November 2003

Gulag Americana

Filed under: Imported

The November 22 Washington Post reported an alarming story about a Virginia resident and American citizen, 22 year-old Ahmed Abu Ali. In June, as he was preparing to return home to Falls Church from Saudi Arabia where he is a student. He was detained by Saudi Arabian authorities, at the request of the U.S., supposedly for the purposes of "interrogation" about his involvement in a plot, along with other Northern Virginia residents, to provide aid to rebels in Kashmir, who are fighting the Indian takeover of that region. Ali disputes his involvement in the activities of some of his acquaintances who have pled to vague charges of training to fight against a friend of the U.S. (India) in a prosecution in Alexandria, Virginia federal court.

We have no way of knowing what, if anything, Ali did that might be illegal under our broad and far-reaching anti-terrorist laws. That is beside the point at this time. What is the point, however, is that an American citizen can't come home, and the U.S. government is working with a foreign country to keep him locked up without a charge, without an attorney, without a trial, and with no hope of returning home. Because the U.S. set up his "detention," he has none of the protections normally afforded to a U.S. citizen who may be imprisoned in a foreign country, such as access to help from the State Department and consular personnel.

Ali's case brings to mind that of Maher Arar, the Canadian citizen whom the U.S. conspired to ship to Syria for interrogation, with the help of the Canadian government. Arar was returning to Canada through New York with federal agents captured him and put him on a plane to Syria. He was imprisoned in Syria for several months, where he says he was tortured. Neither the U.S. or Canada cared about returning him home—Syria let him go because, according to the Syrian ambassador to the U.S., it could find no cause t hold him.

Maybe I have been naive, but I had no idea that our government could do what was done to Ali, an American citizen. Or that it would do what it to do with a citizen of another country—literally put a hood over his head and take him out of the country.

In a communication with his family, said that he was being threatened with being declared an enemy combatant and shipped to Guantanamo Bay. If this were the case, it would be yet another outrageous act by President Bush, to imprison an American citizen and deny him access to U.S. courts. Attorney Ashraf Nubani, who has been on the front line of dozens of cases against alleged "terrorists," has tried in vain to find legal help for Ali in Saudi Arabia. He says no attorney there will touch the case. Not that he would gain access to Ali, anyway. No doubt the Saudis would be as unlikely to give him access to counsel as the U.S. would. As I write that sentence, I am stunned by the fact that this is no longer a surprise to me, an attorney of 24 years, who never thought she would be routinely writing about Americans who are captured and imprisoned by their government without being charged with any crime.

It has been a bad week for Americans caught up in the "war" on terror. Attorney Lynne Stewart was reindicted on new terrorist charges, after the judge threw out earlier charges. The 2^nd Circuit Court of Appeals seemed ready to cede power to the president to keep Jose Padilla in prison forever, without charge, trial, or attorney, because he has been designated an "enemy combatant." And now, an American abroad is imprisoned in Saudi Arabia.

There is no safe harbor for anyone whom the government wants to do in. Where is our Alexander Solzenitsyn, whom you may recall penned a classic of dissidence literature, The Gulag Archipelego. Where is our collective outrage?

Posted by Elaine Cassel at November 24, 2003 6:19 AM

Vengeance, Thy Name is Ashcroft

Filed under: Imported

On Wednesday, November 19, I was interviewed by two correspondents from German public radio and television. They are in the U.S. working on a report about America's attitudes toward the Patriot Act. A few days earlier, they had interviewed New York attorney Lynne Stewart, who in April 2002 was charged with two counts of aiding and abetting terrorism, along with two lesser charges.

Judge John Koeltl dismissed the terrorism charges against her earlier this fall, ruling that the Patriot Act provision under which she was charged was so vague that it could conceivably prohibit many services an attorney would engage in on behalf of a client. Two remaining charges, violating Special Administrative Measures (SAMs), conditions imposed on her contact with her client (the blind Sheik Abdel Rahman, convicted in the 1993 bombings of the World Trade Center), and of lying to the government by signing the SAMs and not intending to abide by them, were allowed to stand, and her trial date was set for January 2004.

I had discussed the Stewart case with the journalists. I said that even if Stewart were acquitted of the remaining charges, she had better watch out, for Attorney General Ashcroft would try to do her in in one way or the other, and that he would do what he could to make it so that she would never practice law again.

Later in the day, I heard that Ashcroft had indicted her on new terrorism charges, providing "personnel" support to terrorists, supposedly by enabling her client to be in touch with terrorists on the "outside."

I have not yet seen the indictment, so I can only comment on the news releases. At this point, it seems that the allegations are an absurd interpretation of the law: an attorney repeats something a client said to the press and that is defined as aiding and abetting terrorism? At this point, I can't see that this charge is any "better" than the one Judge Koeltl dismissed.

