July 2003

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Joe Padilla's Lawyers: Fighting for Principle

Filed under: Imported

The Washington Post reported on the brave lawyers of Jose Padilla, the only American citizen seized on American soil who has been declared an enemy combatant.  Padilla's lawyers, Donna Newman and Andrew Pate, are court-appointed by the U.S. District Court in New York City to represent Padilla. They are paid $90 an hour, a fraction of  their going rate for "paying" clients.

But Newman and Patel are not representing Padilla because they are going to get rich (obviously) and get more business as a result (not hardly) or become famous (not likely, at least not in a "good" way). They are doing it for you and me--fighting for our Sixth Amendment rights.

The Sixth Amendment, as given life by numerous important Supreme Court decisions, gives us the right to counsel in a criminal proceeding. Jose Padilla and Yaser Hamdi are being denied that right. Hamdi's case has already gotten through the first appellate stage, the 4th Circuit Court of Appeals, which easily stomped down his claim to have legal counsel. Padilla was appointed lawyers when he was being detained as a material witness in a government investigation into a "dirty bomb" plot. Under the enemy combatant rules adopted by the Pentagon, an enemy combatant has no right to a lawyer. But the judge ruled that Padilla should still be able to see his lawyers, even though Padilla was removed from the court's jurisdiction and sent to a brig in South Carolina. The government appealed that ruling and the judge stayed his order that Padilla meet with his lawyers pending the decision by the 2nd Circuit Court of Appeals, which will likely be handed down this fall.

Padilla and Hamdi have not been charged with any crime; yet they are being held in prison for one reason:  President Bush has named them "enemy combatants," meaning that they are not entitled to the benefits of the civil justice system.  Bush has the dubious distinction of being the only President in history to name Americans unlawful combatants.  If you don't think that is a scary precedent, think about what you would do if it happened to you.  You would disappear into the black whole of nothingness. The government will not tell your lawyer or your family where you are. You may never be charged. You may very well die in government custody. You may be killed by the government. No one will ever know.

Padilla has not been allowed to communicate with his lawyers since he was whisked out of the federal criminal justice system and sent to the navy brig.  His lawyers write him and send him copies of their motions and briefs, but they have no way of knowing if he receives them. They assume that he does not.

In essence, Newman and Patel do not have a client. So why are they continuing to fight this battle?  They do so because they are in the tradition of lawyers who believe in the right of representation for its own sake.

New York Attorney Lynne Stewart was charged with acts of terrorism that arose out of her court-appointed representation of Sheikh Abdel Ramen, convicted of complicity in the 1993 World Trade Center Bombings. Michael Tigar, one of the best lawyers in the country, was appointed by Judge Koeltl to represent Lynne Stewart. Tigar's hourly rate is stratospheric; he is not defending Stewart for the money. He is defending the right to defend. He convinced Judge Koeltl to throw out the terrorism charges, a resounding defeat for John Ashcroft, who wanted to show defense attorneys a thing or two by charging Stewart.

Thousands of attorneys in the U.S. today give freely of their skill and expertise to represent indigent defendants. It is among the most gratifying work that I do. My clients often do not "appreciate" my efforts, but I am doing it for a cause greater than my client. Like Newman, Patel, Stewart, Tigar, and others like me, I am defending the right of the indigent and the unpopular to be defended.

Don't you hope that if and when you are taken off the street by Ashcroft's thugs or a proverbial gun held to your head as prosecutors did in the case of the Lackawanna Six that you have someone like Donna Newman or Andrew Patel willing to sacrifice their financial well-beings and reputations to defend you?

I do. Think about them the next time you crack a lawyer joke.

 

Posted by Elaine Cassel at July 31, 2003 6:37 AM

 

You Call This Justice?

Filed under: Imported

The Washington Post reported on the tragedy and travesty of the convictions of six men in Lackawanna, New York, the so-called "Lackawanna Six."  John Ashcroft's prosecutors charged the men with conspiring to attend an al-Qaeda terrorist camp. Does that sound a little far-fetched to you?  Like two lovers conspiring to have an illicit affair that is never consummated?  Or two stock brokers talking about how they might pull off some scam? 

The men were never charged with any act of terrorism. They were nailed for briefly attending a training camp for jihadists in Afghanistan.  They didn't stay long, and only one of the had any evidence that suggested he might engage in terrorism. Five of the six were born in Lackawanna, and all had gone to school there and continued to live there as adults.

The Justice Department publicly condemned the men as operating a terrorist cell in Lackawanna, a charge that did not stick. Indeed, the conspiracy charge itself was so weak that as I followed the case, I was hoping for a win to put Ashcroft in his place.

But that did not happen. All six pled guilty and will serve an average of nine years in prison. Their lawyers are sick about it, the men and their families resigned to their fates. Why did they plead?

Simply, because they knew that if they did not plead guilty, and if the government's case ran into trouble (as it seemed it would), the prosecutors would do as the prosecutors in the Zacarias Moussaoui case may do; ask President Bush to declare the men enemy combatants, and remand them to a military jail somewhere where they can, under current court decisions, stay for the rest of their lives--without being charged or tried. Or they could be charged, tried, and perhaps executed by a military tribunal, as the Pentagon is preparing to do with enemy combatants seized from overseas and detained in Guantanamo Bay, Cuba.

Their defense began to unravel when the two witnesses capable of testifying about their lack of involvement in al-Qaeda could not be produced--one was thought to be held in Guantanamo, but the government refused to admit he was there. The other was killed by the US in a car bombing in Yemen. Coincidence?  Perhaps, perhaps not. But convenient for the prosecution, regardless.

The men were not willing to resist disappearing into the black hole reserved for enemy combatants, and who could blame them? For one federal court of appeals, the 4th Circuit in Richmond, ruled that once Bush declares someone an enemy combatant, the judiciary must not look behind the designation and question its propriety or credibility. That's right, no meaningful judicial review.

The prosecutors may just as well have put a gun to the men's heads and threatened to kill them on the spot if they did not plead.

That is not what prosecutors are supposed to do. They are supposed to charge fairly and uphold the rule of law. Their duty is not to get  convictions but to do justice. Funny, what the Lackawanna prosecutors called justice looks more like that of China, Pakistan, and the Sudan, than that required under the Constitution of the United States.

But that was the first Constitution, the one before the Constitution according to Bush, Ashcroft, and Rumsfeld.

Posted by Elaine Cassel at July 30, 2003 4:58 AM

 

 

Filed under: Imported

 

Posted by Elaine Cassel at July 29, 2003 5:41 PM

 

Civil Rights Violations by Justice? So What?

Filed under: Imported

Last week, the Justice Department's Office of Civil Rights reported that it had documented 34 "credible" civil rights complaints arising under the implementation of the USA Patriot Act.  Only 34? 

By definition, a "civil rights" violation usually means that a law enforcement officer, acting as agent of local, state, or federal government, deprived someone of life, liberty, or property without regard for the law or due process.  The violation often involves an unlawful search of one's person or a wrongful seizure of property.

The report found that jail guards in New York beat several immigrants detained after 9/11.  Most would say that this is a civil rights violation.  And that is what the Justice Department found, as well.

The major media outlets covered the story of the report, and people everywhere were expressing their dismay at the treatment of people detained in jails and prisons only because of their skin color, name, or ethnic heritage.  As badly as I feel for them (and I do not believe in beating anyone), I could not get excited about the report.

Why? Because brutal treatment of prisoners in America is a fact of prison life. One that is little covered and, when it is, is justified as being the product of an animal-like environment in which the strong prey upon the weak and guards abuse for self-protection. Our Supreme Court has pretty-much decided that any kind of prison torture squares with the Constitution. Justices Scalia and Thomas have gone on record as saying that there is really no such thing as the cruel and unusual punishment prohibited by the 8th Amendment to the Constitution. They and some of their colleagues argue that the Constitution does not address what is "too much" punishment and that proportionality--let the punishment fit the crime--is not what the Amendment is about.  If the electric chair is not cruel and unusual then what is? 

