June 2003

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Three Days in Kentucky

Filed under: Imported

I took the weekend off and visited old friends in Lexington, Kentucky. I had intended to write from there so as not to miss two days of  posting to this blog, but the distance between Washington, D.C. and Kentucky consisted of much more than miles alone.

 

Simply, once there, I had no inspiration.  My hosts did not have home newspaper delivery—and if they had it would have been local papers from Louisville or Lexington, as there is not home delivery of the New York Times on the farm where they lived.  Their Internet connection was via modem dialup—no cable or DSL out there in the hills where the horses and cattle roam on the limestone rich bluegrass range.

 

It took so long to access the home page of The Washington Post that I had all but lost interest by the time it appeared. And gazing out on the steep hillside covered with wildflowers rendered the headlines of the Post most unappealing.  I clicked off the Internet connection and went to have coffee on the porch and watch the horses graze in the tall grass.

 

My friends had moved from Washington, DC. three years ago.  Both the typical Washington professional, politically savvy and somewhat sharing my views, I asked them what I write about—civil liberties, war on terror, unjust justice—resonates in Kentucky.  Quite simply, nothing, they said.

 

Oh, it's not that the people don't care, they said. It is that they live life. They work hard, count every dollar, and care more about family and livestock than politics and policy.  Civil liberties are but an abstraction, they explained, as long as the government is not an obvious presence in their everyday lives.  But try to take away their guns, and they will turn libertarian.  Support for Clinton faded with gun control.   They are not in favor of incarcerating everyone for the slightest offense.  Oh, sure, pedophiles and murderers, maybe they ought to be incarcerated. But drug users and small-time dealers?  Several people I met while there had family members caught in that penal trap, and they considered it a waste of government money and energy.  They don't need a "peace officer" to right every wrong. 

 

An evening with friends of my friends—a  couple educated not in college but by extremely hard  lives—provided some insights of a personal nature.  The man said that the origin of most problems arose from people "broadcasting when they should be tuning in."  In recounting my recent heartbreak of a romantic nature, his wife, a salt-of-the earth-mother of wisdom, chided me for responding to the hurt with mere words.  "IIf he had done me that way, I would have kicked his ass so hard he would have had to have my foot surgically removed. Where's your head, girl?" 

 

She had me in stitches as she dramatized a recent encounter with a snake in her perennial garden.   What did you do when you realized you had stepped on a snake, I asked? Reaching into her shorts pocket, she pulled out a six-inch knife and stabbed it into the ground.  "That's what I did," she said, as I looked in amazement at the knife sticking out of  my friend's lawn.  As if to say to me, "What would you have done, talk to it?"  I want to be more like you, I thought!  A kick-ass woman--with a knife and a sharp tongue. 

 

She talked about how she was the only of her several siblings who made a decent life for herself, in spite of extreme childhood deprivation and abuse. For her, being a mother "is the most important thing I will do in my life."  What makes you different from your brothers and sisters, I wanted to know?  Again, a straight-talking answer, devoid of psychobabble.  "So my girls would not have a no-count mother like I had."

 

That evening, on a country porch under a starlit sky, I stumbled upon an essential difference in what I do and how they live.  Life for me inside the Washington, D.C. beltway consists of, in the words of my friend who retired from government, "spinning the spin."  But talk is cheap in the hills of Kentucky. Real people live real lives and deal with real problems in concrete ways.  They care about the rain, the hay crop, the horse that went lame, the fence that needs mending, and the cow with the sick calf.   They love their kids--and each other. There, Sunday is still a day for going to church and having dinner with grandparents and aunts and uncles.  Summer is for swimming holes, making hay, breaking yearling horses, growing vegetables, and making preserves. 

 

Three days in Kentucky—where the skies were bluer, the night sky clearer, and the future brighter than the one I read and write about.  Where ignorance was, for three days, indeed bliss.

 

Tomorrow, I will be back to writing about civil liberties, refreshed by a much-needed respite from bad news and gloomy prognostications.

Posted by Elaine Cassel at June 30, 2003 5:14 AM

 

Update on Zacarias Moussaoui: 4th Circuit "Invites" Government Contempt

Filed under: Imported

In a suprise ruling, the 4th Circuit Court of appeals dismissed the government's appeal of Judge Leonie Brinkema's ruling that it produce a witness that might exculpate alleged 9/11 hijacking conspirator Zacarias Moussaoui.

Moussaoui's court-appointed attorneys (who act in spite of Moussaoui's pro se representation, as Judge Brinkema does her duty to try to see that some semblance of justice is done in this case) argued that the government's appeal of the order to produce the witness (Ramzi Binalshibh, the self-described coordinator of the attacks who is in federal custody) was not "ripe" to be heard at this  time. Rulings having to do with discovery (access to witnesses, depositions, and the like) generally are not appealable until after a final verdict. The reason? Because the action complained of may be mooted by the final outcome.

By refusing the appeal, the very conservative 4th Circuit should not be seen as supportive or Moussaoui or unconvinced of the government's argument that it, and it alone, will tell the judge and the defendant what it needs to know about the case.  National security trumps all law, all rules of procedure and, indeed, the Bill of Rights, according to John Ashcroft.

I imagine the 4th Circuit agrees with that, given their ruling in the matter of denying Yasir Hamdi, an American citizen declared an "enemy combatant," the right to see an attorney.  I think what the 4th Circuit has in mind is this: the government will, of course, refuse to produce the witness; Judge Brinkema may find the government in contempt of court; the government will appeal the contempt finding to the 4th Circuit; the 4th Circuit will do its national security dance--bowing and curtseying to the almighty Ashcroft.

Some say that the government may just snatch Moussaoui from Alexandria, Virginia and send him to Guantanamo and try him there.  With Lord High Executioner Paul Wolfowitz presiding.  I don't think so - but I may be dead wrong. I think the government wants to take this one all the way to the Supreme Court. For whoever ultimately loses at the 4th Circuit will ask the Supremes to have a crack at it.  Not many of them will deny Ashcroft his plan to bury the Constitution in the name of "national security.

 

Posted by Elaine Cassel at June 27, 2003 12:16 AM

 

Presenting--The Honorable Paul Wolfowitz, Lord High Executioner

Filed under: Imported

As I was reading an article about the Alien and Sedition Act (the law that the Federalists pushed through the Congress on June 25, 1798 in order to quell rebellion against its growing power), and thinking about how its essence resembled the intent and effect of the USA Patriot Act, this news flash came across my email:

"Defense deputy gets authority for military tribunals."

I did not have to open the email to learn who it was. It could only be (and it is)--the one, the only, the unhonorable, the dissembling, and the anti-constitution autocrat, Paul Wolfowitz.  He will run the military tribunals in Guantanamo Bay, Cuba, or wherever else outside the US Rumsfeld chooses to try these poor souls.

Seems that Rumsfeld has his hands busy with this "untidy" war (I thought it was over and that we had won?) in Iraq that just won't quit. With those ungrateful Iraqis not happy with American occupation, and the concomitant lack of energy, money, and food.  I digress.

According to CNN News, Wolfowitz will exercise key powers in the commission process. After the chief military prosecutor drafts charges against a prisoner (CNN, of course, referred to this hapless person as a "detainee"--talk about dissembling), Wolfowitz will "approve" the charges and send the detainee to trial.  So he has already served as chief prosecutor, grand jury, and presiding judge.

As appointing authority, he also will select military officers to sit on commissions. If commission members cannot resolve matters related to procedures, motions or facts, Wolfowitz will make the final decision.  There you go, a judge again. The article did not say that Wolfowitz would carry out the executions (and there will be plenty of them, you can be sure, in secret, as will be the trials), but you can bet he will. Or wants to. Or maybe he does not want to get blood on his white shirt or stain his gold cufflinks.  But by now, he has risen to the status of Lord High Executioner in this most bizarre of legal systems.

Whatever, there you have it, justice American style.  A criminal court created by Bush, run by the Pentagon, and with "laws" drafted in consort with Ashcroft, Chertoff, and minions at the Department of Justice. The trials will be in secret.  The chief defense attorney is a reluctant officer who had been praying for the prosecutor's position (won't he give some zealous defense?).  American defense attorneys, if any prisoner can afford one, will have to swear a vow of allegiance to Rumsfeld, of course, agree to a lifetime gag order, and stand by while certain proceedings against his client are held in secret, out of his presence.  (What lawyer worth his license would agree to this? None that I would want, that's for certain.)