That's not the point, right now, as I see it. Rather, what is significant is that with the trial date less than two months away, Ashcroft came up with this to (1) get back at Stewart and her attorney, Michael Tigar, for their win on the prior terrorist charges and (2) try to insure that this time, the charges will stick. This time, the Judge won't be so bold as to strike the charges, Ashcroft must be hoping.

This type of reindictment on "new" charges based on the same facts was almost unheard of in the pres-Ashcroft days. Prosecutors knew when they were beat, and they folded their tents and went on to the next case. But no prosecutor can match John Ashcroft for persistence and vindictiveness. The man knows no discretion. He wants everyone to be charged to the max and sentenced to the max. No plea bargains, he has ordered, except those sanctioned by him. Death to all, if the law allows it, and no mercy to spare any life, for no life that Ashcroft charges is, in his twisted view of justice, worth sparing.

I know of two other examples where Ashcroft has struck back at people who reported problems with government evidence, one in a terrorist case, one not. Both professionals, both are facing sanctions from their professional bodies at this time. They absolutely did the right thing, in the name of principled justice. But what they did was antithetical to Ashcroft justice. The government did not get the verdicts it sought, perhaps, in part at least, due to the actions of these professionsals. But Ashcroft is getting back at them. Even if they are proven to have done no wrong (and experts I have spoken to believe that they are innocent of wrongdoing), the fact that they are under investigation must be reported to malpractice carriers and, in some states, to clients.

I could go on and on—and no doubt will as Act II of the Stewart drama unfolds. For now, I say only to my German friends that I wish I had been wrong. I wish we did not have a religious zealot, a wolf in wolf's clothing, who holds himself out as a "Christian," as the chief law enforcement officer in the United States. I wish we had someone who believed in justice, and in justice tempered with mercy. I wish we had a man who lived by the word of Jehovah, as written in the Old Testament, a man who believed in the God who said, "Vengeance is mine, I will repay."

But then, I recall that Ashcroft thinks he is God, or at least was put here by God to be Attorney General when 9/11 took place. God was preparing him for 9/11/, the Patriot Act, and all the prosecutions he has overseen since 9/11. That is why God had him lose his Senate race to a dead man. That's what Ashcroft says.

I shudder to think of all the lives, and even more important, the principles of justice, the foundations of the American judicial system, that have been ruined by his religious and political zealotry, which run rampant, seemingly unchecked by the courts or the Congress.

The Lynne Stewart case is the tip of the iceberg. Ashcroft and company have only just begun with their paybacks for losses in the courtroom. Whoever beats Ashcroft better leave the country. Vengeance is his name, vengeance is his game, and the American criminal justice system is the ultimate loser.

Posted by Elaine Cassel at November 20, 2003 7:38 AM

Human Rights Abuses in the Name of Fighting "Terror": A Review of David Cole's "Enemy Aliens"

Filed under: Imported

With his recently published book, Enemy Aliens, David Cole provides a distressing examination of the government's discrimination against aliens since the terrorist attacks of September 11, 2001.  Cole is a law professor at Georgetown University Law School and legal affairs correspondent for The Nation.

Cole's thesis in Enemy Aliens also serves as a warning: Americans should worry about the way their government treats immigrants, for it is often a precursor to the way it will treat its citizens.  Quoting Justice William O. Douglas, Cole reminds us that while it is easy to be aware of creeping oppression, and difficult to fight it, "[W]e all must be most aware of the change in the air...lest we become unwilling victims of the darkness."

Cole's Background As an Attorney: A Primer on Persecution

Cole finds the root of today's witch-hunt in the Cold War.  To explain the parallels, he discusses several cases in which he represented defendants alleged to be communists. In the 1980's, Cole represented Margaret Randall, who faced deportation  for advocating "world communism."  He explains how, then, immigrants who fit the "red scare" profile were targeted for discriminatory prosecution and deportation.  The government's modus operandi was: Target, snoop, charge, and deport..

Since 1987, Cole has been involved in the case of the "L.A. 8" -- seven Palestinians and the Kenyan wife of one of them.  The government claimed that they were associated with the Popular Front for the Liberation of Palestine (PFLP), an organization that advocated "the doctrines of world Communism."  Time and again, the government sought to deport the L.A. 8, but federal judges found no cause to justify deportation. (Under the McCarran Act, those involved with an alleged Communist organization were eligible for deportation.  But in 1990, Congress repealed the McCarran Act.)

Later, FBI Director William Webster admitted that his agency never found evidence of criminal or terrorist activity.  Yet, according to the Immigration and Naturalization Service district director who authorized the deportations and whom Cole interviewed, the FBI insisted on deportation proceedings.

Cole argues that the same tactics used against Randall and the L.A. 8 are now being repeated.  Those who seem "suspicious" -- then, Communists; now, Muslims and Arabs -- are targeted.  Then the government makes every effort -- and invokes every possible pretext to deport them. Ironically, since Cole's book was published, two of the L.A. 8 have once again been arrested.  They are charged with supporting "terrorism," based on their past association with the PFLP — and the government is again trying to deport them. 