The Justice report also substantiated a claim by a federal prison inmate who said he was told by a prison doctor, ''If I was in charge, I would execute every one of you ... because of the crimes you all did.''  Not a nice thing to say, to be sure, but how many times a day in American's prison population do you think a prisoner is verbally abused or harassed? Yet, there is not a or court in this country that would rule that the prisoner's "rights" had been violated. Verbal abuse is an accepted fact of prison life in America. 

At the end of 2002, there were 2,166,260 Americans in local jails, state and federal prisons and juvenile detention facilities, 2.6 % higher than the year 2001. Less than a third of them are perpetrators of violence. Most are small-time drug users and dealers or people who steal and commit fraud in order to support their habits. Many are victims of draconian three-strikes laws, which the Supreme Court validated last year when it said it was just fine that a man would spend 25 years in prison for stealing videotapes. Why isn't such a sentence a violation of civil rights under the Constitution?

Prisoners have their civil rights violated when they lose their right to vote. Their civil rights are violated when the stigma of prisonization will keep most from ever getting decent jobs, which means they will have a darn hard time trying to beat the better than 60% odds that they will go back to prison for breaking some law or another, or violating some rule of their release.

As sorry as I am for the experiences of the 9/11 detainees, I find it ironic that the Justice Department cares about their beatings, while turning a blind eye to the systematic deprivation and violation of the civil rights of tens of thousands of men and women in American prisons. 

What accounts for this anomaly?  Could it be that Ashcroft and DOJ feign concern in order to help sell what they say needs to be an even "stronger and better" Patriot Act? 

Ashcroft has been trying to improve the image of the Patriot Act as a set-up to asking Congress for even more powers. Powers that will lead to more civil rights violations.  Come to think of it, the Patriot Act is, itself, a 275-page or so manifesto on how to violate civil rights.

Only 34 validated civil rights complaints under the Patriot Act? I would have thought it would be in the thousands. For a good argument could be made that the Patriot Act itself is a 275-page or thereabouts manifesto, a "how-to" violate the civil rights of each and every one of us.

Posted by Elaine Cassel at July 29, 2003 5:44 AM

 

What is the Zacarias Moussaoui Case Really About?

Filed under: Imported

Posted by Elaine Cassel at July 28, 2003 4:35 AM

 

Attorney Lynne Stewart is Not the Terrorist Ashcroft Wanted Her to Be

Filed under: Imported

John Ashcroft must be tearing out his primly coiffed hair about now. On July 21, Federal District Judge John G. Koeltl (Southern District of New York) dismissed the terrorist charges against New York attorney Lynne Stewart. In a 77-page opinion, Judge Koeltl agreed with famed civil rights attorney Michael Tigar's argument that the anti-terrorist act under which she was charged was overly vague as applied to attorney speech and conduct related to client representation. 

Stewart had been charged with aiding and abetting the terrorist activities of Sheikh Abdel Rahman, whom she, as court-appointed attorney, defended in connection with the 1993 bombings of the World Trade Center. After visiting her client in prison, Stewart answered a press question about Rahman's support of a cease-fire of then ongoing terrorist activities such as those that were implicated in bombings of U.S. embassies.  She said that he did not support a cease-fire. That statement was the basis of one of the charges that could have put her away for 15 years (she faced 40 years if convicted of all four charges). The other had to do with her supposedly being a "mouthpiece" to pass on messages from Rahman to the organization he was tied to, the Islamic Group, which is on the government's list of terrorist organizations.

Judge Koeltl said that the provision in the 1996 Anti-Terrorism Act that forbids providing communication methods and personnel to a terrorist organization did not give an attorney notice that communicating with our about his or her client could amount to conspiring to engage in terrorism. 

"The Government accuses Stewart of providing personnel, including herself, to [the Islamic Group]," Koeltl said. "In so doing, however, the Government fails to explain how a lawyer, acting as an agent of her client, an alleged leader of an FTO [foreign terrorist organization], could avoid being subject to the criminal prosecution as a 'quasi-employee' allegedly covered by the statute."

The government, in its war on defense attorneys, would have liked to be able to charge attorneys who represent alleged terrorism suspects with being terrorists themselves. To their line of reasoning, Stewart's providing her legal services to a terrorist and using the phone to communicate with him was a violation of the law that presaged loss of liberties under the USA Patriot Act (as with the Patriot Act, few people took notice of the Antiterrorism Act when passed). 

Koeltl refused to find the material support for terrorism statute unconstitutionally overbroad, saying its prohibitions are content-neutral and its purposes are "aimed not at speech but at conduct." He let stand charges that Stewart violated the conditions imposed upon her when she visited Rahman in his prison hospital cell. It was there that she is alleged to have used subterfuge so that her client could pass messages to the Islamic Group through an interpreter whom Stewart brought with her to translate her conversations with Rahman (Stewart does not speak Arabic).

Attorney General John Ashcroft signed an executive order giving him the power to order the Bureau of Prisons to monitor certain attorney-client conversations. Stewart was the first, and to date, only, defense attorney charged with violating the conditions imposed on attorney-client communications. Known as SAMs (for Special Administrative Measures), the conditions are arbitrarily imposed at the whim of the Attorney General. The attorney only knows that he or she may be monitored while engaging in what used to be thought of as sacrosanct communication afforded the highest and oldest privilege under the law--the attorney client privilege. Stewart did not know she was under surveillance until she was indicted.

While not admitting that she violated the SAMs, Tigar argued that Stewart was forced to sign what the government put before her in order to do her duty to her client. A strong argument could be made that the purpose of SAMs are to chill attorney-client conduct related to certain defendants. For an attorney has two choices: sign the SAM and see the client, or not-sign and abrogate their legal duty to the client. It is troubling that Judge Koeltl let these charges stand, for a government win would have a dramatic impact on defense attorneys. For while few defense attorneys will be charged as terrorists, any attorney representing anyone upon whom Ashcroft wants to conduct surveillance (or even the attorney herself) could be the target of a SAM. 

The net result of Judge Koeltl's decision is that while Stewart is not facing terrorist charges, she is being charged for other crimes arising out of the same acts--speaking to and about her client. The heart of the case against Stewart remains what it always has been--defending the 6th amendment rights of defendants to have a meaningful defense (hard to do with the government is listening to your conversations with your client) and the right of attorneys to diligently and zealously represent their clients, as lawyer conduct codes demands.

Stewart and Tigar were guests on the July 23 edition of Democracy Now, the Pacifica Radio Network show hosted by Amy Goodman. Tigar said that Judge Koeltl's opinion protects not only lawyers from being charged as terrorists, but ordinary citizens from being prosecuted for speaking out against events such as aspects of the war on terror and the war in Iraq.

Not willing to call it quits just yet, prosecutors said they were exploring possibilities of an appeal. "We continue to believe that the statute prohibiting material support of terrorism is constitutional, and we are reviewing our appellate options," said a spokesman for James B. Comey, the United States attorney in Manhattan.

Read more about the Lynne Stewart case by linking to my articles on this page.

Posted by Elaine Cassel at July 24, 2003 5:37 AM

 

Federal Judge in Virginia Throws Out Murder Conviction

Filed under: Imported

Thank you God, there is still a judge or two who does justice. Number one on the list is U.S. District Judge for the Eastern District of Virginia, Leonie Brinkema, who is standing her gound on the Zacarias Moussaoui case. She is asking the government to tell her what its punishment should be for violating her order to produce a key prosecution witness who may exculpate Moussaoui. Like a good authoritative parent, who tries to inculcate self-discipline in her children, she is giving them the opportunity to show maturity and responsible behavior. And, if the government says it has done no wrong, then Brinkema should do what the prosecutors ask when the tables are turned and a defendant shows no remorse. She should throw the book at them.

