenas. One said in an interview that national security letters may eventually have been withdrawn. Agents encouraged voluntary disclosures, he said, by raising the prospect that the FBI would use the letters to gather something more sensitive: the gambling profiles of casino guests. Caproni declined to confirm or deny that account.

What happened in Vegas stayed in federal data banks. Under Ashcroft's revised policy, none of the information has been purged. For every visitor, Breinholt said, "the record of the Las Vegas hotel room would still exist."

Grigg's operation found no suspect, and the orange alert ended on Jan. 10, 2004."The whole thing washed out," one participant said.

'Of Interest to President Bush'

At around the time the FBI found George Christian in Connecticut, agents from the bureau's Charlotte field office paid an urgent call on the chemical engineering department at North Carolina State University in Raleigh. They were looking for information about a former student named Magdy Nashar, then suspected in the July 7 London subway bombing but since cleared of suspicion.

University officials said in interviews late last month that the FBI tried to use a national security letter to demand much more information than the law allows.

David T. Drooz, the university's senior associate counsel, said special authority is required for the surrender of records protected by educational and medical privacy. The FBI's first request, a July 14 grand jury subpoena, did not appear to supply that authority, Drooz said, and the university did not honor it. Referring to notes he took that day, Drooz said Eric Davis, the FBI's top lawyer in Charlotte, "was focused very much on the urgency" and "he even indicated the case was of interest to President Bush."

The next day, July 15, FBI agents arrived with a national security letter. Drooz said it demanded all records of Nashar's admission, housing, emergency contacts, use of health services and extracurricular activities. University lawyers "looked up what law we could on the fly," he said. They discovered that the FBI was demanding files that national security letters have no power to obtain. The statute the FBI cited that day covers only telephone and Internet records.

"We're very eager to comply with the authorities in this regard, but we needed to have what we felt was a legally valid procedure," said Larry A. Neilsen, the university provost.

Soon afterward, the FBI returned with a new subpoena. It was the same as the first one, Drooz said, and the university still had doubts about its legal sufficiency. This time, however, it came from New York and summoned Drooz to appear personally. The tactic was "a bit heavy-handed," Drooz said, "the implication being you're subject to contempt of court." Drooz surrendered the records.

The FBI's Charlotte office referred questions to headquarters. A high-ranking FBI official, who spoke on the condition of anonymity, acknowledged that the field office erred in attempting to use a national security letter. Investigators, he said, "were in a big hurry for obvious reasons" and did not approach the university "in the exact right way."

'Unreasonable' or 'Oppressive'

The electronic docket in the Connecticut case, as the New York Times first reported, briefly titled the lawsuit Library Connection Inc. v. Gonzales . Because identifying details were not supposed to be left in the public file, the court soon replaced the plaintiff's name with "John Doe."

George Christian, Library Connection's executive director, is identified in his affidavit as "John Doe 2." In that sworn statement, he said people often come to libraries for information that is "highly sensitive, embarrassing or personal." He wanted to fight the FBI but feared calling a lawyer because the letter said he could not disclose its existence to "any person." He consulted Peter Chase, vice president of Library Connection and chairman of a state intellectual freedom committee. Chase -- "John Doe 1" in his affidavit -- advised Christian to call the ACLU. Reached by telephone at their homes, both men declined to be interviewed.

U.S. District Judge Janet C. Hall ruled in September that the FBI gag order violates Christian's, and Library Connection's, First Amendment rights. A three-judge panel heard oral argument on Wednesday in the government's appeal.

The central facts remain opaque, even to the judges, because the FBI is not obliged to describe what it is looking for, or why. During oral argument in open court on Aug. 31, Hall said one government explanation was so vague that "if I were to say it out loud, I would get quite a laugh here." After the government elaborated in a classified brief delivered for her eyes only, she wrote in her decision that it offered "nothing specific."

The Justice Department tried to conceal the existence of the first and only other known lawsuit against a national security letter, also brought by the ACLU's Jaffer and Ann Beeson. Government lawyers opposed its entry into the public docket of a New York federal judge. They have since tried to censor nearly all contents of the exhibits and briefs. They asked the judge, for example, to black out every line of the affidavit that describes the delivery of the national security letter to a New York Internet company, including, "I am a Special Agent of the Federal Bureau of Investigation ('FBI')."

U.S. District Judge Victor Marrero, in a ruling that is under appeal, held that the law authorizing national security letters violates the First and Fourth Amendments.

Resistance to national security letters is rare. Most of them are served on large companies in highly regulated industries, with business interests that favor cooperation. The in-house lawyers who handle such cases, said Jim Dempsey, executive director of the Center for Democracy and Technology, "are often former prosecutors -- instinctively pro-government but also instinctively by-the-books." National security letters give them a shield against liability to their customers.