Foreign news sources have reported that execution chambers are under construction.  Bush and Rumsfeld are said to be deciding who the lucky ones are to be tried in this mockery of "justice." 

And you should be wondering, as Independence Day nears, how we have come to this under our Emperor George Bush II.

So on the anniversary of the passage of the Alien and Sedition Acts, we witness a sequel of a government so afraid of its "enemies" (or so they say--we will never hear the evidence) that it has to create a caricature of a "legal" system and try them in secret.

Why don't they just drop the charade, line up the prisoners, and shoot them?  Bring on Lord Wolfowitz with his rifle--or maybe he would prefer a sword?

Posted by Elaine Cassel at June 26, 2003 4:14 AM

 

Federal Judge Quits in Disgust

Filed under: Imported

Judge John S. Martin, federal district court judge in New York City, is hanging up his robe and walking away from the bench.  Thirteen years working in an unjust justice system has left the former prosecutor disappointed in how little good he could do for the criminal defendants who came before him for sentencing.

In an opinion piece in the June 24, 2003 New York Times, Martin despairs over mandatory sentencing guidelines, set by people--few of them judges--handpicked by Congress to implement draconian sentencing laws.  Judges are not much more than bean counters at sentencing. Used to be that a defense attorney like myself spent a great deal of time and effort in putting facts before the judge at sentencing--facts that would convince the judge to tailor a sentence that would give the defendant something to live for, something to get out for. 

Not anymore. Judges mostly have it all laid out for them in the guidelines.  And when they deviate from the guidelines, it is usually because the prosecutor can prove that the defendant did something during the course of the prosecution that renders him deserving of an "upward enhancement" of his sentence.  Even if a defendant pleads guilty, he could get time tacked on to his sentence for insisting on his right to counsel, or by refusing to plead at the time the government wanted him to do so. 

Martin is particularly bitter about drug sentencing laws. For drug offenses, according to recent data, account for about 60 % of federal prisoners.  It is the harsh punishment for drug use and addiction that has driven up our incarceration rate to over 2 million men and women. We incarcerate more people for more crimes than any other country in the world.

And the sentencing is in the hands of the U.S. Sentencing Commission, behold to Congress, beholden to the President.  Politics as usual.

The last straw for Martin came earlier this year when tucked into the Amber Alert legislation was a requirement that federal judges who deviate from the sentencing guidelines must report themselves to John Ashcroft. 

And heavens know where that is going; it seems as if the errant judges are to be seen as naughty children who must report to their authoritarian father and await their punishment. You can't obey John and at the same time use common sense or demonstrate compassion and decency. For all John's talk of Christianity, he is one mean man when it comes to the weaknesses and suffering of others.

Last week the Supreme Court upheld a government regulation that allows prison wardens to sharply curtail visitation of inmates and, in some cases, to allow it not at all.  We don't want them to have anything to look forward to; we don't want them to have anyone to love them.  And Judge Martin notes how the harshness of sentencing laws falls heaviest on the families of the defendants

Martin did not have a reputation as an easy judge. In many cases he imposed maximum sentences, wishing he could have given more (in one case, he said he would have favored the death penalty had it been an option). But, he says, he is not in favor of  sentencing without common sense or discretion. "I am not in favor of locking up everybody for life," he says--and that puts him out of step with Congress, the White House, and Ashcroft's Department of Injustice.

Martin says he may organize federal judges to lobby Congress for justice in sentencing. For now, though, he has had it with our "unjust criminal justice system."

 

 

Posted by Elaine Cassel at June 25, 2003 5:04 AM

 

Nazis-1; Californians-0.

Filed under: Imported

Monday, June 23, was a  big day at the Supreme Court.  The Court handed down five opinions. Two of these related to the University of Michigan affirmative action policies. Inasmuch as legal minds far brighter than mine have already weighed in on these cases (and will continue to do so for months to come), and inasmuch as affirmative action is not really my beat, I am not going to comment on those opinions--at least not now.

A case that ruled that libraries must use internet filters that shut down porn sites (and what other sites the filters target) is of critical importance to civil libertarians and will be the subject of a future article.

But for now, I want to comment on, and urge you to read, the sleeper case of the day - the one in which California's law that provides information about insurance companies that might be liable for claims of Holocaust victims was stricken by the Court because it interferes with the President's "foreign policy." The case is American Insurance Association vs. Garamendi.

In 1998 the US entered into an agreement with Germany to set up an organization, the International Commission on Holocaust Era Insurance Claims (ICHEIC), to hear claims of Holocaust survivors and victims and to pay some claims up to a certain limit. This was not a formal treaty and it did not by its terms prohibit alternative remedies for survivors or victims of the Nazi regime who sought compensation for the confiscation of Jewish bank assets, the use of Jewish slave labor, and the failure to pay Jewish insurance claims. California enacted a law that allows residents to ascertain which insurance companies might have been insuring Nazi interests such that they could be looked to for reimbursement.

The Supreme Court ruled that the law must be stricken because it interferes with the Executive's agreement with Germany regarding the settlement of claims through the ICHEIC (it is noteworthy that few claims have been settled by this body).  Affidavits of "sub-cabinet" level officials were filed with the Court assuring the court that the California law impedes the President's ability to speak with "one voice" about foreign policy. 

Justice Ginsberg wrote a strong dissent in which she was joined by--are you ready for this?--Justices Scalia, Thomas, and Stevens (no surprise, as to him).  The dissenters noted that there was no legal precedent for holding that an agreement like this one, made outside the statutory and constitutional framework or foreign treaties, should be preempted in the name of "foreign policy."  The dissent reminds me of the lone voices on federal courts who have recently (and likewise, unsuccessfully) called for judges to conduct judicial review and not merely assent to the President's claim of national security justification for secret detentions, trials, deportations and denial of trials and counsel. 

(Along those lines yesterday the Justice Department named another "enemy combatant, removing him from federal court jurisdiction, where he was facing prosecution for minor fraud charges, to an undisclosed location. Ali Saleh Kahlah al-Marri, 37, has been in federal custody since 2001. He had a lawyer.  Now he has none. He had a trial date. Now he has none.)

If you have been paying attention to the Bush administration's preemption of laws since 9/11 (all in the name of national security and fighting a "war on terror"), you will see the Garamendi decision as an obvious--but nonetheless frightening--extension of its desire to overthrow any law--state, federal, or international--that interferes with its supreme power, with its "national" interest, be it national "security" or national "foreign policy."

It is ironic that it scores a win on a case dealing with victims of the Nazis, for many commentators are noting the uncanny resemblance of the Bush administration to a fascist regime, in which wars are waged in the name of "national" interest (Bush's preemption doctrine). 

And civil liberties, even life itself, are lost in the name of "national" security.

Posted by Elaine Cassel at June 24, 2003 5:03 AM

 

Bush's Racial Profiling Ban: A Musical Reenactment

Filed under: Imported

After reading my article, a reader in Houston with a lively radio show created a musical and dramatic riff on my comments about Bush's racial profiling "ban."  Though I did not have the date in mind when I wrote the article, he noted that it was ironically appropriate for publication (and performance) on Juneteeneth.

It is hilarious--and includes John Ashcroft singing. 

It takes a lot to make me laugh--but this did the trick.

Hope you like it!

Posted by Elaine Cassel at June 22, 2003 5:29 AM

 

Yo, Who! Out With the Grinch!

Filed under: Imported

Someone asked me this week if writing about what I write about is depressing. Yes, as a matter of fact. It gets me down, especially after a week like this one, with the courts once again giving Bush and Ashcroft victory, with the Democrats doing dumb things like asking Bush to let them recommend Supreme Court candidates (the problem with Democrats is that they don't know how to fight dirty like the Republicans), only to be told by Ari to "read the Constitution" to see how justices are appointed.   The Constitution, indeed, that took a beating this week.

To break from the mold of gloom and doom, I pass along a bit of whimsy penned by Doug Goodkin, with a little help from Dr. Seuss (the colors are mine).

May it bring a little cheer to your weekend, and may you be more Who than Grinch.

The Grinch, Revisited, by Doug Goodkin

The Whos down in Whoville liked people a lot,
But the Grinch in the White House most certainly did not.
He didn't arrive there by the will of the Whos,
But stole the election that he really did lose.