Now, Judge Brinkema's colleague, Judge Gerald Bruce Lee, has taken the gutsy move of vacating the conviction of Jay Lentz, whom an Alexandria jury found guilty of the across state-lines kidnapping  and murder of his wife, Doris.

There were, however, a few problems with the case: there was no body, no weapon, no motive, no crime scene, no evidence of any kind to even show that a murder took place, let alone at Lentz's hands. Doris Lentz just disappeared, and her blood-splattered automobile was all the prosecutors had to suggest foul play.

Judge Lee also chided the always over-zealous and over-weaning prosecutors for, literally, making a "federal case" out of state murder charge. We know why they do that, don't we?  Because they want to crank up the death penalty numbers in federal courts. Well, they lost another big one.

As previously reported on this site, Attorney General John Ashcroft, on a mission to bring the death penalty to every possible case, had lost 16 of 17 such efforts since he was crowned the king of self-righteousness.  Now make that number 17-1. The jury recommended life without parole because the daughter of the couple pled for her father to live. Give them more sense than Ashcroft and the prosecutors on that score.

Judge Lee's assessment of the case was without equivocation, "To allow this conviction of kidnapping resulting in murder to stand, would be allowing the federal government, in essence, to secure a conviction for first-degree murder without having to support ..... that offense with evidence. ..... This Court is unwilling to contort the law of federal kidnapping to fit the facts of this case."

Would that John Ashcroft and the lawyers at his command would likewise respect the law and the Constitution, which places limits on executive powers. They won't discipline themselves but, thank goodness, at least two judges are willing to do it for them. That is, unless and  until the 4th Circuit reverses Judge Lee and reinstates the jury verdict.  That, from the most pro-Bush/Ashcroft federal appellate court in the country, would come as no surprise. 

Posted by Elaine Cassel at July 23, 2003 6:06 AM

 

No Free Speech Zone on Airlines

Filed under: Imported

Are you outraged at having to show identification and be searched before boarding an airplane? I am searched every time I fly, and was told by a friend who works in airport security that it is likely my articles that have me identified by a code on the boarding pass.  Because of this, I only fly when I must.  I am also refusing to enter places where searches are required--like concerts and some movie theatres. These searches are pointless intrusions into physical liberty, and are blatant violations of the 4th Amendment's prohibitions against unreasonable searches and searches.

The law has defined a "reasonable" warrantless search as one predicated on some suspicion of wrongdoing.  But that requirement went out the window not only with the USA Patriot Act, but with airport security rules constantly being tightened by the Homeland Security Agency and Transportation Security Administration.  In Washington, DC airports, you cannot get to the gate without a boarding pass. Until a few weeks ago, an unticketed person could get to the gate by showing identification and being search. What is the purpose of this rule?  Why restrict the vast majority of the airport's space only to passengers?

John Gilmore is incensed about the requirement of showing identification to fly.  And he is furious about something that happened to him recently, when a lapel button landed him and his travelling companion on the tarmac.

Here is his story, courtesy of CounterPunch.

************

I'm suing John Ashcroft, two airlines, and various other agencies over making people show IDs to fly -- an intrusive measure that provides no
security. But I would be hard pressed to come up with a security measure more useless and intrusive than turning a plane around because of a
political button on someone's lapel.

My sweetheart Annie and I tried to fly to London today
(Friday) on British Airways. We started at SFO, showed our
passports and got through all the rigamarole, and were
seated on the plane while it taxied out toward takeoff.
Suddenly a flight steward, Cabin Service Director Khaleel
Miyan, loomed in front of me and demanded that I remove a
small 1" button pinned to my left lapel. I declined, saying
that it was a political statement and that he had no right
to censor passengers' political speech. The button, which
was created by political activist Emi Koyama, says
"Suspected Terrorist". Large images of the button and I
appear in the cover story of Reason Magazine this month, and
the story is entitled "Suspected Terrorist".

The steward returned with Capt. Peter Hughes. The captain
requested, and then demanded, that I remove the button (they
called it a "badge"). He said that I would endanger the
aircraft and commit a federal crime if I did not take it
off. I told him that it was a political statement and
declined to remove it.

They turned the plane around and brought it back to the
gate, delaying 300 passengers on a full flight.

We were met at the jetway by Carol Spear, Station Manager
for BA at SFO. She stated that since the captain had told
her he was refusing to transport me as a passenger, she had
no other course but to take me off the plane. I offered no
resistance. I reminded her of the court case that United
lost when their captain removed a Middle Eastern man who had
done nothing wrong, merely because "he made me
uncomfortable". She said that she had no choice but to
uphold the captain and that we could sort it out in court
later, if necessary. She said that my button was in "poor
taste".

Later, after consulting with (unspecified) security people,
Carol said that if we wanted to fly on the second and last
flight of the day, we would be required to remove the button
and put it into our checked luggage (or give it to her). And
also, our hand-carried baggage would have to be searched to
make sure that we didn't carry any more of these terrorist
buttons onto the flight and put them on, endangering the
mental states of the passengers and crew.

I said that I understood that she had refused me passage on
the first flight because the captain had refused to carry
me, but I didn't understand why I was being refused passage
on the second one. I suggested that BA might have captains
with different opinions about free speech, and that I'd be
happy to talk with the second captain to see if he would
carry me. She said that the captain was too busy to talk
with me, and that speaking broadly, she didn't think BA had
any captains who would allow someone on a flight wearing a
button that said "Suspected Terrorist". She said that BA has
discretion to decline to fly anyone. (And here I had thought
they were a common carrier, obliged to carry anyone who'll
pay the fare, without discrimination.) She said that
passengers and crew are nervous about terrorism and that
mentioning it bothers them, and that is grounds to exclude
me. I suggested that if they wanted to exclude mentions of
terrorists from the airplane, then they should remove all
the newspapers from it too.

I asked whether I would be permitted to fly if I wore other
buttons, perhaps one saying "Hooray for Tony Blair". She
said she thought that would be OK. I said, how about
"Terrorism is Evil". She said that I probably wouldn't get
on. I started to discuss other possible buttons, like
"Oppose Terrorism", trying to figure out what kinds of
political speech I would be permitted to express in a BA
plane, but she said that we could stand there making
hypotheticals all night and she wasn't interested.
Ultimately, I was refused passage because I would not censor
myself at her command.

After the whole interaction was over, I offered to tell her,
just for her own information, what the button means and why
I wear it. She was curious. I told her that it refers to all
of us, everyone, being suspected of being terrorists, being
searched without cause, being queued in lines and pens,
forced to take our shoes off, to identify ourselves, to
drink our own breast milk, to submit to indignities.
Everyone is a suspected terrorist in today's America,
including all the innocent people, and that's wrong. That's
what it means. The terrorists have won if we turn our
country into an authoritarian theocracy "to defeat
terrorism". I suggested that British Airways had
demonstrated that trend brilliantly today. She understood
but wasn't sympathetic -- like most of the people whose
individual actions are turning the country into a police
state.

Annie asked why she, Annie, was not allowed to fly. She
wasn't wearing or carrying any objectionable buttons. Carol
said it's because of her association with me. I couldn't
have put it better myself -- guilt by association. I asked
whether Annie would have been able to fly if she had checked
in separately, and got no answer. (Indeed it was I who
pointed out to the crew that Annie and I were traveling
together, since we were seated about ten rows apart due to
the full flight. I was afraid that they'd take me off the
plane without her even knowing.)

Annie later told me that the stewardess who had gone to
fetch her said that she thought the button was something
that the security people had made me wear to warn the flight
crew that I was a suspected terrorist(!). Now that would be
really secure.

I spoke with the passengers around me before being removed
from the plane, and none of them seemed to have any problem
with sitting next to me for 10 hours going to London. None
of them had even noticed the button before the crew pointed
it out, and none of them objected to it after seeing it. It
was just the crew that had problems, as far as I could tell.

John Gilmore

PS: For those who know I don't fly in the US because of the
ID demand: I'm willing to show a passport to travel to
another country. I'm not willing to show ID -- an "internal
passport" -- to fly within my own country.