Kenneth M. Breen, a partner at the New York law firm Fulbright & Jaworski, held a seminar for corporate lawyers one recent evening to explain the "significant risks for the non-compliant" in government counterterrorism investigations. A former federal prosecutor, Breen said failure to provide the required information could create "the perception that your company didn't live up to its duty to fight terrorism" and could invite class-action lawsuits by families of terrorism victims. In extreme cases, he said, a business could face criminal prosecution, "a 'death sentence' for certain kinds of companies."

The volume of government information demands, even so, has provoked a backlash. Several major business groups, including the National Association of Manufacturers and the U.S. Chamber of Commerce, complained in an Oct. 4 letter to senators that customer records can "too easily be obtained and disseminated" around the government. National security letters, they wrote, have begun to impose an "expensive and time-consuming burden" on business.

The House and Senate bills renewing the Patriot Act do not tighten privacy protections, but they offer a concession to business interests. In both bills, a judge may modify a national security letter if it imposes an "unreasonable" or "oppressive" burden on the company that is asked for information.

'A Legitimate Question'

As national security letters have grown in number and importance, oversight has not kept up. In each house of Congress, jurisdiction is divided between the judiciary and intelligence committees. None of the four Republican chairmen agreed to be interviewed.

Roberts, the Senate intelligence chairman, said in a statement issued through his staff that "the committee is well aware of the intelligence value of the information that is lawfully collected under these national security letter authorities," which he described as "non-intrusive" and "crucial to tracking terrorist networks and detecting clandestine intelligence activities." Senators receive "valuable reporting by the FBI," he said, in "semi-annual reports [that] provide the committee with the information necessary to conduct effective oversight."

Roberts was referring to the Justice Department's classified statistics, which in fact have been delivered three times in four years. They include the following information: how many times the FBI issued national security letters; whether the letters sought financial, credit or communications records; and how many of the targets were "U.S. persons." The statistics omit one whole category of FBI national security letters and also do not count letters issued by the Defense Department and other agencies.

Committee members have occasionally asked to see a sampling of national security letters, a description of their fruits or examples of their contribution to a particular case. The Justice Department has not obliged.

In 2004, the conference report attached to the intelligence authorization bill asked the attorney general to "include in his next semiannual report" a description of "the scope of such letters" and the "process and standards for approving" them. More than a year has passed without a Justice Department reply.

"The committee chairman has the power to issue subpoenas" for information from the executive branch, said Rep. Zoe Lofgren (D-Calif.), a House Judiciary Committee member. "The minority has no power to compel, and . . . Republicans are not going to push for oversight of the Republicans. That's the story of this Congress."

In the executive branch, no FBI or Justice Department official audits the use of national security letters to assess whether they are appropriately targeted, lawfully applied or contribute important facts to an investigation.

Justice Department officials noted frequently this year that Inspector General Glenn A. Fine reports twice a year on abuses of the Patriot Act and has yet to substantiate any complaint. (One investigation is pending.) Fine advertises his role, but there is a puzzle built into the mandate. Under what scenario could a person protest a search of his personal records if he is never notified?

"We do rely upon complaints coming in," Fine said in House testimony in May. He added: "To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that's a legitimate question."

Asked more recently whether Fine's office has conducted an independent examination of national security letters, Deputy Inspector General Paul K. Martin said in an interview: "We have not initiated a broad-based review that examines the use of specific provisions of the Patriot Act."

At the FBI, senior officials said the most important check on their power is that Congress is watching.

"People have to depend on their elected representatives to do the job of oversight they were elected to do," Caproni said. "And we think they do a fine job of it."

Researcher Julie Tate and research editor Lucy Shackelford contributed to this report.

Michael Brown's Emails

Concerned about wardrobe and his dogs, Michael Brown preened while New Orleans sank. Should have gotten out of the job sooner, he sighs. True, and once again Congress was MIA when they approved this loser as head of FEMA.

http://blogs.citypages.com/ecassel/2005/10/index.asp

A Moment of Truth

The media is filled with Republican pundits, right-wring Christians, and arrogant politicians lambasting Patrick Fitzgerald for prosecuting Scooter Libby for lying to the FBI and the grand jury. Not a "real" crime, sniffs Sen. Kay Bailey Hutchison, who, surely, being from Texas, must know a lot about lies. Big lies, and how to tell them.

Why is it that these Republicans choose not to embrace the truth, and telling the truth, as a revered "family value" or American "virtue"?

It's because lying is part and parcel of their overarching policy-a policy that is to its core, aggressive, yet weak, self-serving and subversive, manipulative and antisocial. Just like their policies. All of them.

Though much research has been devoted to detecting deception, almost no one has studied the psychology of lying. Since lying is antithetical to the workings of the civil or criminal justice system, as Patrick Fitzgerald so eloquently stated, as a lawyer nothing is more odious to me than a lying client, judge, cop, juror, or witness. They mock the entire legal system. They attack it, they subvert it. They derail justice.