 Vowed to "rule from the middle," then installed his regime.
(Did this really happen, or is it just a bad dream?)

He didn't listen to voters, just his friends he was pleasin'
Now, please don't ask why, who knows what's the reason.
It could be his heart wasn't working just right.
It could be, perhaps, that he wasn't too bright.

But I think that the most likely reason of all,
Is that both brain and heart were two sizes too small.
Whatever the reason its very bad news,
To have a someone in power who ignores the Whos' views.
 
But the Whos shrugged their shoulders, went on with their work,
Their duties as citizens casually shirked.
They shopped at the mall and watched their T.V.s
They drove about town in their big S.U.Vs.,

They read the same papers that ran the same leads,
 Reporting what only served corporate needs.
(For the policies affecting the lives of all nations
Were made by the giant U.S. Corporations.)

Big business grew fatter, fed by its own greed,
Paying millions of dollars to those without need.
But amidst all the apathy came signs of unrest,
The Whos began asking 'what's fouling our nest.'

And the people who cared for the ideals of this nation
Began to discuss and exchange information:
They learned the truth missed by the corporate press
By using the internet and alternate press.

They learned about NAFTA and CIA schemes,
About huge expense for changing regimes.
They publish, create Websites, and use their e-mail
(Though Homeland Security might send them to jail!)

What began as a whisper now grews to a roar,
These things going on they could no longer ignore.
In their thousands they gather to voice their dissent
Of the bully-boy tactics of their "President."

The Whos came together, sang "Not in our name!"
Challenging power that causes them shame.
One by one from their sleep and their slumber they woke
The old and the young, all kinds of folk,
 
The black, brown and white, the gay, bi- and straight,
All united to sing, "Feed our hope, not our hate!

Stop enriching the rich and start feeding the poor!
Stop stockpiling weapons and aiming for war!
Stop storming the deserts to fuel SUV's!
Stop telling us lies on the mainstream T.V.'s!
 
Stop treating our children as a market to sack!
Stop feeding them junk food like the Big Mac!
Stop trying to addict them to lifelong consuming,
In a time when we think global warming is looming!

Stop sanctions that are killing the kids in Iraq!
Start dealing with ours that are strung out on crack!"
A mighty sound started to rise and to grow,
"The old way of thinking simply must go!
 
Enough of God versus Allah, Muslim vs. Jew
With what lies ahead, it simply won't do.
The American dream cared for more then wealth
It has always included community health.
 
The rivers and forests are facing decay,
If we're to survive, we must walk a new way.
No more excessive and mindless consumption
Let's sharpen our minds and garner our gumption.

For the ideas are simple, but the practice is hard,
And not to be won by a poem on a card.
It needs the ideas and the acts of each Who,
So let's get together and plan what to do!"

And so they all gathered from all 'round the Earth

And from it all came a virtual birth.

With each passing day the standard of wealth,
Was whatever nurtured Whos' spiritual health.
Although our story has Grinches 'gainst Whos,
The true battle lies in what we daily choose.
 
For inside each Grinch is a tiny small Who,
And inside each Who is a tiny Grinch too.
One thrives on love and one thrives on greed.
Who will win out? Depends which one you feed!

Posted by Elaine Cassel at June 21, 2003 4:55 AM

 

Bush's Dangerous and Diabolical Ban on Racial Profiling

Filed under: Imported

With much fanfare and touting as a fulfillment of a campaign promise, President Bush this week signed an Executive Order "banning" racial profiling.  Racial profiling is defined as using racial or ethnic stereotypes to target people for law enforcement "attention." Leaving aside, for a moment, the absurd exception that the ban creates—for national security—(the exception that moots the rule), let me tell you why I think the order itself is a fraud, and an evil one at that.

 

It's because of a document known as The Constitution. And a particular part of that document—The Bill of Rights-- the first ten amendments to the Constitution, which was an afterthought to the Constitution that empowered a federal government.  According to The Bill of Rights, racial profiling already is illegal. It is unconstitutional, in many ways, including:

 

• The First Amendment protects the freedom to associate with people of your choice, the freedom to worship as you choose, the freedom to speak your mind, and to read what you want to read.  It protects you from being suspected, detained, arrested, and imprisoned because of who your friends are, what religion your practice, where you go to church, what you say about anything, and what you read.
• The Fourth Amendment is protects us from unreasonable searches and seizures, and gives us the right to be secure in our homes and persons, unless a search warrant issues to invade our homes and bodies, and the right not to be detained unreasonably. 
• The Fifth Amendment gives us due process of law—the right not to be arrested except upon probable cause, the right against self-incrimination.
• The Sixth Amendment gives us the right to a fair trial with an impartial jury, the right to confront our accusers, and the right to have counsel represent us.

The Fourteenth Amendment applies all of the first 10 Amendments to the states, meaning, in this context, state law enforcement officers.  And nowhere in those amendments will you see a "national security exception." 

 

All of these guarantees have been violated repeatedly, hundreds of times over, since 9/11 and since Bush's declaration of "war" on terror.   Look no further than the report of the Inspector General of the Justice Department to read graphic detail of the nature and extent of these constitutional violations, all of them conducted in the interest of "national security."  John Ashcroft's response to the report was not only to make no apology (why isn't he impeached?), but also to say that he would do it again! 

 

The Patriot Act circumvents the Constitution by its breathtaking erosions of the Bill of Rights.  Subsequent Executive Orders issued by Bush and Ashcroft further abrogated portions of the Bill of Rights, including orders relating to conducting surveillance of attorney-client communications, the detention of people without being charged with any crime and without access to counsel, trials held in secret, and detention of foreign citizens in prison camps (Guantanamo), just to name a few.

 

The Bush Administration has repeatedly acted unconstitutionally and the courts have repeatedly sanctioned such actions, including this week, when the DC Court of Appeals upheld the secret hearings, detention and deportation of hundreds of people of Middle Eastern, Arab, and Muslim descent after 9/11.

 

So why the ban on racial profiling, since Bush and Ashcroft are engaging in it wholesale and doing so with judicial sanction?  The ban is more than pure politics—pandering to the black and other minority vote, as Bush prepares to fill his "war chest" with hundreds of millions of dollars.   It is, in short, an order purporting to transcend, even abrogate, the Constitution.  It says, law enforcement cannot engage in "racial profiling," except-- -- except—to protect national security.

 

If you have been paying attention for almost two years, you know that nothing is not national security.  You know that your email, your mail, your books, your conversations, your prayers may be cause to brand you a terrorist.  Because you may be thinking things or reading things that "threaten" national security (as this article, no doubt does, Bush and Ashcroft would argue).

 

So, in one "order," at once arrogant, bold, and evil, Bush has declared that it is lawful to violate the Constitution when he says it is—if you fit any racial or ethnic stereotype.

 

And his followers, and most un-thinking Americans, won't know the difference.  They think he did something worth applauding.  

 

The ACLU knows better.  The order, they say, is "little more than rhetorical smoke and mirrors...that will legitimize and encourage the use of racial profiling at our borders, in our airports and anywhere else federal agent can apply vague and hollow justifications of national security." 

 

George W. Bush, whose very presence in office is a violation of the Constitution in the grandest way—illegally appointed by the judiciary and not elected by the people—has, with one grand, appalling stroke, remanded the Bill of Rights.   The Patriot Act was a precursor to this atrocious act.  We all should fear what Bush (and Ashcroft) are planning as a curtain call.

 

Posted by Elaine Cassel at June 19, 2003 4:30 AM

 

Score Another One For Secret Trials: Court Hands Bush Big Win

Filed under: Imported

For those of you hoping the federal courts will save you from the abuses of freedom foisted upon you by the Congress who brought us the USA Patriot Act and Bush, Rumsfeld, and Ashcroft, who brought us the "war on terror," I have bad news to report. Yet another federal appeals court has slammed the door on public interest groups trying to stem the power of the government to detain, arrest, try, and deport people in secret.

Yes, the U.S. Court of Appeals for the District of Columbia said that all those nameless and faceless detainees who were rounded up by Ashcroft and his henchmen after 9/11, who were abused by the government as reported by the DOJ Inspector General last week, they all have the right to privacy!  Now you and I don't have the right to privacy, common ordinary people charged with anything from jaywalking to murder, no siree, we have no right to privacy. Anyone can walk into any courthouse and get our criminal records.