Posted by Elaine Cassel at July 22, 2003 6:22 AM

 

How Goes the Occupation of Iraq? Ask the Iraqi People

Filed under: Imported

Posted by Elaine Cassel at July 21, 2003 12:06 AM

 

Running Against Ashcroft

Filed under: Imported

As Democratic candidates struggle to find issues that will resonate with the public, a consensus has emerged with respect to one:  John Ashcroft.  As reported in The New York Times, the Attorney General gets the respect of none of them. Gephardt says he would fire him within five seconds of taking the oath, Edwards says Ashcroft must be stopped from stealing our rights and liberties, and Kerry promises that there will be no trampling of the Bill of Rights on his watch.

Ashcroft is drawing fire from conservative Republicans as well, who oppose his loathing of states' rights and individual freedoms.

But, save for Howard Dean (who was not a member of Congress), all of the candidates--Kerry, Gephardt, Edwards, Lieberman, and Graham, were complicit with Ashcroft in the Constitutional revisions that took became law under the USA Patriot Act.

Some have likened him to Hillary Clinton and James Watt, characters who had a polarizing effect on the electorate. Many Republicans fear that Ashcroft's extremism will hurt the Republicans. Except for the Patriot Act, which, until now, has undergone little scrutiny (let alone condemnation), Ashcroft's views on abortion (life begins at conception), the death penalty (every case eligible for the death penalty should be prosecuted as such), and assisted suicide and medical marijuana (which saw him interfering with state law in an unprecedented manner), Ashcroft's views are extreme, even for Republicans.

But history indicates that an unpopular cabinet secretary has little, if any impact, on a president's reelection. And civil liberties cannot be high on the Democrats' list of campaign promises. After all, their support for the Patriot Act, the wars on "terror," Afghanistan, and Iraq, and their adulation this week of British Prime Minister Tony Blair's warmongering speech filled with warnings like "things are different now" for we are in a "war without borders," leave them little room to criticize Ashcroft.

Could it also be that they realize if they regain control of either the Congress or the White House they, too, can enjoy the fruits of Ashcroft's labors?

 

 

Posted by Elaine Cassel at July 19, 2003 6:07 AM

 

John Ashcroft: Equal Opportunity Contempt for Constitutions

Filed under: Imported

It seems as if Attorney General John Ashcroft never met a constitution he liked. His contempt for the US Constitution is the main theme of this website. But the AG does not favor one constitution over another with his contempt, if Puerto Rico is an example.

The Puerto Rican constitution bans the death penalty. Yet, Ashcroft and his prosecutors are seeking the ultimate punishment against men accused of kidnapping and murder and Puerto Ricans are not happy.

As reported in The New York Times, local politicians, members of the legal establishment, scholars and ordinary residents have denounced the trial, now in its second week. The president of the Puerto Rican bar association wonders what meaning law has when the Constitution is not respected.  He and other opponents say the prosecution is an assault on Puerto Rico's legal autonomy.

But federal prosecutors say that Puerto Rico's laws and constitution must bow to the wishes and whims of Ashcroft and his prosecutors.

Puerto Rico is also heavily Roman Catholic, and polls show that many residents oppose capital punishment on religious and moral grounds. During the protracted jury selection for the current trial, many potential jurors were rejected because they said they could never impose the death penalty.

 In court papers, prosecutors have said that federal criminal laws override local laws, whether they are statutes, state constitutions or the Puerto Rican Constitution.  The irony that Puerto Ricans cannot vote for president of the United States, but must bow to federal law, does not sit well with sitting federal judge Salvador E. Casellas.  He noted that Puerto Ricans have no vote in presidential elections and have only a single, nonvoting representative in Congress. 

Casellas had formerly dismissed the capital charges against the defendant but the First Circuit Court of appeals, which hears all appeals of federal cases from Puerto Rico, reversed Judge Casellas's decision in 2001 and reinstated the capital charges.

The current Justice Department has been seeking the death penalty more often and in more places than earlier administrations had, and Ashcroft and other top level Justice Department employees override local prosecutor's recommendations not to seek death. 

There is a bright spot, however. In 16 recent federal capital trials, juries rejected the death penalty 15 times.

 

Posted by Elaine Cassel at July 18, 2003 5:45 AM

 

John Ashcroft's War on Librarians

Filed under: Imported

One of the joys of having this web log, for which I am grateful to the editors of City Pages, is that readers from all over the world share their concerns and experiences with the Bush Administration's war on civil liberties.

From time to time, I will post the comments of readers who have been victims of the war at home--the war on civil liberties.

Today's story is from Patrick Grace, a librarian in Florida.

I work in a public library. Public libraries have a tradition of adhering to principles of intellectual freedom. According to these principles we provide
diverse literature to our diverse population. We oppose censorship. Intellectual freedom is the opposite of censorship. Although libraries are often challenged by citizens about some or other of our literature, we usually do not give in to the challenges.

Another aspect of the intellectual freedom principles is respect for our patrons' privacy. We don't share people's borrowing records. We don't tell parents what their children are reading and we don't tell police
what individuals are reading, unless they have a court order.

People have been coming to public libraries in the US for over a century. Literature, information, literacy help, student help and resources have always been available. Public libraries have tended to reflect the mores of the time and place. Intellectual freedom statements and principles have been a part of the library mission only since the late 1930's. Before that,
for example during World War I, libraries were complicit in the censorship that existed. Since the 60's many if not most public libraries have strongly
resisted censorship.

It is always a struggle to uphold these principles. Now, unfortunately, it seems that this struggle is partially over, at least for the time being. The USA Patriot Act gives federal law enforcement the right to access borrowers records on demand, with no showing of cause. Further, according to the law, the library personnel are not allowed to tell anyone when the government comes snooping.

Has my library been approached by the feds about somebody's records? How would I know?  It's a secret. If a librarian tells the patron or resists law enforcement, he or she could be prosecuted. Has anybody been turned off to library use because of the anti-privacy provisions of the USA Patriot act? I don't know that either, because it has always been difficult or impossible to collect non-use statistics in libraries.

One good thing about online library catalogs, at least some catalogs - they don't keep past borrowing records. After books are returned the record is gone and can't even be recovered by special programming. My library uses one of the most popular catalogs, and the above is true here. So, only the present records, what the borrower has out, and what he or she has a hold on, can be seen at any time.

How many people are we losing to library surveillance and who are they? How about teen-agers wanting to learn more about sex? Do they want the FBI looking over their shoulders? What about an entrepreneur who wants to export a product to markets in the Middle East? Is she going to want the feds to watch her look at regulations about trade with, e.g., Syria? You can think of many examples from your own experience, I am sure.

What is the effect of this gross invasion of privacy by big brother? Scaring people away from a huge source of information? If people are aware that their library use records are available on demand to government agents, are they going to shy away from information? Are students going to avoid studying Middle Eastern history and culture? Are teenagers going to avoid literature on sex education? Are hunters going to refrain from reading magazine articles on the latest hunting rifles, or books on gun safety?

Why is the government using this law on us? Do they really expect to catch a terrorist reading how-to-fly instruction books? Or do they realize that they are keeping their citizens ignorant by scaring them away
from the public library? Is ignorance what they are after?

So, what is it like to be a librarian working under this cloud, you may ask? Being a librarian has been a very enjoyable experience. Giving away information for free is a great experience. Connecting people with
information, helping them to write resumes, showing them where the sources for grants are, helping a student find sources for a term paper, helping retired folks look up records on their ancestors, suggesting
novels to readers, showing homeless people how to use the Internet, helping immigrants find forms for citizenship applications, these are small but significant experiences. Put them all together and they enrich my life.  It is not a good feeling to know that these experiences are under attack, not from some foreign evildoers, but from my own government. It is
demoralizing.