So, too, do our lying leaders mock, subvert, and derail the very foundation upon which democratic institutions are built-the truth.

Lying is an act of aggression-against the recipient of the lie. Lies hurt people, they hurt companies and shareholders (have you forgotten Enron?), and they hurt relationships. The liar does not care who or what he hurts.

At the same time that it is an act of aggression, lying is also an act of weakness. The liar is unwilling to bear the responsibility of the truth-telling. Lying is the lazy way, the selfish way.

Lying is an antisocial act, injuring the person (s) lied to and any relationships binding the liar and his victim. In the Libby matter, media stars Tim Russert, Matt Cooper, and Judith Miller were lied about. They don't seem to mind, perhaps because they are liars' enablers that call themselves journalists. Not once has Russert exclaimed against Libby crediting Russert as being his source for the Wilson-Plame connection.

But Patrick Fitzgerald didn't like being lied to. Fitzgerald knows that lying is self-serving. The liar puts his self-interest above that of government he works for, the people he is supposed to serve.

Lying subverts relationships. Once lied to, and we have been lied to over and over and over again by Bush and all who pass on his lies, we put no trust in the liar or the relationship. If we trust our government today, if we believe a word Bush or his cronies (including his media cronies) say, we are the bigger fools.

Lying is manipulative. The damage done by Bush and company's lying to manipulate the economy, the war, public opinion, and its own people, is unimaginable. We can't begin to what extent we-and the world has been harmed-because they lie.

In fact, one would be hard-pressed to find much of anything Bush has told the truth about in the past five years. I could fill an encyclopedia with the lies told day in and day out. Lies which are repeated to us as the truth by the lying press.

Lying is cruel. To the men and women headed for war -- you are saving the US from imminent destruction. To Hurricane Katrina victims, help is on the way.

The American people seem content to readily accept their government's subversion of our Constitution and laws, dismissal of its obligations to us, and manipulation of and aggression against us.

There is a reason why the religious right does not embrace truth-telling as one of the "values" and "virtues" of good Christians. It is, that version of Christianity, their politics, is aggressive, antisocial self-serving, manipulative, subversive, and cruel.

Think of the lies they have told senior citizens about the so-called Medicare prescription drug "benefit;" the lies about the terrorist "plots" they have disrupted; the lies about emergency preparedness; the lies that "help" is on the way to hundreds of thousands of Katrina victims; the lies that Bush is "spreading freedom" across the world. Lying is antithetical to freedom.

Jesus, Bush's favorite philosopher, said "Ye shall know the truth, and the truth shall make you free." This part of Jesus Bush does not embrace. And with good reason.

The Bush administration, and its loyal followers who blast the airwaves with their venal filthy lies, spread falsehoods because they know that as long as we accept the lies we are in chains. We cannot be free.

And chained we are. As good as Bush and company are at lying to us, we are better at lying to ourselves. Sigmund Freud's word for that was "denial" Americans are in denial in order to spare themselves the painful truth that we have a liar at the helm of the world's superpower. The liar not only hires liars, he lauds them, as Bush did Libby, as a great American.

So we lie to ourselves, because we can't bear the truth.

John Roberts and the Death Penalty

Categories: Imported

We have rightly heard a great deal of commentary on an important question: What would the confirmation of Judge John Roberts - who would take retiring Justice Sandra Day O'Connor's Supreme Court seat - mean for the right of privacy, and for Roe v. Wade?

In this column, I want to ask another important question: What would John Roberts's confirmation mean for the Supreme Court's death penalty jurisprudence?

My analysis suggests that it may mean a great deal.

Justice O'Connor's Recent Death Penalty Vote

In 2002, Justice O'Connor joined the majority in an important death penalty opinion, Atkins v. Virginia - which I discussed in detail in an earlier column. There, the Court held -- in a 6-3 vote -- that executing a defendant whom the jury finds to be mentally retarded is unconstitutional.

In this case, and in other recent cases that put limits on the death penalty, the Court majority cited evolving public "standards of decency" for its ruling, and based its assessment of those standards in part upon a survey of state and international death penalty law.

If Roberts takes O'Connor's seat, a single vote could make it even harder to make further progress in this area.

As I will explain below, there is reason to think a Justice Roberts will be quite conservative on the death penalty. Yet, further progress is required if the mandate of Atkins, to take just one example, is not to be an empty promise.

How Would a Justice Roberts Vote on the Death Penalty?

The public knows little about what Judge Roberts thinks about the death penalty.

On one hand, he is a staunch Catholic and the Catholic Church has often taken a stand against the death penalty.

On the other hand, in a February 1983 memo written while he worked in the Reagan White House, Roberts depicted Supreme Court death penalty appeals as, put bluntly, an annoyance and waste of time. He pointed out that the Supreme Court could significantly reduce its caseload "by abdicating the role of fourth or fifth guesser in death penalty cases."