But so-called "terrorists" (I mean, that is why they were rounded up, wasn't it?) hell, they have privacy!  Apparently, that irony was lost on the two who masqueraded as judges. And, just in case you don't buy the privacy argument, they said they must defer to the President in time of "war."  Yes, that perpetual war that will never end.  That war on evil, that war on terror. Whatever Bush and Ashcroft want from the courts, they will get. 

Judge Tatel wrote a stinging dissent, accusing his colleagues (one appointed by Reagan, on by George the First) of totally abdicating their role as protectors of the law.  What, he said?   You say the Freedom of Information Act falls when the President claims national seucirty?  And you are not even going to look at the claim and see if it is legitimate?

Judge Tatel wrote:

"The court's uncritical deference to the government's vague, poorly explained arguments for withholding broad categories of information about the detainees, as well as its willingness to fill in the factual and logical gaps in the government's case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.  For all its concern about the separation-of-powers principles at issue in this case, the court violates those principles by essentially abdicating its responsibility to apply the law as Congress wrote it."

Judge Tatel also attacked the court for refusing to release the name of the attorneys involved in the cases.  The majority reasoned that the attorneys might be embarrased by being associated with representing people who were detained.  That is a not so subtle threat and reminder to attorneys that they will be held to be the terrorist that their clients are charged with being, if they dare take these cases.   The proof of that is in the government's prosecution of Lynne Stewart (see the articles and documents posted on this site).

Since there is now only one branch of government, Congress ought to disband the courts and send the judges packing.  If you think this decision is bad, wait until those new Bush appointees don their robes. Dissents will be even rarer than they are today--all part of the Bush-Rove plan. Yesterday the Congress, today the Courts, tomorrow the Constitution.

 

 

 

 

Posted by Elaine Cassel at June 18, 2003 4:50 AM

 

Scalia's Ironic View of the Law

Filed under: Imported

Yesterday, the US Supreme Court made a sensible ruling, limiting when a criminal defendant could be forced to take psychotropic medications so that he or she could be tried.  The case involved a nonviolent crime in which the defendant posed no danger to society or himself.  The Court ruled that in such a case, a trial judge must make a finding that the drugs are medically necessary, will render the defendant competent to be tried, and that methods other than drugs are not readily available to achieve the same purpose.

Justice Scalia stuck to his usual style in his dissent--insult his colleagues who ruled in the majority, parody the issue, and engage in what Donald Rumsfeld refers to as "Henny, penny, the sky is falling" rhetoric.  Scalia said, in effect, now look what you've gone and done. Next thing you know a defendant will want to stop the trial and appeal because he can't wear his favorite t-shirt to his trial.  Worse, Scalia said, some courts will take today's ruling seriously, and abide by it.

That sentiment really bothered me, given that we are supposed to do what the Supreme Court says.  I mean, Florida stopped counting the votes, right?  I think that Scalia probably only respects the law that goes his way, suggesting that he is in some early-childhood state of moral development.  That the law should be obeyed because it is the law seems to be lost on him.

Why does this trouble me so? Because it bodes how he, Thomas (who virtually always joins him) and others, like O'Connor (to divine her jurisprudential philosophy would require more than a lifetime of lessons in reading tea leaves), will rule when it comes to upholding the law when they don't like it. You know where I am going with this--what Scalia and his followers will do when the Constitution does not suit their political purposes in trials that test the powers Bush and Ashcroft have given to themselves in the name of fighting "terrorism."

At the heart of Scalia's dissent was the dismay that, damn, these defendants who want to assert their right to not be medicated will disrupt the trial by asking that medication be stopped. Then, if some judge follows the law, who knows when the trial will be concluded and the defendant go to prison or the execution chamber?  Going through the motions, getting someone convicted regardless of how, is Scalia's main concern. 

Last year, in a bizarre article written for a Catholic publication, Scalia referred to himself as something akin to God's executioner, for whom nothing or no one should stand in the way.  Certainly not the law.  Or courts--unless it is "his" court when he is in the majority.

Think about this and remember that Bush said Scalia was his favorite justice (and some say, Bush's choice for Chief Justice).  When a Supreme Court justice belittles the law and the process, what good is he?

Read the majority opinion, and Scalia's dissent.

Posted by Elaine Cassel at June 17, 2003 5:30 AM

 

Analyze That, John Ashcroft: Federal Juries Rejecting Death Penalty

Filed under: Imported

The news must have ruined John Ashcroft's Sunday.  And his Father's Day celebration. The New York Times reported that federal juries refused to impose the sentence of death 15 of the 16 times it was requested in 2002.  For you see, death-loving Ashcroft is on a death-penalty rampage.  Last year he forced many prosecutors to go for death against their better judgment, sometimes even making them back out on guilty plea arrangements where a defendant had been promised life in exchange for cooperating with the government.

In a disgusting display of blood-lust in my neighborhood, Ashcroft last fall snatched the juvenile "Beltway sniper" John Lee Malvo, out of a detention facility in Maryland (which did not have the death penalty then--it does not, having elected a Republican in Ashcroft's own likeness who even ran on the DP as a political platform) and moved him to Fairfax County, Virginia, where he was handed over to local prosecutors with the instruction to see that he was charged with capital murder and put to death. Prosecutors are working hard to do just that.

The data on the federal trials does not explain why federal juries said no to death, and statisticians warn that it may just be a one-time anomaly.  But there is reason to hope that thinking (you don't even have to be compassionate on this one) Americans have heard one too many stories of innocent people being released from death row, where they were near execution for crimes they did not commit.

Such was the record in Illinois, that then Gov. Jim Ryan commuted all death sentences to life in prison, in one of his last acts as governor.  The furious attorney general of Illinois is working to try to get the death sentences restored.

Unlike John Ashcroft and George Bush, who deny that an innocent person has ever been put to death in America (or the current Supreme Court, writing, in its denial of the appeal of a Virginia defendant, that guilt or innocence is not their concern), these jurors may have worried that they might send an innocent man to his death.  

Then, maybe jurors take their role seriously, something John does not want them to do. You see, he only wants jurors--and everyone else for that matter--to do as he says.  I wonder if he will soon take to attacking the character and patriotism of jurors who don't obey him? Or worse--conduct survelliance on them or keep a list of them, as he is doing under a new federal law that makes judges report to him when they don't impose the maximum federal sentence?

It is worth noting that the states in which jurors refused to order death included strongly pro-death penalty states, like Texas, Virginia, and Florida. Last week, a jury in Binghamton, N.Y., sentenced two defendants to life without parole for torturing and killing a rival drug dealer.

Franklin E. Zimring, a law professor at the University of California at Berkeley, suggests another explanation:  defense attorneys in federal trials are more competent and better paid--be they court-appointed, federal public defenders, or private attorneys.  I practice in federal court, and few federal judges would countenance the disgraceful work of many court-appointed attorneys we have read about, most notably in Texas (where attorneys have been asleep or drunk at counsel table).

Alan Vinegrad, a former United States attorney in Brooklyn, said the recent statistics represented something larger.

"It reflects that the tide is turning in this country with regard to attitudes about the death penalty," Mr. Vinegrad said. "There has been so much publicity about wrongfully convicted defendants on death row that people sitting on juries are reluctant to impose the ultimate sanction."

I hope he is right. Whatever the reason, jurors have said "no" to John Ashcroft, and that is more than Congress or most federal judges have done.

Posted by Elaine Cassel at June 16, 2003 5:14 AM

 

A Roadmap for Loss of Civil Liberties: The Peruvian Experiment

Filed under: Imported

Recently, I posted an email from a reader in Chile. He urged that Americans wake up to the tragedy taking place while we sleep--the loss of civil liberties in the name of a war on terror. The reader noted similarities between events in the US post 9/11 and Chile 30-plus years ago, and wistfully wondered if American's were aware of how difficult it would be to regain freedoms lost. 

Noah Leavitt, human rights attorney and contributor to Findlaw's Writ and Counterpunch, recently wrote about what America can learn from another South American country's "experiment" in dealing with terrorism--that of Peru.  Noah explains why it is so important that Americans resist the move of the Bush Administration.  Ultimately, citizen resistance paved the way for reform.  For those who have thrown up their hands and cried, "What can I do?' Noah offers practical suggestions about why we must fight, resist, and oust the administration that has no respect for the constitution and the rule of law.  Noah has some particular warnings about practices that undermine the federal courts, a topic I write about frequently on this site.