Fortunately, there is some hope. Some Congresspeople have found the courage to introduce a bill in Congress called the Freedom to Read Act. It would require probable cause before a judge would allow police access to library records. Apparently, this would bring us back to pre-USA Patriot  Act status. And I can't help but admire the libraries which have posted
signs alerting library users that big brother may be watching. Maybe they can help people start to fight back.

Posted by Elaine Cassel at July 17, 2003 5:58 AM

 

U.S. District Court Judge Leonie Brinkema: She Who Must Not Be Obeyed

Filed under: Imported

We knew this was coming. The government has said all along it will not obey U.S. District Judge Leonie Brinkema's order to allow Zacarias Moussaoui and his lawyers to interview a key prosecution witness.  A witness who may exculpate Moussaoui altogether and lead to the total collapse of the government's case. Having failed so far to nab a big one in its terrorism trials (and the trials exact a terror of sorts on attorneys), prosecutors desperately want to try Moussaoui in federal court in Alexandria, Virginia, where, they presume, a jury will sentence him to death. They may be wrong on that one--as juries are not as quick to give Ashcroft and company the death penalty as he thought they would be.

The last few days have seen frantic attempts by the government to convince the 4th Circuit Court of Appeals sitting in Richmond that Brinkema is wrong, wrong, wrong and must be overturned.  When a 3-judge panel of the court ruled that the government's appeal was not "ripe" (meaning that the appeal should not go forward at least until the order is violated), Ashcroft and crew asked the court to reconsider its ruling (it refused to do so), and appealed not once, but twice, to the full panel of 12 judges to overturn the 3-judge panel order.

Five of the 12 judges wanted to reverse the 3-judge panel. Judge J. Michael Luttig, a Scalia-clone if ever there was one, said that the majority and Brinkema's positions would put at risk the government's efforts to gather intelligence against the enemy (a laughable proposition now that we know how sorry our intelligence professionals are). But Chief Judge William W. Wilkins, a member of the original panel, accused Luttig and the rest of the dissenters of letting their emotions get in the way of the legal argument. 

Thwarted by efforts to get the full panel to overturn Judge Brinkema, on July 14 the government announced that her order is "unacceptable," and as much as suggested that to obey it would risk national security and lead to additional "murders" of Americans.

The ball is now in Brinkema's court. Will she dismiss the case? If so, the government will ask Brinkema to stay her order (which she will likely do), and Ashcroft will rush to the 4th Circuit and appeal her dismissal. Then the real fireworks will begin, setting the stage for a showdown in the Supreme Court, regardless of the 4^th Circuit's decision. One does not need a crystal ball, however, to predict how that will turn out. Merely read the decision of the entire panel denying American citizen Yaser Hamdi's plea that he be either given an attorney, charged, and tried or be released from a navy brig. No dice, said the court. He can stay there forever, or so they seemed to suggest. Whatever the President wants in a time of war, he gets.  Bad news, given that this is a war without end.

But what if Brinkema orders a lesser sanction? Say removing the death penalty as a sentencing option? As bloodthirsty as Ashcroft is, that would likely not sit well with him, either, for he will stop at nothing to get death.

Judge Brinkema has been shown amazing courage and wisdom. The gossip in the courthouse (the veracity of which I cannot vouch for) had her volunteering to take the case when all the other judges (all male, interestingly) begged off.  She has put up with continuous abuse from Moussaoui and strong criticism from Ashcroft, his prosecutors, and most of the Appeals Court.

This is one time when I am certain that a federal judge is intent on doing justice--a rarity today and an act that will surely not go unpunished.

Posted by Elaine Cassel at July 16, 2003 12:28 AM

 

Department of Justice: No Tolerance for Lawyer Who Does Justice

Filed under: Imported

D.C. attorney Jesselyn Radack was once employed in the Department of Justice's Office of Professional Responsibility (an oxymoron these days, if you ask me, but that is another article). She was the wrong woman in the wrong place at the right time. In 2002, Ashcroft was trying to get the lethal injection for young John Walker Lindh. To hear Ashcroft describe him, Lindh, the misguided, naive, well-to-do student of Islam, was the anti-Christ himself. 

FBI and DOJ had some explaining to do about Lindh's so-called confessions and whether his Miranda rights (not to be questioned without an attorney present, if he so chose) were violated. At first, Justice said he never asked for a lawyer. Then they conceded that his father asked for a lawyer but they didn't know about it. Then they said that his father asked for a lawyer and they did know about it, but that didn't count because his father did not have the right to ask for a lawyer for his son. His son had to ask. But then, Lindh did ask. Sort of. He said I think my dad is getting me a lawyer. DOJ interrogators, who had removed Lindh from Afghanistan to some ship and kept him in a cargo box, kept on questioning and Lindh made what to the government were incriminating statements.

Back to Jesselyn Radack. Her story, earlier versions of which were reported in The New Yorker and Newsweek, has taken a turn for the worst. As reported in The American Lawyer, not only was Radack forced to resign from DOJ, she has been fired by the law firm that subsequently hired her. And she may be facing criminal prosecution.

That's right, the Department of Justice is hot on the trail of the Department of Justice attorney who had the audacity to send copies of emails to the federal judge that suggested that Justice did know that Lindh's father and the lawyer he retained were telling DOJ contacts holding Lindh not to question him without his lawyer being present. The source of the advice not to question Lindh came from Radack herself--after all, that was her job. To advise DOJ employees about thorny legal matters.

According to the article by Douglas McCollam, Radack advised John De Pue, a counterterrorism prosecutor, in a series of emails, that since Lindh's father had hired James Brosnahan of Morrison & Foerster, she didn't think the Federal Bureau of Investigation could question Lindh alone. Others at Justice disagreed, and Lindh's statements became the basis of a
10-count indictment.

When Radack argued that her e-mails should be disclosed to the judge hearing Lindh's case, she and her bosses ended up at odds. In April 2002 Radack quit the Justice Department and joined the D.C. branch of New York's Hawkins, Delafield & Wood.

Two months later her e-mails showed up in a story by Newsweek's Michael Isikoff. And about two weeks after that, she got a call from Ronald Powell, a special agent for the Justice Department's Office of Inspector General. As Radack begin to realize that she was a potential prosecution target, she hired an attorney to defend her. Her law firm could not stand the heat and fired her.

So now, a 32-year old woman of principle, with two children, a third on the way, and suffering from multiple sclerosis, has DOJ breathing down her neck.  They didn't get to put Lindh to death, partly because the validity of some of his statements were in question, but they got 20 years out of the young man's life.

What they didn't get from Lindh, they are trying to make up by ruining Radack's legal career, and even more. And if having DOJ trying to ruin your life is not enough, after the Hawkins firm fired her, they appealed her receipt of unemployment benefits. She won that round. But, they struck back.  They told her they turned over her office computer to the Justice Department.

Radack's professional and personal lives are in limbo because Radack dared to mess with one of John Ashcroft's cases. His prosecutors were left bumbling and scrambling, they had to negotiate with the attorney the FBI would not let Lindh see, and someone is going to pay.  This time, it is the attorney who stood for the right thing. That is the wrong thing to do in these times. 

 

 

Posted by Elaine Cassel at July 15, 2003 5:12 AM

 

Thoughts on Bastille Day, War, and the Price of Freedom

Filed under: Imported

It's Bastille Day.  In light of the Bush regime's public relations campaign to bash the freedom-loving French, Americans need to be reminded that the French Revolution was fueled by the masses longing for liberty. In comparison to the American Revolution, headed by aristocratic slave-owning white men who did not want to submit to King George, Americans should find more to identify with in the French Revolution, especially today. 

For the French, the storming of the Bastille on July 14, 1789 symbolizes liberty,democracy and the struggle against all forms of oppression. Day by day, Americans are becoming more enslaved to the Bush regime's trampling of constitutional liberties.  Ironically, the White House and Congressional kitchens' idiotic renaming of "french fries" as "freedom fries" had it wrong. It is the French who are still free; we decidedly are not.