Roberts was correct that by the time a state death penalty case gets to the Court it may have been evaluated three or four times. The trial court has made legal rulings in the case. So, probably, has a state appellate court. Then, in a last ditch effort, a defense team may have filed a habeas corpus petition in federal court.

But unlike all these courts, only the Supreme Court can decide to overrule prior Supreme Court precedent - as it did in Roper and Atkins. (Atkins reversed Penry v. Lynaugh (1989), in which the Court found that execution of the mentally retarded was not per se unconstitutional.)

So Roberts is not right that the Supreme Court is merely fourth- or fifth-guessing determinations made by the prior courts. It is making one entirely original determination, on which no other court has yet ruled: Should prior Supreme Court death penalty precedent be modified under the particular set of facts before it?

Today, the Supreme Court's docket is only about half of what it was when Roberts was writing the memo. So if he was truly worried about overcrowding the courts' docket with death penalty cases, that worry ought to have disappeared (though it seems we shouldn't look to Roberts to expand the Court's death penalty docket).

But if Roberts's real point was the Court should not take very many death penalty cases, because they are typically reviewed multiple times anyway, he may close even further the already- narrow gate that lets only a few death penalty cases reach the Court each year.

Yet, behind each of these appeals is a human being for whom the Court's decision means the difference between life and death. Should this individual's plea for review be framed simply as a matter of docket control?

Judge Roberts's Ruling in a Criminal Case Suggests Little Concern for Fairness

As a D.C. Circuit judge, Roberts had few occasions to decide criminal cases. But one was a remarkable for its outrageous results.

Washington D.C. police made local headlines when they arrested a twelve-year-old African-American girl, Ansche Hedgepeth, in a D.C. subway station. Her crime? She'd put a single French fry into her mouth - violating a ban on eating on the Metro. For this, she was handcuffed, taken to the station in the back of a squad car, and ultimately convicted.

In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts saw no constitutional violation - even though, anomalously, adults who committed the same offense, under the law, merely received a citation. Nor did he see any constitutional violation in the gross disproportion between what Ansche had done, and how she was treated by the police.

This decision, and Roberts's view that death penalty cases waste the Court's time, bode ill for any hope that Roberts might be more like Justice Kennedy than Justice Rehnquist (who dissented in both Roper and Atkins), when it comes to death penalty cases.

After all, Roberts clerked for Rehnquist. Perhaps he shares Rehnquist's view - expressed in his dissent in Atkins -- that the only inroads in the death penalty ought to be those made by state laws and state juries. In other words, according to this view, the Court should in effect abandon scrutiny of the death penalty on Fourteenth Amendment grounds and leave every state to its own standards of due process and cruel and unusual punishment.

In light of Roberts's likely role on the Court if confirmed, perhaps the conjunction of two impromptu remarks made last week by 85-year-old Supreme Court Justice John Paul Stevens was no coincidence. Speaking to the American Bar Association, Justice Stevens expressed dismay over the "serious flaws" in the country's use of the death penalty. He also mentioned that the retirement of Justice Sandra Day O'Connor was a "very, very wrenching experience" for him.

The First Reason Why Staying the Course Is Not Good Enough: Technology Cuts Against the Death Penalty

Readers may ask: Given that Atkins and Roper were significant advances in the Court's death penalty jurisprudence, will it matter very much if a more closely divided Court now does little in this area for a while?

The answer is: Absolutely. Though some progress was made on the unfair application of the death penalty in the last 30 years, more is needed.

Why? Justice Stevens pointed out two of the reasons in his speech to the ABA. And there are many more to add to these; I'll explore just one more, in this column.

First, as the Justice noted, we've increasingly seen death row inmates exonerated as innocent by DNA analysis. Now, granted, in some cases, DNA analysis may be able to prevent such mistakes from ever occurring again - mooting this issue for the future. But in many other cases, the possibility of future DNA analysis may be a compelling reason to keep the defendant alive -- for he may be exonerated in the future when DNA that currently matches neither his DNA, nor anyone else's in the system, is matched to a new arrestee. And of course, this can always happen with fingerprints; because not everyone's prints are in the system, unmatched fingerprints can always be matched to a new arrestee.

Our terrific technology, for these reasons, is a reason to wait until we know the truth - not a reason to kill now and ask questions later. America's technological excellence can and should mean a better quality of justice for its citizens.

The Second Reason Why Staying the Course Is Not Good Enough: "Death-Qualified" Guilt Phase Juries

Second, as Justice Stevens remarked, the Supreme Court allows prosecutors to control the jury in capital cases and seat only "death-qualified" fact-finders. That means that at both the "guilt" and "penalty" phases, judgments are made exclusively by jurors willing to impose the death penalty.

The Supreme Court has ruled, conversely, that the defendant is not allowed, over a prosecutor's obvious objections, to seat jurors who have qualms about capital punishment.