His article first appeared in Findlaw's Writ.  He has generously agreed to allow me to reprint it, and I do so in order to give you, my readers, a different and more global perspective on the war on civil liberties.   

Peru as Our Crystal Ball?

One Possible Future for America's War on Terrorism

By NOAH LEAVITT

How will history judge the Bush Administration's efforts to keep Americans safe from terrorists?

Although we are constantly told that we are fighting a new kind of war, can we find guidance elsewhere in the world? In this column, I will argue that Americans need only look at other countries in our own hemisphere to glimpse where we may be headed if we do not keep a check on increasing governmental power.

Imagine, for instance, this scenario: Citing infiltration by terrorist groups within the country, the president imposes a 30-day state of national emergency, suspending some constitutional rights and declaring martial law. Police and the military are allowed to use force to clear roadways, detain strikers, enter homes without warrants and take a wide range of actions to restore order.

The president's actions, and the ensuing actions of police and the military, inspire mass protest. Hundreds of protesters are arrested after clashing with police. A few are killed. Labor unions and student groups threaten massive civil disobedience in protest.

Eventually, the country seems to be calming. But the experience reminds citizens of the fragile balance between national security and civil liberties.

Could it happen here? Why not? After all, it happened in Peru only last week.

The Truest Analogies For the "War on Terror" Address Terrorism, Not War

Since September 11, many have noted that America has almost always regretted its curtailment of civil liberties during wartime. The internment of American citizens of Japanese descent during World War II is now seen as a national shame requiring reparations. President Lincoln's suspension of habeas corpus during the Civil War led to regret, and its restoration.

And, indeed, it seems very likely that America will regret some of its "war on terrorism" policies. Indeed, the Department of Justice Inspector General's report released on June 2 already reveals abuses when it comes to post-September 11 immigration detention.

The 200-page-plus report admits that many foreigners detained as part of the government's post-September 11 investigations were held too long without being told of the charges against them; subjected to "unduly" harsh conditions of confinement; and wrongly denied access to lawyers during their first few weeks in detention.

On the whole, despite its acknowledgement of the challenges of fighting terrorism, the report "found significant problems in the way the detainees were handled." Among them was a "lack of precision" in assessing the suspected terrorists' actual threat.

Other current practices are also likely to inspire regret. Nevertheless, the analogy to wartime is flawed. The war on terror is best seen as what it is, a nation's campaign against terrorism, and not just as a new kind of war.

Moreover, the analogy to war cuts both ways. While wartime abuses were later regretted, they were in some cases upheld at the time they occurred. For instance, in Korematsu v. United States, the Supreme Court blessed the Japanese internment camps. And the Bush Administration has leaned on the WWII precedent of Ex Parte Quirin in an attempt to justify using military tribunals.

Once terrorism is seen as something sui generis--not as a new kind of war--it becomes clear that America is not the first nation to try to combat terrorism. It is striking how little attention has been paid to other countries' experiences with terrorism. Yet these experiences--not World War II or the Civil War--may provide the best guidance to the possibilities and serious risks of anti-terrorism approaches.

The Peruvian Comparison: Another Diverse, Capitalist Democracy Faces Terrorism

Consider Peru--a democratic, diverse, capitalist country of 26 million people that has confronted terrorism.

In 1980, a handful of armed bandits took over a provincial office in a small Peruvian town. Despite this inauspicious beginning, these guerrillas began a reign of terror. They killed fellow Peruvians for supporting capitalism, democracy and organized religion; for voting in elections; for organizing unions; and simply for being merchants. In exceptionally brutal ways, the terrorists murdered urban and rural people, and the native-born and immigrants, all alike.

Such incidents multiplied rapidly, as did the terrorists' followers. At its peak, the main group of terrorists -The "Shining Path"--was estimated to have about 10,000 members. Its leader, Abimael Guzman, was a philosophy professor-turned-Maoist revolutionary. (Guzman's life is fictionalized in the new movie The Dancer Upstairs).

By the early 1990s, these radical terrorist cells had crippled Peru, controlling more than a third of the country, causing mayhem, and creating an incredible climate of fear. More than 30,000 people are said to have been killed during this period.

The Peruvian Government Cracks Down

Normal police patrols and the judicial process did not seem to be effective against this terrorist threat. Judges who ruled against accused terrorists would be killed or tortured; police could not effectively combat the Shining Path.

In 1992, then-President Fujimori panicked. In a "self-coup," he closed Congress, shut down the judiciary, and ordered the arrest of a wide range of governmental opponents, most of whom had no terrorist affiliations.

In addition, Fujimori ordered heavy-handed measures to combat the rising wave of bombings, kidnappings and assassinations. Hooded military judges were given the power to pass life sentences on defendants for treason based on secret evidence obtained in equally secret tribunals.

One Peruvian recently quoted in a Los Angeles Times story commented, "drastic laws were needed--it was not a normal situation. But the laws were ferocious and terrorism was not clearly defined. If I got out a red cloth to wipe my car, I could be accused of terrorism. It was not reasonable."

More than 900 people were tried in military courts; Guzman, who was captured soon after the draconian regime was imposed, was one of them. Today, more than 2000 people are behind bars on terrorism charges. Hundreds now claim that they are innocent or were wrongly convicted.

At the same time, numerous quasi-governmental responses were instituted, such as extrajudicial executions of people suspected of being Shining Path members. Another 7,000 to 8,000 Peruvians were "disappeared" by government and paramilitary forces.

Many Peruvians Supported Fujimori's Laws, but the World Complained

At the time, many Peruvians, frightened and weary of the turmoil within their borders, supported Fujimori. Yet Peru's harsh laws drew international ire. In particular, international human rights groups focused on the high level of secrecy employed, and the refusal to honor due process rights.

In 1999, the Inter-American Court of Human Rights, the judicial arm of the Organization of American States, instructed Peru to reform its legislation addressing terrorism. It noted that Peru's anti-terrorism courts did not satisfy international and regional minimum standards of due process.

Not surprisingly, President Fujimori, long a friend of international law, ceased recognizing the Inter-American Court's jurisdiction over events in Peru. (In 2000, President Fujimori fled the country. He is now in exile.)

A Recent Landmark Decision In Peru Condemns A Set of Anti-Terrorism Laws

This international condemnation did have an important effect, however: Many relatives of the prisoners began to complain to the Peruvian judiciary. More than 5000 petitioned the high Court to reconsider the country's anti-terrorism laws. And ultimately, their efforts bore fruit.

In January of this year, in what has been called the most important judicial decision in the country's history, Peru's highest court struck down a wide range of laws that, in the 1990s, were used to control domestic terrorist groups. The Court's president said that its ruling brought Peru in line with international human right norms. The decision is one part of Peru's broader ongoing effort to deal with the excesses of its domestic counter-terrorism efforts.

In its decision, the Court declared the use of military tribunals to try civilians unconstitutional. It also found that life sentences handed down to Peruvians convicted of terrorism were unconstitutionally excessive. The Court also urged a review of sentences once a convict had served 30 years.

One of the overturned decrees made it a crime of treason for a teacher to speak positively or in defense of terrorists, which could lead to life in prison. The Court overturned the decree as an obvious violation of free speech rights.

The Court ordered the Congress to update Peru's anti-terror laws to be consistent with the ruling. It also required retrials for a number of rebel leaders. But at the same time--recognizing the majority of the Peruvians' fear of these possible terrorists--the Court also gave Peru's President Toledo special power to guarantee that the guerrillas did not find loopholes in the

Court's decision, and end up back on the streets. For instance, it allowed the government to hold convicted terrorists pending their case review, and the outcome of any new trials, so that they would not commit crimes, or flee, in the interim.

The main governmental opposition leader said that Peruvian politicians would have to be "imbeciles or suicidal" not to recognize that the ruling would require absolute national unity to craft appropriate and constitutional solutions.

Not only did the prior rulings do terrible harms to civil liberties, but the need to now retry numerous persons will impose large costs on the Peruvian government. The Peruvian Court acknowledged that its ruling could pave the way for civil trials for more than 800 alleged terrorists who had earlier been tried by the now-illegal military tribunals. Less then a week after the decision, more than 100 cases already were transferred to the country's civilian court.

Some of this cost will be mitigated by the fact that the Court has allowed evidence gained in the military court to be used in the new civil cases (even Guzman's, in which charges were brought in March).