Along those lines, this article by Sheldon Rampton and John Stauber for London's The Guardian exposes just how cheap liberty is to Americans.  The United States government has used fear to sell the loss of liberty post 9/11 and the Iraq War. Literally and figuratively. Since Bush could not sell Europe on America (in spite of enormous post-9/11 goodwill directed our way) and since the Administration was doing all it could to make the Muslims hate us even more (buying the administration line that 9/11 happened because "they hate our freedom"), it set out to sell Americans on the need to do what Americans do best--spending money needlessly and ostentatiously. In the name of "freedom." The hijackers hate our freedom. Ergo, go shopping. Many Americans who cannot even read the lines, let alone read between the lines, ate it up.  An excuse to max out the credit cards.  Remodel the house.  Go to Disney World.  Buy more "stuff" to put in their macmansions. Show your patriotism. Buy, buy, and buy some more.

While Americans were out spending money, Bush, Rove, Rumsfeld, Ashcroft, a lazy congress, and a wimpy judiciary were selling freedom down the river. Now Bush is spending $3 billion a month to keep the fires of "freedom" burning in Iraq, and is gearing up to spend hundreds of millions on his reelection campaign.  His "Top Gun" stunt on the carrier off California in May was just the beginning of his Hollywoodesque campaign appearances that taxpayers are financing (the Washington Post reported this week that Bush's billings to the government for his campaign jaunts thinly disguised as policy presentations were five times those of Clinton at the same time in his presidency). 

From the selllng of America, to the selling of freedom, to the selling of the Bush regime to a brain-dead electorate, the public relations puppets in the White House are pulling the strings. And, so far, Americans are buying. And selling freedom--cheap.

Here's another perspective:

Trading on Fear

Sheldon Rampton and John Stauber
Saturday July 12, 2003
The Guardian

"The United States lost the public relations war in the Muslim world a long time ago," Osama Siblani, publisher of the Arab American News, said in October 2001. "They could have the prophet Mohammed doing public relations and it wouldn't help."

At home in the US, the propaganda war has been more effective. And a key component has been fear: fear of terrorism and fear of attack.

Early scholars who studied propaganda called it a "hypodermic needle approach" to communication, in which the communicator's objective was to "inject" his ideas into the minds of the target population. Since propaganda is often aimed at persuading people to do things that are not in their own best interests, it frequently seeks to bypass the rational brain altogether and manipulate us on a more primitive level, appealing to emotional symbolism.

Television uses sudden, loud noises to provoke a startled response, bright colours, violence - not because these things are inherently appealing, but because they catch our attention and keep us watching. When these practices are criticised, advertisers and TV executives respond that they do this because this is what their "audience wants". In fact, however, they are appealing selectively to certain aspects of human nature - the most primitive aspects, because those are the most predictable. Fear is one of the most primitive emotions in the human psyche, and it definitely keeps us watching. If the mere ability to keep people watching were really synonymous with "giving audiences what they want", we would have to conclude that people "want" terrorism. On September 11, Osama bin Laden kept the entire world watching. As much as people hated what they were seeing, the power of their emotions kept them from turning away.

And fear can make people do other things they would not do if they were thinking rationally. During the war crimes trials at Nuremberg, psychologist Gustave Gilbert visited Nazi Reichsmarshall Hermann Goering in his prison cell. "We got around to the subject of war again and I said that, contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction," Gilbert wrote in his journal, Nuremberg Diary.

"Why, of course, the people don't want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece? ... That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a parliament or a communist dictatorship ... That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

Politicians and terrorists are not the only propagandists who use fear to drive human behaviour in irrational directions. A striking recent use of fear psychology in marketing occurred following Operation Desert Storm in 1991. During the war, television coverage of armoured Humvees sweeping across the desert helped to launch the Hummer, a consumer version of a vehicle originally designed exclusively for military use. The initial idea to make a consumer version came from the actor Arnold Schwarzenegger, who wanted a tough-looking, road-warrior vehicle for himself. At his prodding, AM General (what was left of the old American Motors) began making civilian Hummers in 1992, with the first vehicle off the assembly line going to Schwarzenegger himself.

In addition to the Hummer, the war helped to launch a broader sports utility vehicle (SUV) craze. Psychiatrist Clotaire Rapaille, a consultant to the automobile industry, conducted studies of postwar consumer psyches for Chrysler and reported that Americans wanted "aggressive" cars. In interviews with Keith Bradsher, the former Detroit bureau chief for the New York Times, Rapaille discussed the results of his research. SUVs, he said, were "weapons" - "armoured cars for the battlefield" - that appealed to Americans' deepest fears of violence and crime.

Another hostility-intensification feature is the "grill guard" promoted by SUV manufacturers. "Grill guards, useful mainly for pushing oryx out of the road in Namibia, have no application under normal driving conditions," says writer Gregg Easterbrook. "But they make SUVs look angrier, especially when viewed through a rearview mirror ... [They] also increase the chance that an SUV will kill someone in an accident."

Deliberately marketed as "urban assault luxury vehicles", SUVs exploit fear while doing nothing to make people safer. They make their owners feel safe, not by protecting them, but by feeding their aggressive impulses. Due to SUVs' propensity for rollovers, notes Bradsher, the occupant death rate in SUVs is actually 6% higher than for cars, 8% in the largest SUVs. Of course, they also get worse mileage. According to dealers, Hummers average a mere eight to 10 miles a gallon - a figure that takes on additional significance in light of the role that dependency on foreign oil has played in shaping US relations with countries in the Middle East. With this combination of features, selling SUVs on their merits would be a challenge, which is why Rapaille consistently advises Detroit to rely instead on irrational fear appeals.

Other products and causes have also exploited fear-based marketing following September 11. "The trick in 2002, say public affairs and budget experts, will be to redefine your pet issue or product as a matter of homeland security," wrote PR Week. "If you can convince Congress that your company's widget will strengthen America's borders, or that funding your client's pet project will make America less dependent on foreign resources, you just might be able to get what you're looking for."

Alaska senator Frank Murkowski used fear of terrorism to press for federal approval of oil drilling in the Arctic National Wildlife Refuge, telling his colleagues that US purchases of foreign oil helped to subsidise Saddam Hussein and Palestinian suicide bombers. The nuclear power industry lobbied for approval of Yucca Mountain, Nevada, as a repository for high-level radioactive waste by claiming that shipping the waste there would keep nuclear weapons material from falling into the hands of terrorists. Of course, they didn't propose shutting down nuclear power plants, which themselves are prime targets for terrorists.

The National Drug Council retooled the war on drugs with TV ads telling people that smoking marijuana helped to fund terrorism. Environmentalists attempted to take the fund-a-terrorist trope in a different direction, teaming up with columnist Arianna Huffington to launch the "Detroit Project", which produced TV ads modelled after the National Drug Council ads. "This is George," a voiceover said. "This is the gas that George bought for his SUV." The screen then showed a map of the Middle East. "These are the countries where the executives bought the oil that made the gas that George bought for his SUV." The picture switched to a scene of armed terrorists in a desert. "And these are the terrorists who get money from those countries every time George fills up his SUV." In Detroit and elsewhere, however, TV stations that had been only too happy to run the White House anti-drugs ads refused to accept the Detroit Project commercials, calling them "totally inappropriate".

September 11 was frequently compared to the Japanese attack on Pearl Harbor, with White House officials warning that the war on terror would be prolonged and difficult like the second world war, and would require similar sacrifices. But whatever those sacrifices may entail, almost from the start it was clear that they would not include frugality. During the second world war, Americans conserved resources as never before. Rationing was imposed on petrol, tyres and even food. People collected waste such as paper and household cooking scraps so that it could be recycled and used for the war effort. Compare that with the headline that ran in O'Dwyer's PR Daily on September 24, less than two weeks after the terrorist attack: "PR Needed To Keep Consumers Spending."