Behavioral science research into jury behavior has consistently found that jurors who are "death-qualified" and likely to impose the death penalty are also more likely to convict the defendant.

That's a violation of the Sixth Amendment's fair trial guarantee, and the Court should say so. At least the "guilt" stage jury - at the very minimum -- should be empanelled without regard to their respective views on capital punishment. To continue the current practice is a gross infringement of fundamental fairness.

The Third Reason Why Staying the Course Is Not Good Enough: The Supreme Court Needs to Further Refine Its Mandates

There is also a third area where progress is needed, though Justice Stevens did not explore it in his speech: The Court sometimes needs to revisit cases in order to give further direction as to how states carry out its rulings. To see why, it's helpful to look more closely at the case of Daryl Atkins - and what happened when it was sent back to Virginia.

Surely that ruling meant that Atkins received more justice in his second "sentencing phase" trial, back in Virginia state court?

Not exactly. On August 5, a Virginia jury delivered its finding in the resentencing of Atkins. It found, once again, that he was not mentally retarded, and thus could and should be executed.

Two possible reasons exist for this finding: the first, discussed above, that jurors are primed for the death penalty. The second has to do with the proof required to prove mental retardation.

Atkins left it to each state to define mental retardation. States have uniformly adopted the American Psychological Association's diagnostic criteria for mental retardation, drawn from The Diagnostic and Statistical Manual of Mental Disorders (DSM). And the current DSM requires that in order to be diagnosed as mentally retarded, a person must currently (1) score below 70 (with 100 being average) on one of the major standard intelligence assessments and (2) have functional impairments that are apparent in daily life, work, and/or educational settings to a degree consistent with the level of retardation diagnosed (there are four levels, ranging from mild to severe). Further, these factors must have been apparent before the individual reached the age of 18 years. The defendant has the burden of proving his mental retardation by a preponderance of evidence.

The difficulty in proving that last requirement is very often what sends mentally-retarded defendants like Atkins to their death. It forces them to prove their impairment is a developmental disorder, and not one that was caused by adult-onset factors like head injuries, accidents, or other processes that cause cognitive decline. Practically speaking, such evidence is hard to come by.

Few defendants will have been tested for IQ while a juvenile. Today, IQ tests are not done on public school students unless the students are being assessed for special education classes - a process that often results from teacher observation of the student over a significant portion of the school year, and from parental involvement. Many, if not most, capital defendants drop out of school or attend school erratically. Fewer grew up in families with the resources to track their educational and social needs.

Moreover, even if defendants were IQ-tested, or tracked into special-education courses as juveniles, records from year ago--20 years in the case of Daryl Atkins-- may not be available. Impressively, Atkins's team found several witnesses, including a schoolteacher who testified that she did not think that Atkins functioned on a "normal" IQ level. But there was no IQ test from his school years.

Finally, even the first requirement, a current IQ below 70, may be hard for genuinely mentally retarded defendants to meet. The Atkins case shows why.

At his first sentencing, Atkins had introduced expert evidence that his IQ score was significantly below 70-- it was 59, bordering between mild and moderate retardation. At that sentencing, the prosecution's expert, who did not administer an IQ test, said that he could tell from talking to him that Atkins was not retarded. The Supreme Court agreed with the Virginia Supreme Court in finding the prosecution expert's opinion "incredulous."

In preparation for his resentencing, Atkins scored between 70 and 74 on IQ tests administered by defense and prosecution experts, a score that put him clearly out of the diagnostic range for mental retardation. Ironically, Atkins's attorney and psychologist noted that his higher scores may be attributable to repeated testing, something they argued in sentencing.

The Unfulfilled Promise of Atkins and Similar Cases

A jury wanting to spare Atkins life--one not primed for death-- could have and maybe would have. But not this York County jury. Although his co-defendant had long ago been given life in prison, Atkins once again was sentenced to die.

Perhaps the Supreme Court needs to revisit Atkins's case, or another capital case involving a mentally retarded defendant, and scrutinize the methods by which states make findings of mental retardation. Maybe the criteria being used are unfair to defendants like Atkins who may be retarded but cannot prove it under existing standards. (The Court has often heard cases involving the same defendant, with different issues, in order to refine its death penalty jurisprudence.)

The Court might mandate that states do what some (those that are not as death-happy as Virginia) have already done, and require that a judge make a finding of mental retardation, not a death-qualified jury. Once a judicial finding is made, the death penalty would not be an option for the prosecution.

In the meantime, the trial judge ordered that Atkins be executed on December 2. His attorneys may try to bring his case before the Court once again, perhaps to challenge some of the issues I have raised.

If so, would a Justice Roberts vote against reviewing Atkins's case yet again? Most likely. It is safe to assume that Daryl Atkins, and defendants in similar positions, will find one less justice willing to grapple with what Justice Stevens called the "serious flaws" in the death penalty.