Meanwhile, President Toledo has supported a Truth Commission to look at the thousands of disappearances that occurred. In addition, prosecutors are beginning to look into some cases where government soldiers summarily executed accused terrorists.

Lessons for the United States from Peru's Experience

Six main lessons emerge from this story. Each should have significance for the U.S..

First, the Peruvian high Court's review of the antiterrorism laws only came about because of the persistent complaints to the courts by thousands of aggrieved Peruvians. In the U.S., those who believe their rights have not been respected by the government, in the course of the war on terrorism, should complain, and they and those who support them should protest--for if they do not, change may not come.

Second, insofar as is possible, "war on terrorism" proceedings should be open, not secret, so that if there is a basis for complaints and protests, we can learn it now. The Peruvian high court was right to condemn secret proceedings and the use of hooded judges. But even now, in the U.S., the super-secret FISA court continues to act, and closed immigration hearings in post-9/11 cases have been upheld.

Third, as Peru learned, civil (here, federal court) justice is preferable to justice imposed via military tribunals. We do not want to end up in Peru's position of having to retry every alleged terrorist whose due process rights were initially violated--and of course, we should try not to violate due process rights in the first place.

Fourth, international pressure based on international legal standards, informed the Peruvian complainers and helped their complaints carry weight. Similarly, international human rights group should continue to put pressure on the U.S. when they believe rights have been unduly restricted in the "war on terrorism."

Fifth, only after a change of national leadership in Peru was the political groundwork ready for a sweeping judicial pronouncement condemning the prior government's anti-terrorism measures. In the U.S., although the Inspector General's recent report may indicate that the current government has some capacity for self-criticism, only a change in leadership may lead to a wholesale reversal of anti-terrorism policies.

Sixth, the Peruvian decision highlights the need for a strong separation of powers; in particular, it is important that the judiciary be, and feel, independent from political pressures. The head of Peru's court said, "you don't fight terrorism with state terrorism." He continued, "that's how democracy is. You respect the human rights of everyone, even terrorists."

Only truly independent judges are likely to hew to this line, however. In the U.S., we are fortunate to have federal judicial independence ensured, to some extent, by the Constitution's provision for life tenure and fixed salaries for federal judges, who can be removed only by impeachment. Nevertheless, judges and magistrates need to resist the pressure to sway in the prevailing pro-security wind, and must hold fast to their commitment to civil liberties.

On the whole, we can only hope the U.S. may be able to learn the lessons of experiences like Peru's, without having first to suffer them. The Peruvian example illustrates how a nation under terrorist attack comes to regret the due process violations it once allowed.

If we are lucky, we will change course now, so there is less that we will later have to regret. A decade later, Peru is beginning to recognize and undo the harsh measures taken during its own war on terrorism. But we shouldn't have to wait until 2013 to do the same.

Do we have the ability to change course, and protect both rights and liberties--rather than going down the road Peru took, which led to great abuses? The recent Inspector General report on detentions give us at least some reason to hope that we do.

Noah Leavitt can be contacted at nsleavitt@hotmail.com.

Posted by Elaine Cassel at June 15, 2003 5:46 AM

 

Filed under: Imported

Posted by Elaine Cassel at June 15, 2003 5:37 AM

 

Peru: A Roadmap For US War on Civil Liberties

Filed under: Imported

Recently, I posted an email from a reader in Chile. He urged that Americans wake up to the tragedy taking place while we sleep--the loss of civil liberties in the name of a war on terror. The reader noted similarities between events in the US post 9/11 and Chile 30-plus years ago, and wistfully wondered if American's were aware of how difficult it would be to regain freedoms lost. 

Noah Leavitt, human rights attorney and contributor to Findlaw's Writ and Counterpunch, recently wrote about what America can learn from another South American country's "experiment" in dealing with terrorism--that of Peru.  Noah explains why it is so important that Americans resist the move of the Bush Administration.  Ultimately, citizen resistance paved the way for reform.  For those who have thrown up their hands and cried, "What can I do?' Noah offers practical suggestions about why we must fight, resist, and oust the administration that has no respect for the constitution and the rule of law.  Noah has some particular warnings about practices that undermine the federal courts, a topic I write about frequently on this site.

His article first appeared in Findlaw's Writ.  He has generously agreed to allow me to reprint it, and I do so in order to give you, my readers, a different and more global perspective on the war on civil liberties.   

Peru as Our Crystal Ball?

One Possible Future for America's War on Terrorism

By NOAH LEAVITT

How will history judge the Bush Administration's efforts to keep Americans safe from terrorists?

Although we are constantly told that we are fighting a new kind of war, can we find guidance elsewhere in the world? In this column, I will argue that Americans need only look at other countries in our own hemisphere to glimpse where we may be headed if we do not keep a check on increasing governmental power.

Imagine, for instance, this scenario: Citing infiltration by terrorist groups within the country, the president imposes a 30-day state of national emergency, suspending some constitutional rights and declaring martial law. Police and the military are allowed to use force to clear roadways, detain strikers, enter homes without warrants and take a wide range of actions to restore order.

The president's actions, and the ensuing actions of police and the military, inspire mass protest. Hundreds of protesters are arrested after clashing with police. A few are killed. Labor unions and student groups threaten massive civil disobedience in protest.

Eventually, the country seems to be calming. But the experience reminds citizens of the fragile balance between national security and civil liberties.

Could it happen here? Why not? After all, it happened in Peru only last week.

The Truest Analogies For the "War on Terror" Address Terrorism, Not War

Since September 11, many have noted that America has almost always regretted its curtailment of civil liberties during wartime. The internment of American citizens of Japanese descent during World War II is now seen as a national shame requiring reparations. President Lincoln's suspension of habeas corpus during the Civil War led to regret, and its restoration.

And, indeed, it seems very likely that America will regret some of its "war on terrorism" policies. Indeed, the Department of Justice Inspector General's report released on June 2 already reveals abuses when it comes to post-September 11 immigration detention.

The 200-page-plus report admits that many foreigners detained as part of the government's post-September 11 investigations were held too long without being told of the charges against them; subjected to "unduly" harsh conditions of confinement; and wrongly denied access to lawyers during their first few weeks in detention.

On the whole, despite its acknowledgement of the challenges of fighting terrorism, the report "found significant problems in the way the detainees were handled." Among them was a "lack of precision" in assessing the suspected terrorists' actual threat.

Other current practices are also likely to inspire regret. Nevertheless, the analogy to wartime is flawed. The war on terror is best seen as what it is, a nation's campaign against terrorism, and not just as a new kind of war.

Moreover, the analogy to war cuts both ways. While wartime abuses were later regretted, they were in some cases upheld at the time they occurred. For instance, in Korematsu v. United States, the Supreme Court blessed the Japanese internment camps. And the Bush Administration has leaned on the WWII precedent of Ex Parte Quirin in an attempt to justify using military tribunals.

Once terrorism is seen as something sui generis--not as a new kind of war--it becomes clear that America is not the first nation to try to combat terrorism. It is striking how little attention has been paid to other countries' experiences with terrorism. Yet these experiences--not World War II or the Civil War--may provide the best guidance to the possibilities and serious risks of anti-terrorism approaches.

The Peruvian Comparison: Another Diverse, Capitalist Democracy Faces Terrorism

Consider Peru--a democratic, diverse, capitalist country of 26 million people that has confronted terrorism.

In 1980, a handful of armed bandits took over a provincial office in a small Peruvian town. Despite this inauspicious beginning, these guerrillas began a reign of terror. They killed fellow Peruvians for supporting capitalism, democracy and organized religion; for voting in elections; for organizing unions; and simply for being merchants. In exceptionally brutal ways, the terrorists murdered urban and rural people, and the native-born and immigrants, all alike.

Such incidents multiplied rapidly, as did the terrorists' followers. At its peak, the main group of terrorists -The "Shining Path"--was estimated to have about 10,000 members. Its leader, Abimael Guzman, was a philosophy professor-turned-Maoist revolutionary. (Guzman's life is fictionalized in the new movie The Dancer Upstairs).

By the early 1990s, these radical terrorist cells had crippled Peru, controlling more than a third of the country, causing mayhem, and creating an incredible climate of fear. More than 30,000 people are said to have been killed during this period.