President Bush himself appeared in TV commercials, urging Americans to "live their lives" by going ahead with plans for vacations and other consumer purchases. "The president of the US is encouraging us to buy," wrote marketer Chuck Kelly in an editorial for the Minneapolis-St Paul Star Tribune, which argued that America was "embarking on a journey of spiritual patriotism" that "is about pride, loyalty, caring and believing" - and, of course, selling. "As marketers, we have the responsibility to keep the economy rolling," wrote Kelly. "Our job is to create customers during one of the more difficult times in our history."

Fear also provided the basis for much of the Bush administration's surging popularity following September 11. In the week immediately prior to the terrorist attacks, Bush's standing in opinion polls was at its lowest point ever, with only 50% of respondents giving him a positive rating. Within two days of the attack, that number shot up to 82%. Since then, whenever the public's attention has begun to shift away from topics such as war and terrorism, Bush has seen his domestic popularity ratings slip downward, spiking up again when war talk fills the airwaves. By March 13-14 2003, his popularity had fallen to 53% - essentially where he stood with the public prior to 9/11. On March 18, Bush declared war with Iraq, and the ratings shot up again to 68% - even when, briefly, it appeared that the war might be going badly.

Only four presidents other than Bush have seen their job rating meet or surpass the 80% mark:

· Franklin Delano Roosevelt reached his highest rating ever - 84% - immediately after the Japanese attacked Pearl Harbor.

· Harry Truman hit 87% right after FDR died during the final, crucial phase of the second world war.

· John F Kennedy hit 83% right after the colossal failure of the Bay of Pigs invasion of Cuba.

· Dubya's dad, President George HW Bush, hit 89% during Operation Desert Storm.

It seems to be a law of history that times of war and national fear are accompanied by rollbacks of civil liberties and attacks on dissent. During the civil war, Abraham Lincoln suspended the right of habeas corpus. The second world war brought the internment of Japanese-Americans and the cold war McCarthyism. These examples pale compared with the uses of fear to justify mass killings, torture and political arrests in countries such as Mao's China, Stalin's Russia or Saddam's Iraq. Yet these episodes have been dark moments in America's history.

Although the Bush administration took pains to insist that "Muslims are not the enemy" and that it viewed Islam as a "religion of peace", it was unable to prevent a series of verbal attacks against Muslims that have occurred in the US following 9/11 - with some of the attacks coming from Bush's strongest supporters in the conservative movement. "This is no time to be precious about locating the exact individuals directly involved in this particular terrorist attack," wrote columnist Ann Coulter - now famously - two days after the attacks. "We should invade their countries, kill their leaders and convert them to Christianity. We weren't punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. That's war. And this is war."

Of course, Coulter's column does not reflect the mainstream of US opinion. But it offers a telling illustration of the way that fear can drive people to say and do things that make them feel brave and powerful while actually making them less safe by fanning the flames of intolerance and violence.

Shortly after Coulter's column appeared, it resurfaced on the website of the Mujahideen Lashkar-e-Taiba - one of the largest militant Islamist groups in Pakistan - which works closely with al-Qaida. At the time, the Lashkar-e-Taiba site was decorated with an image that depicted a hairy, monstrous hand with claws in place of fingernails, from which blood dripped on to a burning globe of planet earth. A star of David decorated the wrist of the hairy hand, and behind it stood an American flag. The reproduction of Coulter's column used bold, red letters to highlight the sentence that said to "invade their countries, kill their leaders and convert them to Christianity". To make the point even stronger, the webmaster added a comment: "We told you so. Is anyone listening out there? The noose is already around our necks. The preparation for genocide of ALL Muslims has begun ... The media is now doing its groundwork to create more hostility towards Islam and Muslims to the point that no one will oppose this mass murder which is about to take place. Mosques will be shut down, schools will be closed, Muslims will be arrested, and executed. There may even be special awards set up to kill Muslims. Millions and millions will be slaughtered like sheep. Remember these words because it is coming. The only safe refuge you have is Allah."

Corporate spin doctors, thinktanks and conservative politicians have taken up the rhetoric of fear for their own purposes. Even before 9/11, many of them were engaged in an ongoing effort to demonise environmentalists and other activist groups by associating them with terrorism. One striking indicator of this preoccupation is the fact that Congressman Scott McInnis (Republican, Colorado) had scheduled congressional hearings on "eco-terrorism" to be held on September 12 2001, one day after Congress itself was nearly destroyed in an attack by real terrorists. (The September 11 attacks forced McInnis temporarily to postpone his plans, rescheduling his hearings to February 2002.)

On October 7 2001, the Washington Times printed an editorial calling for "war against eco-terrorists," calling them "an eco-al-Qaida" with "a fanatical ideology and a twisted morality". Conservatives sometimes used the war on terrorism to demonise Democrats. The then Democratic Senate majority leader Tom Daschle was targeted by American Renewal, the lobbying wing of the Family Research Council, a conservative thinktank that spends most of its time promoting prayer in public schools and opposing gay rights. In newspaper ads, American Renewal attempted to paint Daschle and Saddam Hussein as "strange bedfellows". "What do Saddam Hussein and Senate majority leader Tom Daschle have in common?" stated a news release announcing the ad campaign. "Neither man wants America to drill for oil in Alaska's Arctic National Wildlife Refuge."

William J Bennett, Reagan's former education secretary, authored a book titled Why We Fight: Moral Clarity And The War On Terrorism. Through his organisation, Empower America, he launched Americans For Victory Over Terrorism, a group of well-connected Republicans including Jack Kemp, Jeane Kirkpatrick and Trent Lott. "The threats we face today are both external and internal: external in that there are groups and states that want to attack the United States; internal in that there are those who are attempting to use this opportunity to promulgate their agenda of 'blame America first'. Both threats stem from either a hatred for the American ideals of freedom and equality or a misunderstanding of those ideals and their practice," he stated.

Washington Times reporter Ellen Sorokin used terrorist-baiting to attack the National Education Association, America's largest teachers' union and a frequent opponent of Republican educational policies. The NEA's crime was to create a "Remember September 11" website for use as a teaching aid on the first anniversary of the attack. The NEA site had a red, white and blue motif, with links to the CIA and to Homeland Security websites, and it featured three speeches by Bush, whom it described as a "great American". In order to make the case that the NEA was somehow anti-American, Sorokin hunted about on the site and found a link to an essay preaching tolerance towards Arab- and Muslim-Americans. "Everyone wants the terrorists punished," the essay said, but "we must not act like [the terrorists] by lashing out at innocent people around us, or 'hating' them because of their origins ... Groups of people should not be judged by the actions of a few. It is wrong to condemn an entire group of people by association with religion, race, homeland, or even proximity."

In a stunning display of intellectual dishonesty, Sorokin took a single phrase - "Do not suggest any group is responsible" (referring to Arab-Americans in general) - and quoted it out of context to suggest that the NEA opposed holding the terrorists responsible for their deeds. Headlined "NEA delivers history lesson: Tells teachers not to cast 9/11 blame", her story went on to claim that the NEA simultaneously "takes a decidedly blame-America approach".

This, in turn, became the basis for a withering barrage of attacks as the rightwing media echo chamber, including TV, newspapers, talk radio and websites, amplified the accusation, complaining of "terrorism in the classroom" as "educators blame America and embrace Islam". In the Washington Post, George Will wrote that the NEA website "is as frightening, in its way, as any foreign threat". If, as Will insinuated, even schoolteachers are as scary as Saddam or Osama, no wonder the government needs to step in and crack the whip.

Since 9/11, laws have been passed that place new limits on citizen rights, while expanding the government's authority to spy on citizens. In October 2001, Congress passed the ambitiously named USA Patriot Act, which stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism". In addition to authorising unprecedented levels of surveillance and incarceration of both citizens and non-citizens, the Act included provisions that explicitly target people simply for engaging in classes of political speech that are expressly protected by the US constitution. It expanded the ability of police to spy on telephone and internet correspondence in anti-terrorism investigations and in routine criminal investigations. It authorised secret government searches, enabling the FBI and other government agencies to conduct searches without warrants and without notifying individuals that their property has been searched. It created a broad new definition of "domestic terrorism" under which political protesters can be charged as terrorists if they engage in conduct that "involves acts dangerous to human life". It also put the CIA back in the business of spying on US citizens and allowed the government to detain non-citizens for indefinite periods of time without trial. The Patriot Act was followed in November 2001 by a new executive order from Bush, authorising himself to order a trial in a military court for any non-citizen he designates, without a right of appeal or the protection of the Bill of Rights.