Why the Right Gets It Wrong

Categories: Imported

Just running down the alphabet, I can describe the right-wing conservatives and corporations running our country: authoritarian, bullying, closed-minded, demanding, entitled, farcical, gutless, hypocritical, inconsistent, jarring, kowtowing, lame, mean-spirited, nasty, oppressive, power-hungry, quixotic, radical, sanctimonious, tyrannical, unconvincing, vicious, weak, xenophobic, yellow-bellied and over-zealous.



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To hear these carriers of the torch of truth tell it, truth is a matter of black and white. They would have you think it is a "for-us-or-against-us world," as George W. Bush asserts. But life is not that way. We don't have to go beyond the president's so-called "war on terror" to find an example: consider our two-faced dealings with Saudi Arabia. Condi Rice and Donald Rumsfeld say the Saudis are "with us," but do not admit they are "with us" because we line their pockets with energy dollars.

The right wing gets it wrong because they rely on expediency - getting what they want, when they want it. There is no honest searching for truth because, to them, truth is variable. For instance, Sen. Bill Frist, R-Tenn., has stood by President Bush for five years on stem-cell research, insisting it is an immoral trade-off of killing a baby in order to save an old fogey from Parkinson's. Last week, Frist redefined stem cells and embryos. I am sure his change of heart was driven by some nefarious scheme to put more money in the coffers of the pharmaceutical or medical industry.





This sort of expediency explains why the right wing is so inconsistent. For ambassador to the United Nations, they are willing to install a bigot who despises the body. For Supreme Court justice, they support a man who has argued vociferously for stripping the Supreme Court of jurisdiction to hear cases arising under the 14th Amendment. And before he was a Supreme Court justice, Clarence Thomas was installed by conservatives as head of the Equal Opportunity Commission - this despite the fact that, judging from his decisions, Justice Thomas abhors equal opportunity.

This illogic and hypocrisy extends even to the naming of many recent laws. A 1,400 page document that strips law-abiding Americans of basic rights guaranteed under the Bill of Rights is called the "USA Patriot Act," so that those who challenge their loss of liberty will be unpatriotic by definition. Legislation that gives power companies authority to pollute the air is called "Clear Skies." And what is in the "energy" bill? Billions in subsidies to the oil and gas industries at a time of record profits - and almost nothing to reduce our dependence on foreign oil.

The right gets it wrong because they are authoritarian. There is no compromising or balancing of ends with means; it's "my way or the highway." In every disagreement, they bully their way to victory. And like the good children of authoritarian parents, the right's followers respond with unwavering loyalty to the demands of their leaders, even when those leaders act against interests of their country.





To be fair, the left enables this waste of time and money by failing to choose their battles. Like all good victims, we let the bullies push our buttons. Before we know it, we have been bloodied and bruised fighting a fight that we should have skipped in the first place. Consider the quest for records from Vice President Dick Cheney's so-called "energy panel." A third-year law student could have read the regulation cited by public interest organizations and found that Cheney's chewing the fat with the oil companies was not a "record" they could secure by lawsuit.

For the right, life is all about power - the end game of authoritarianism. There is no god but their God, no truth but their truth. The Federalist Society, an organization of right-wing zealot attorneys, is embedded deep in the Justice Department and the federal court system. They contend that they alone can channel the intent of the founding fathers in the Constitution.

The right is wrong on just about every issue of the day. Sensible Americans, few though we may be, had better figure out a way to disarm the ideological bullies and return reason and pragmatism to government and American life

Fenced Out of the Fourth of July

Categories: Imported

By ELAINE CASSEL

On July 4, 2003, I took my customary bike trip into DC from my home in Virginia. Along the Potomac River, across the bridge, onto the "National Mall," as it is called. The strip of land that runs from the Lincoln Memorial to the Washington Monument. South of the mall is a beautiful area known as The Tidal Basin, a lake of water surrounded by walkways and cherry trees given to the American people by the Japanese government. Oh, and at one end of the Tidal Basin, the Jefferson Memorial and the smaller memorial to George Mason, father of the Bill of Rights.

July 4, 2002, the first since 9/11, the nation was on "orange alert." I knew security would be "tight," because the news was full of it. But I did not realize what that meant until I arrived at the mall only to be turned away. The mall was "closed" for a bomb search. Now, I don't know how they were searching for bombs or what kind of bombs, but I guess the cops were in the trees and in the tunnels. Who knows? I hear it opened hours later.

There was nothing for me to do then but reverse directions, come back over the 14th Street Bridge, and return to the relative calm of Alexandria, Virginia (that was before "terrorist" trials took over the town, and barricades erected here to keep God only who or what knows out). Before I crossed the bridge, I called my daughter. Her childhood was filled with July 4's on the mall-from the time she was a infant, up to the prior year when we all (grandkids, husband, friends) watched the fireworks from the federal courthouse where she was working at the time. Little did I know that that may be the last fireworks any of us saw on the mall.