The Peruvian Government Cracks Down

Normal police patrols and the judicial process did not seem to be effective against this terrorist threat. Judges who ruled against accused terrorists would be killed or tortured; police could not effectively combat the Shining Path.

In 1992, then-President Fujimori panicked. In a "self-coup," he closed Congress, shut down the judiciary, and ordered the arrest of a wide range of governmental opponents, most of whom had no terrorist affiliations.

In addition, Fujimori ordered heavy-handed measures to combat the rising wave of bombings, kidnappings and assassinations. Hooded military judges were given the power to pass life sentences on defendants for treason based on secret evidence obtained in equally secret tribunals.

One Peruvian recently quoted in a Los Angeles Times story commented, "drastic laws were needed--it was not a normal situation. But the laws were ferocious and terrorism was not clearly defined. If I got out a red cloth to wipe my car, I could be accused of terrorism. It was not reasonable."

More than 900 people were tried in military courts; Guzman, who was captured soon after the draconian regime was imposed, was one of them. Today, more than 2000 people are behind bars on terrorism charges. Hundreds now claim that they are innocent or were wrongly convicted.

At the same time, numerous quasi-governmental responses were instituted, such as extrajudicial executions of people suspected of being Shining Path members. Another 7,000 to 8,000 Peruvians were "disappeared" by government and paramilitary forces.

Many Peruvians Supported Fujimori's Laws, but the World Complained

At the time, many Peruvians, frightened and weary of the turmoil within their borders, supported Fujimori. Yet Peru's harsh laws drew international ire. In particular, international human rights groups focused on the high level of secrecy employed, and the refusal to honor due process rights.

In 1999, the Inter-American Court of Human Rights, the judicial arm of the Organization of American States, instructed Peru to reform its legislation addressing terrorism. It noted that Peru's anti-terrorism courts did not satisfy international and regional minimum standards of due process.

Not surprisingly, President Fujimori, long a friend of international law, ceased recognizing the Inter-American Court's jurisdiction over events in Peru. (In 2000, President Fujimori fled the country. He is now in exile.)

A Recent Landmark Decision In Peru Condemns A Set of Anti-Terrorism Laws

This international condemnation did have an important effect, however: Many relatives of the prisoners began to complain to the Peruvian judiciary. More than 5000 petitioned the high Court to reconsider the country's anti-terrorism laws. And ultimately, their efforts bore fruit.

In January of this year, in what has been called the most important judicial decision in the country's history, Peru's highest court struck down a wide range of laws that, in the 1990s, were used to control domestic terrorist groups. The Court's president said that its ruling brought Peru in line with international human right norms. The decision is one part of Peru's broader ongoing effort to deal with the excesses of its domestic counter-terrorism efforts.

In its decision, the Court declared the use of military tribunals to try civilians unconstitutional. It also found that life sentences handed down to Peruvians convicted of terrorism were unconstitutionally excessive. The Court also urged a review of sentences once a convict had served 30 years.

One of the overturned decrees made it a crime of treason for a teacher to speak positively or in defense of terrorists, which could lead to life in prison. The Court overturned the decree as an obvious violation of free speech rights.

The Court ordered the Congress to update Peru's anti-terror laws to be consistent with the ruling. It also required retrials for a number of rebel leaders. But at the same time--recognizing the majority of the Peruvians' fear of these possible terrorists--the Court also gave Peru's President Toledo special power to guarantee that the guerrillas did not find loopholes in the

Court's decision, and end up back on the streets. For instance, it allowed the government to hold convicted terrorists pending their case review, and the outcome of any new trials, so that they would not commit crimes, or flee, in the interim.

The main governmental opposition leader said that Peruvian politicians would have to be "imbeciles or suicidal" not to recognize that the ruling would require absolute national unity to craft appropriate and constitutional solutions.

Not only did the prior rulings do terrible harms to civil liberties, but the need to now retry numerous persons will impose large costs on the Peruvian government. The Peruvian Court acknowledged that its ruling could pave the way for civil trials for more than 800 alleged terrorists who had earlier been tried by the now-illegal military tribunals. Less then a week after the decision, more than 100 cases already were transferred to the country's civilian court.

Some of this cost will be mitigated by the fact that the Court has allowed evidence gained in the military court to be used in the new civil cases (even Guzman's, in which charges were brought in March).

Meanwhile, President Toledo has supported a Truth Commission to look at the thousands of disappearances that occurred. In addition, prosecutors are beginning to look into some cases where government soldiers summarily executed accused terrorists.

Lessons for the United States from Peru's Experience

Six main lessons emerge from this story. Each should have significance for the U.S..

First, the Peruvian high Court's review of the antiterrorism laws only came about because of the persistent complaints to the courts by thousands of aggrieved Peruvians. In the U.S., those who believe their rights have not been respected by the government, in the course of the war on terrorism, should complain, and they and those who support them should protest--for if they do not, change may not come.

Second, insofar as is possible, "war on terrorism" proceedings should be open, not secret, so that if there is a basis for complaints and protests, we can learn it now. The Peruvian high court was right to condemn secret proceedings and the use of hooded judges. But even now, in the U.S., the super-secret FISA court continues to act, and closed immigration hearings in post-9/11 cases have been upheld.

Third, as Peru learned, civil (here, federal court) justice is preferable to justice imposed via military tribunals. We do not want to end up in Peru's position of having to retry every alleged terrorist whose due process rights were initially violated--and of course, we should try not to violate due process rights in the first place.

Fourth, international pressure based on international legal standards, informed the Peruvian complainers and helped their complaints carry weight. Similarly, international human rights group should continue to put pressure on the U.S. when they believe rights have been unduly restricted in the "war on terrorism."

Fifth, only after a change of national leadership in Peru was the political groundwork ready for a sweeping judicial pronouncement condemning the prior government's anti-terrorism measures. In the U.S., although the Inspector General's recent report may indicate that the current government has some capacity for self-criticism, only a change in leadership may lead to a wholesale reversal of anti-terrorism policies.

Sixth, the Peruvian decision highlights the need for a strong separation of powers; in particular, it is important that the judiciary be, and feel, independent from political pressures. The head of Peru's court said, "you don't fight terrorism with state terrorism." He continued, "that's how democracy is. You respect the human rights of everyone, even terrorists."

Only truly independent judges are likely to hew to this line, however. In the U.S., we are fortunate to have federal judicial independence ensured, to some extent, by the Constitution's provision for life tenure and fixed salaries for federal judges, who can be removed only by impeachment. Nevertheless, judges and magistrates need to resist the pressure to sway in the prevailing pro-security wind, and must hold fast to their commitment to civil liberties.

On the whole, we can only hope the U.S. may be able to learn the lessons of experiences like Peru's, without having first to suffer them. The Peruvian example illustrates how a nation under terrorist attack comes to regret the due process violations it once allowed.

If we are lucky, we will change course now, so there is less that we will later have to regret. A decade later, Peru is beginning to recognize and undo the harsh measures taken during its own war on terrorism. But we shouldn't have to wait until 2013 to do the same.

Do we have the ability to change course, and protect both rights and liberties--rather than going down the road Peru took, which led to great abuses? The recent Inspector General report on detentions give us at least some reason to hope that we do.

Noah Leavitt can be contacted at nsleavitt@hotmail.com.

Posted by Elaine Cassel at June 14, 2003 9:29 PM

 

Why You Should Be Outraged About Ashcroft's Detention Policies

Filed under: Imported

Attorney General John Ashcroft's own Inspector General reported on clear violations of the law, as John and his henchmen rounded up mostly middle Eastern men shortly after 9/11. They were held, some for months, with limited access to attorneys or families; some were beaten; most were lied to. Not one of the hundreds locked up were charged with having any connection to terrorism.  You can be sure, that if there was a hint of such, they would have been charged and prosecuted, as Ashcroft says repeatedly, "to the full extent of the law."  

What should be outrage is muted and murmured mumblings. I believe that there are two reasons for this public reticence: the victims were "immigrants" and all of Ashcroft's offenses are forgiven in a post 9/11 world.

Would that more commentators expressed the outrage of Georgetown University Law School Professor David Cole.  He is some of what he had to say in a scathing indictment of Ashcroft's post 9/11 detentions of innocent immigrants. Cole addresses not just the subjects of the IG's report, but the thousands of Muslim, Arab, and Middle Eastern men detained since 9/11. 

