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.

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.

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.

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.

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. 

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.

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?