I called her and told her how a chill had come over me. Helicopters and fighter jets were omnipresent. What a different 4th. So upset was I, that I paid no attention to what I was doing and ended up sprawled across the 14th St. Bridge with a broken arm. So much for July 4, 2002.

So, at 8 am on July 4, 2003, the nation no longer on "orange alert" and George Bush spending the day in Ohio raising money, I set out to see what was happening in DC.

Beginning at National Airport all the way to the bridges, double wooden fence had been erected between the George Washington Memorial Parkway and the river. People would have to enter through "checkpoints."

There were cops at the marina, cops at the airport. On the bike path itself, which runs between the Potomac River and the Parkway, there were cops on foot ("passing on the left," I yelled, for which I got a threatening look), cops on bikes. To my left, on the grass, cops on horses. To my right, in the river, cops in boats. On the riverbank, cops in tents, cops in trucks. Overhead, cops in helicopters.

To my surprise, Memorial Bridge, which lies at the foot of the Lincoln Memorial, was closed to cars. Bikes could get in. But not before passing through "security." As I stood deciding what to do, cops approached me. Step forward, ma'm, he said. I looked at him. Did you hear me? I heard you, I said. What's this all about? I don't answer questions, I just do my job. Step forward. By then, several cops, menacing looking, too, surrounded me. Not your typical nice park police. Get off the bike, one said, and I did. He unzipped the carrier, took out the wallet and cell phone, and told me to step aside and come through the metal detector. Then I got the "wand treatment." You can leave now.

I circled the entire mall and saw more cops than people. While there were no passenger cars, there were plenty of police cars and trucks. Truck with satellite dishes. Trucks with more fencing to fence out the people.

I made my way along the Tidal Basin to the Jefferson Memorial. Cars were trying to park and were being turned away, but not before they were searched. They would have to drive to other side of the US Capitol, or along Maine Avenue, park, and walk the dozens of blocks back to the Memorial if they wanted to visit it.

Oh, yes, you could visit the Memorial. A large tent staffed with dozens of cops, a walkway with a metal detector, a place to have your backpack searched-that's all that stood in your way. A large sign said, "Memorial open. Pass through security." I don't believe in an afterlife, but if there is one, I hope Jefferson is watching and shedding a tear.

I passed on the opportunity to commune with him. Not before thinking how life had changed forever in the nation's capital. Not because of 9/11, not because of Osama bin Laden, not because of Saddam Hussein. But because George Bush, the bully, the tyrant, the cowboy who highjacked the election, George Bush had hijacked the 4th of July.

Now, two years later, I still haven't been back to the Mall--not for the 4th, not for any reason. And I am not going today. The fences were in place more than a month ago, lining the George Washington Memorial Parkway. Security cameras are mounted on trees, stoplights, and rooftops. There weill be hundreds and hundreds of cops lining the streets, infiltrating the crowd. They will be looking for "terroroists," and they know one when they see one. So they tell us.

Tonight, after fireworks, people leaving the mall in their cars will be directed along "evacuation" routes--to test the city's emergency evacuation plan (I wonder where they are going to have the people run to? The suburbs? That will save them from a terrorist attack?).

Brave souls trying to get on the mall will pass through numerous security "checkpoints," with all bags and backpacks thoroughly searched. I don't know what it takes to get singled out for special "security measures," but I am betting it could be certain types of food or, heaven forbid, reading material to while away the waiting for the fireworks.

This July 4th I am biking, but not to the mall. I will bike to George Washington's home a few miles from mine, Mount Vernon. I will stand at the gates and wonder what George would make of the tyranny that another George has created not just in Washington, DC, but around the world.

July 4th now for me is a day of mourning, not celebration.

Jeb Bush, Still Playing Politics Over the Dead Body of Terri Schiavo

Categories: Imported

On March 31, Teresa "Terri" Schiavo died. But the controversy over her case, it turns out, may live on - not only in the media, but perhaps in court, as well.

On June 15, Pinellas County Medical Examiner Jon Thogmartin released his long-awaited, thirty-nine-page autopsy report on Terri - a report that included extensive evidence from neuropathologists who had examined her brain and spinal cord.

The report's findings, in general, supported the position of Terri's husband, Michael - as opposed to that of her parents, who had suggested she had shown signs indicating significant brain activity in her last days. It is unsurprising, then, that within hours of the report's release, Terri's parents denounced it as inaccurate. (Florida Governor Jeb Bush, however, has not yet challenged the report, and may never do so.)

In particular, the report showed that, as over a decade of court wrangling had already proved, Terri had been in a persistent vegetative state (PVS). Indeed, the report also found that her brain had atrophied to half normal size, and that she was blind, the visual areas of her brain having been destroyed.

Nevertheless, the autopsy left an opening for politics to once again insert itself into the case - prompting Gov. Bush to instruct the state's Attorney General to investigate Michael Schiavo.