As if determined to prove that irony is not dead, the Ad Council launched a new series of public service advertisements, calling them a "Freedom Campaign", in July 2002. "What if America wasn't America? Freedom. Appreciate it. Cherish it. Protect it," read the tag line at the end of each TV ad, which attempted to celebrate freedom by depicting what America would look like without it. In one ad, a young man approaches a librarian with a question about a book he can't find. She tells him ominously that the book is no longer available, and the young man is taken away for questioning by a couple of government goons. The irony is that the Patriot Act had already empowered the FBI to seize book sales and library checkout records, while barring booksellers and librarians from saying anything about it to their patrons. It would be nice to imagine that someone at the Ad Council was trying to make a point in opposition to these encroachments on our freedoms. No such point was intended, according to Phil Dusenberry, who directed the ads.

In response to complaints about restrictions on civil liberties, the attorney general, John Ashcroft, testified before Congress, characterising "our critics" as "those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil." Dennis Pluchinsky, a senior intelligence analyst with the US state department, went further still in his critique of the media. "I accuse the media in the United States of treason," he stated in an opinion article in the Washington Post that suggested giving the media "an Osama bin Laden award" and advised, "the president and Congress should pass laws temporarily restricting the media from publishing any security information that can be used by our enemies".

At MSNBC, a cable TV news network, meanwhile, a six-month experiment to develop a liberal programme featuring Phil Donahue ended just before the war began, when Donahue's show was cancelled and replaced with a programme titled Countdown: Iraq. Although the network cited poor ratings as the reason for dumping Donahue, the New York Times reported that Donahue "was actually attracting more viewers than any other programme on MSNBC, even the channel's signature prime-time programme, Hardball with Chris Matthews". Further insight into the network's thinking appears in an internal NBC report leaked to AllYourTV.com, a website that covers the television industry. The NBC report recommended axing Donahue because he presented a "difficult public face for NBC in a time of war ... He seems to delight in presenting guests who are antiwar, anti-Bush and sceptical of the administration's motives." It went on to outline a possible nightmare scenario where the show becomes "a home for the liberal anti-war agenda at the same time that our competitors are waving the flag at every opportunity".

At the same time that Donahue was cancelled, MSNBC added to its line-up Michael Savage, who routinely refers to non-white countries as "turd world nations" and who charges that the US "is being taken over by the freaks, the cripples, the perverts and the mental defectives". In one broadcast, Savage justified ethnic slurs as a national security tool: "We need racist stereotypes right now of our enemy in order to encourage our warriors to kill the enemy."

In addition to restricting the number of anti-war voices on television and radio, media outlets often engaged in selective presentation. The main voices that television viewers saw opposing the war came from a handful of celebrities such as Sean Penn, Martin Sheen, Janeane Garofalo and Susan Sarandon - actors who could be dismissed as brie-eating Hollywood elitists. The newspapers and TV networks could have easily interviewed academics and other more traditional anti-war sources, but they rarely did. In a speech in the autumn of 2002, Senator Edward Kennedy "laid out what was arguably the most comprehensive case yet offered to the public questioning the Bush administration's policy and timing on Iraq", according to Michael Getler, the Washington Post's ombudsman. The next day, the Post devoted one sentence to the speech. Ironically, Kennedy made ample use in his remarks of the public testimony in Senate armed services committee hearings a week earlier by retired four-star army and marine corps generals who cautioned about attacking Iraq at this time - hearings that the Post also did not cover.

Peace groups attempted to purchase commercial time to broadcast ads for peace, but were refused air time by all the major networks and even MTV. CBS network president Martin Franks explained the refusal by saying, "We think that informed discussion comes from our news programming."

Like all good TV, the war in Iraq had a dramatic final act, broadcast during prime time - the sunlight gleaming over the waves as the president's fighter jet descended from the sky on to the USS Abraham Lincoln. The plane zoomed in, snagged a cable stretched across the flight deck and screeched to a stop, and Bush bounded out, dressed in a snug-fitting olive-green flight suit with his helmet tucked under his arm. He strode across the flight deck, posing for pictures and shaking hands with the crew of the carrier. He had even helped fly the jet, he told reporters. "Yes, I flew it," he said. "Yeah, of course, I liked it." Surrounded by gleaming military hardware and hundreds of cheering sailors in uniform, and with the words "Mission Accomplished" emblazoned on a huge banner at his back, he delivered a stirring speech in the glow of sunset that declared a "turning of the tide" in the war against terrorism. "We have fought for the cause of liberty, and for the peace of the world," Bush said. "Because of you, the tyrant has fallen, and Iraq is free." After the day's festivities, the Democrats got their chance to complain, calling Bush's Top Gun act a "tax-subsidised commercial" for his re-election campaign. They estimated it had cost $1m to orchestrate all of the details that made the picture look so perfect.

In the end, though, the spin doctors agreed that these were images that would stay in the minds of the American people. It is impossible, of course, for anyone to predict whether the Bush administration's bold gamble in Iraq has succeeded or whether, as Egyptian president Hosni Mubarak warned at the peak of the war, "there will be 100 Bin Ladens afterward". But in the wake of this conflict, we should ask ourselves whether we have made the mistake of believing our own propaganda, and whether we have been fighting the war on terror against the wrong enemies, in the wrong places, with the wrong weapons

Posted by Elaine Cassel at July 14, 2003 5:26 AM

 

4th Circuit Court of Appeals Bows to Bush War Powers

Filed under: Imported

The 12 judges--the full panel--of the 4th Circuit U.S. Court of Appeals, the most conservative federal court in the United States, has refused to do its constitutional duty and engage in meaningful judicial review, thus handing the Bush regime a big win in its battle to rewrite the Constitution.

In the case of Hamdi v. Rumsfeld, the full panel (known as en banc) denied a rehearing for Yaser Hamdi, 22, the U.S. citizen captured in Afghanistan in November 2001 allegedly fighting for the Taliban in a combat zone of Afghanistan. Hamdi has been held in a navy brig in Norfolk Virginia since shortly after his capture. His case arose when the federal public defender in Alexandria, Virginia, Frank Dunham, sued to gain access to Hamdi and provide legal services to him.

Judge Doumar of the U.S. District Court had ordered that Hamdi have access to Dunham.  In fact, Doumar was outraged by the government's assertion that Bush could even name someone an "enemy combatant" and deny them not only rights due American citizens but rights under International law.

The government appealed Judge Doumar's ruling to the 4th Circuit. In January 2003, the original panel of three judges affirmed the government's designation of Hamdi as an "enemy combatant," saying he was entitled only to a limited judicial inquiry into that decision. 

Limited means that the original panel of three judges looked at the scant affidavit of a mid-level Pentagon bureaucrat who claimed that Hamdi was an "enemy combatant" connected with Al Qaeda. The panel accepted the Pentagon's affidavit without question, saying that they would not interfere with the President in a time of "war."  If the President chooses to name someone as an enemy combatant and lock them up forever without attorney or any process against him, well that was just fine with them.

Dunham appealed to the full court to rehear the case. But the order, by a vote of 8-4, leaves undisturbed the January decision. Two judges issued opinions supporting the order and two dissented. But lest you get your hopes up, only one judge, Diana Motz, made an argument for due process under the Constitution. The other dissenting judge, J. Michael Luttig, who aspires to be on the U.S. Supreme Court and may even be to the right of Antonin Scalia (if that is possible), wanted the full court to hear the case so that it could say unequivocally that the affidavit