"More than 730 foreign nationals were locked up after Sept. 11, 2001, on immigration charges and labeled "of interest" to the Sept. 11 investigation. In the end, not a single one was charged with the crimes of that day or any other terrorist crime. The FBI ultimately cleared nearly all of them of any connection to terrorism whatsoever.

"The inspector general's report paints a stark picture of practices previously kept secret. Though innocent of terrorism, the detainees were all treated as terrorists. They were held in secret and tried in secret on routine immigration charges. To this day, the government refuses to disclose their names. Many were held in 23-hour-a-day lockdown. (One hour was, in theory, for exercise.) They were initially barred from communicating with each other and the outside world, including lawyers.

"Many were physically and verbally abused, the report concluded. They were held without bond, without regard to any actual evidence that they were dangerous, a flight risk or tied to terrorism. Even detainees whose immigration cases were fully resolved and who were ready and willing to leave the country were kept locked up simply because the FBI had not "cleared" them, a process that took an average of 80 days, and as long as 244 days, to complete. They were presumed guilty until proven innocent.

"The inspector general's report illustrates what happens when the government adopts a "preventive" law enforcement strategy, as Ashcroft has so proudly done since the terrorist attacks. The justice system is generally backward-looking. The presumption of innocence and due process require objective evidence that an individual has actually done something wrong before he can be stuck in a prison cell. Authorities need not wait until the bomb goes off; conspiracy laws permit punishment for crimes discovered in the planning stage. But even conspiracy convictions require proof that an individual has taken some specific acts toward the conspired end.

"Ashcroft wants to do more than capture and prosecute individuals who commit or conspire to commit terrorist acts. Understandably, he seeks to prevent the next atrocity from occurring. But the inspector general's report reveals the dangers of Ashcroft's approach. People were picked up on anonymous tips that "too many" Muslims worked in a convenience store, or that a Muslim neighbor kept odd hours, or simply because they were in a place the FBI visited during the investigation into Sept. 11. In the end, the attorney general was shooting in the dark, and virtually every shot missed.

"What's worse, the inspector general's report provides only a partial snapshot of the preventive detention campaign. It covers only those suspects picked up between September 2001 and August 2002, even though the campaign continues to this day. And it addresses only a fraction of those detained. Seven weeks into the Sept. 11 investigation, the Justice Department announced it had detained 1,182 persons, but the report focuses only on those detained on immigration violations, not those held on criminal charges or as material witnesses. It also does not address the more than 1,100 persons the Justice Department has detained in connection with the Absconder Apprehension Initiative, or the 2,747 persons it detained when they showed up for Special Registration, two other antiterrorism initiatives targeted at Arab and Muslim foreign nationals. Together, that makes somewhere between 4,000 and 5,000 preventive detentions. To this date only one of those detainees has been convicted on a terrorism criminal charge -- Karim Koubriti, who was convicted last Tuesday in Detroit of conspiracy to support terrorism. (A second person convicted in that trial had not been subject to preventive detention.) The targeting of Arabs and Muslims has been a total failure, and it has so alienated the targeted communities that we have almost certainly lost opportunities for gathering information that might help us find real terrorists.

"Because preventive law enforcement is directed at future crimes, law enforcement authorities often run up against legal protections and safeguards. Ashcroft did an end run around these protections. In the criminal justice system, individuals cannot be arrested and tried in secret. Using immigration law, Ashcroft did just that with hundreds of Sept. 11 detainees.

"In the criminal justice system, a person must be brought before a magistrate on criminal charges within 48 hours of his arrest. So Ashcroft turned to immigration law again to arrest people on no charges at all, and to hold them for many weeks before they were charged and given any hearing before a judge. (Even then, the hearing was before an administrative judge ultimately answerable to Ashcroft himself.) In the criminal justice system, a judge's order to release an individual must be carried out unless overturned by a higher judge; Ashcroft empowered his immigration prosecutors to hold foreign nationals in detention even after immigration judges had ruled that they should be released.

"Preventive law enforcement also typically targets the most vulnerable. The American public would not stand for such measures if they were applied broadly. Had Ashcroft locked up hundreds of U.S. citizens unconnected to terrorism under similar conditions, the political and legal reaction would have been swift and sharp. But foreign nationals do not vote. And by targeting foreigners, the government reassures the citizenry that "our" rights need not be sacrificed in the name of national security; it is enough to sacrifice "their" rights. In times of crisis, when the public is prone to draw lines between "us" and "them," this is an especially tempting -- though ultimately illegitimate -- way to strike the balance between liberty and security."

Cole condemns Justice Department spokeswoman Barbara Comstock's justification that "we make no apologies for finding every legal way possible to protect the American public from further terrorist attacks."

Cole pointedly notes that she "did not explain how locking up hundreds (and now thousands) of people unconnected to terrorism has protected the American public." And Ashcroft not only did not back down, but, as Cole says, "had the nerve to ask for even broader preventive detention powers, this time extending to citizens."

Ashcroft and his tactics are the enemy of this country.  If you care about what freedom is left, you must insist that your congressional representatives be held accountable for their blithe handover of the keys of freedom to John Ashcroft and the Department of Justice. Unfortunately, we cannot do anything about the extreme judges that are getting life appointments (see my post this week on Michael Chertoff, who sailed through commitee), but you can say no to Bush and all of Congress who is allowing this tragedy to proceed unchecked.

We had better stop using 9/11 as the excuse to wipe out laws and procedures as no longer of value in this supposedly new world order Bush and Ashcroft proclaim. We had better stop dismantling the judicial system, brick by brick, because the system has to be torn down in order to prosecute "terrorists."  Why?  Because those bricks will not be put into place when you walk into the courtroom.  These are not going to be short-term changes. Ashcroft and Bush will find new reasons to make sure the Bill of Rights is not there for you.  Indeed, Bush is doing so in his so-called legislative initiative related to tort "reform," medical malpractice "reform," and class-action "reform."  I will discuss this in an upcoming article.  For now, when you hear Bush talk about "reform," remember that it means you, citizen, are being shut out of the judicial process.

Posted by Elaine Cassel at June 14, 2003 4:57 AM

 

Michael Chertoff: Spreading Mischief from DOJ to the Federal Bench

Filed under: Imported

I have been watching John Ashcroft so long that it is getting to be a little boring.  Promising to use all available means to "fight terrorism," prosecuting every violation of law "to the fullest extent of the law," desperately wanting the death penalty for every possible offense, and, according to his remarks last week before the Senate Judiciary committee, wanting laws changed to impose the death penalty for even more offenses.  Ashcroft changes law and procedure by signing Executive Orders, and yes, he can get away with that unless a court stops him. So far, no court has.  Some congressional members, damn few, express mild dismay at his tactics, such as locking up resident aliens after 9/11 and holding some of them for months without access to family or lawyers (or charges), then deporting many on the most technical visa violations (some of them the fault of INS, over which he has authority). It never ends—the Ashcroft watch. It only gets worse, and more frightening.

 

But now I have a new gremlin to watch, someone who is as intent on undermining the law and Constitution as Ashcroft. I am referring to the man behind the criminal prosecution of terrorists, Michael Chertoff.  Chertoff, former chief of the Justice Department's criminal division, was appointed as judge on the Third Circuit Court of Appeals, whose jurisdiction includes Delaware, New Jersey, and Pennsylvania. 

 

What's so scary about Michael?  Well, besides having no judicial experience and being a right-ring radical who does not believe in the Constitution and wants to rewrite federal law and rules of procedure on an ad hoc, case by case basis, as it suits him, nothing I guess.

 

A good place to look for Chertoff's legal philosophy is in the prosecution of Zacarias Moussaoui, now taking place in the Eastern District of Virginia. Chertoff is not the prosecutor of course, Paul McNulty of the Eastern District is.  But Chertoff is McNulty's boss and he is calling the shots. So Chertoff argued the government's case in the super secret hearing before the 4^th Circuit Court of Appeals last week. The government is trying to block trial judge Leonie Brinkema's ruling that Moussaoui and his lawyers have access to the government's star witnesses against him.  The government has refused and appealed. Judge Brinkema, who still believes in the Constitution, rightly ruled that to deny Moussaoui that access is a blatant violation of the Sixth Amendment right to confront witnesses. 

 

Brinkema indicates that she will not be a party to making exceptions to the Constitution on a case-by-case basis. She, in effect, suggests that maybe Justice better take Moussaoui to Guant