As I will explain, there is no good reason to investigate. Rather, this investigation is simply a continuation of the politics that have always surrounded the Schiavo case, as I argued in an earlier column for this site.

Nationwide, as much as 70 percent of the American people believe that Congress had no business stepping in the Schiavo case in the first place. And now, Americans' message is clear: Let's close the book on this tragic situation, and go on to address all the other pressing issues we must confront. But, apparently blinded by ambition, Gov. Bush is not listening.

A New Mystery: The Cause of Terri's 1990 Collapse

Although it resolved the debate on Terri's condition, the autopsy report, unintentionally perhaps, reopened the debate on the reasons for Terri's collapse on February 25, 1990. That incident stopped her heart and deprived her brain of oxygen for a period of time sufficient to leave her in a vegetative state.

It had been thought by many that Terri had had an eating disorder, bulimia, that had dangerously lowered her potassium levels. But Thogmartin found no evidence of bulimia - a disorder that can, for instance, leave traces on the esophagus. Moreover, like many investigators before him, Thogmartin did not find any evidence of any kind of trauma that could have caused Terri's collapse.

So why did Terri collapse - if not as a result of bulimia or trauma? It's not clear.

And, more to the point, why did her collapse transform her into a PVS patient? Possibly, that result may have been due to the treatment she received, or failed to receive, after her collapse.

It was on this theory that Gov. Bush called on Florida's attorney general to investigate Michael Schiavo, on the speculation that he might have delayed in calling for emergency assistance the day of her collapse.

It's true that Michael gave conflicting times, as much as 30 minutes apart, when asked when he called 911. But as he testified in prior court hearings, that's because he had to estimate. Understandably, he was not looking at his watch when his wife collapsed and he, presumably, frantically tried to get help for her.

Recall the last emergency situation you were in - can you remember exactly when it began, when it ended, or how long it lasted? Doubtless, you remember the sequence of events, but could you reconstruct a timeline? Time can seem to distort in an emergency - with events happening much more slowly than they actually occurred. A quick car accident can seem to take forever, for instance; time can seem to virtually stop.

The New Investigation of Michael Schiavo: An Abuse of Executive Power

Michael Schiavo not only has provided a credible explanation for the different times he gave for his 911 call; he has also been found, repeatedly, by judges, to be telling the truth about issues surrounding Terri's death.

Terri's parents had long accused Michael of causing Terri's initial collapse. Then, after the collapse, they have accused him of abusing and neglecting her in the years between her hospitalization and her death. These cruel charges are rebutted by the fact that Michael tried all kinds of therapy for Terri in the early years after her collapse, none of which helped her.

Florida authorities under the control of, and presumably sympathetic to, Gov. Bush, repeatedly investigated Michael, and found no evidence to support any allegations against him. Governor Bush must be well-acquainted with these prior investigations and their results, as he repeatedly called for them and repeatedly cited them as proof of his concern for Terri. Why, he even called for one more investigation in the last days of Terri's life!

Further, the reports and transcripts absolving Michael of any wrongdoing are repeatedly cited in the very autopsy report that the Governor says prompted him to call for yet another investigation.

Governor Bush Should Confine His Campaigning to the Editorial Pages

This call for a new investigation has nothing to do with the autopsy report. The real motive is ambition - Jeb Bush's political ambition.

But that is no reason to continue to ruin the life of a private citizen whom no court has ever found to have done anything wrong - and who has said, all along, that he only fought to honor his wife's wishes.

Ambition, though, is powerful - and Jeb Bush may aspire to the Presidency. Indeed, according to E. J. Dionne of the Washington Post, a source floated to Dionne the suggestion that Republicans are considering a John McCain-Jeb Bush ticket for the 2008 Presidential race. If so, that would set up a possible Jeb Bush run for the presidency - even one as early as 2012, if McCain, who'd then be in his mid-seventies, declined to run again.

Ambitious as he is, Gov. Bush ought to keep his campaigning based on the exploitation of the Schiavo tragedy out of the courts. He is free to use the media to continue to cater to his political base, as he has already done. For instance, last week when the New York Times ran an editorial commenting on the autopsy report and the politics that embroiled both Bush brothers in a family matter, Gov. Bush responded with a fiery letter in his own defense, in which he promised to continue to defend the "rights" of every "vulnerable" citizen.

Gov. Bush should rethink his call for yet one more investigation into Michael Schiavo. After over a decade of litigation, and both state and federal intervention, his efforts to make Terri's husband into a villain--and himself into a hero--have failed.

His outright stubbornness on this issue demonstrates his continuous catering to the extreme elements in the Republican Party. To win higher office - even to gain a spot on that hypothetical McCain ticket - he will have to please moderates as well, and do so by taking on issues that are appropriate for politicians to tackle.

End-of-life family issues are not among them. 

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