Cole told me that the new charges are based upon portions of the immigration laws that were amended as part of the USA PATRIOT Act.  The charges are also bolstered by the fact that -- in a 1996 opinion penned by Justice Antonin Scalia, American-Arab Anti-Discrimination Comm. v. Reno -- the Supreme Court has sanctioned the selective enforcement of immigration laws in unspecified "extreme" situations.

Guantanamo: A Flashpoint in the War on Noncitizens

As even the cover of Enemy Aliens indicates, the situation at Guantanamo Bay is a major focus of Cole's book.  The cover bears one of the first photos of the prisoners held there.  It is a depressing sight: Clad in orange jumpsuits, brown-skinned men wearing hats, goggles, and masks are kneeling on the ground, with their hands tied together in front of them.  Leaning over them is an American military man in camouflage.

President Bush designated the over 650 Guantanamo prisoners "enemy combatants" -- as opposed to prisoners of war, who would be entitled to the protections of the Geneva Conventions.   The government has taken the position that the "enemy combatants" -- captured mainly in Afghanistan and Pakistan two years ago, where they are alleged to have been fighting for the Taliban or Al Qaeda -- are not entitled to attorneys, or even to hearings to determine if they are being wrongfully held. 

Some day, these men may be tried before military tribunals, but it is unclear when that will be, and what protections, if any, the tribunals will afford them. (Last week, the Supreme Court agreed to hear whether the prisoners can petition the federal courts in the U.S. in an effort to challenge the factual and legal basisi for their dentitions. Both lower federal courts unanimously rejected their suits, saying that because they were in Cuba, they were not in a U.S. territory, and thus the U.S. are closed to them.)

Cole points out that those who believed this treatment would never have been applied to Americans have been proved to be very wrong indeed.  To the contrary, American citizens Yaser Hamdi and Jose Padilla have now been declared "enemy combatants" as well. (Hamdi is alleged, but has not been proven, to have fought for the enemy abroad; Padilla is alleged, but has not been proven, to have conspired on U.S. soil to aid terrorists in procuring a "dirty bomb.") As a result, both men are being held, to this day, in military prisons.  Neither citizen has been charged with a crime.  Neither citizen has been afforded access to a lawyer.  And when these two U.S. citizens finally go on trial -- or face military tribunals -- the government may prosecute them based on "secret evidence — "proof" that they will never have the opportunity to challenge because they won't know what it is. So much for limiting civil rights infringements to aliens alone.

Witch Hunts and Deportations: The Fallout of September 11

Besides the treatment of "enemy combatants" -- both citizens and noncitizens -- Cole's other major concern is post-September 11 immigration proceedings. Immediately after September 11, the government rounded up of thousands of Arab and Muslim men.  It held them without charges and without access to attorneys or their families for far longer than the law allowed.  

On October 21, 2001 the USA Patriot Act was enacted.  It sanctioned law enforcement holding immigrants without charges for seven days.  But -- as a report by the Inspector General of the Justice Department has since revealed -- men were held months at a time.  And many faced physical abuse in the local jails where they were held. Finally, many were deported -- after closed hearings -- for minor infractions of immigration law that prior to September 11, would have been entirely overlooked.

According to the Inspector General's report, not one of these men was even charged with an act of terrorism.  Cole argues that this is hardly surprising:  "[W]hen the government uses the immigration process to get a 'terrorist,'" he notes, "you can be "fairly certain that it does not have the evidence that the individual has actually engaged in or supported any terrorist act." In this context, it seems absurd that Attorney General John Ashcroft and his Department of Justice have touted such deportations as evidence of fighting and winning the "war on terror." Actually, this is more like a war on immigrants.

An ugly conclusion cannot be avoided: The U.S. government is using the "war on terror" as a justification for selectively targeting and prosecuting foreign nationals from Arab and Muslim countries, virtually none of whom have ever been remotely involved with terrorism.

The Strategic Argument and the Human Rights Argument

Cole criticizes all of these tactics as both strategic and human rights failures. From a strategic point of view, Cole argues that if the U.S. indeed has reason to believe that terrorists are lurking in Arab and Muslim immigrant communities, then it ought to work with the communities to identify the threats.  Instead, however, it has discriminatorily targeted these ethnic groups for selective prosecution for immigration violations. The result, Cole says, is a loss of goodwill among these communities.  And that loss, he contends, will have a long-term negative effect both on the war on terrorism, and on our relationships with Arab and Muslim communities both here and abroad.

Cole deftly presents the legal issues that abound in the treatment of immigrants post-September 11.  Granted, he concedes, the Supreme Court has long allowed -- at least since Johnson v. Eisentrager -- the differential treatment of alien fighters captured on the battlefield abroad.  But that ruling does not extend to aliens who are not fighting against the U.S. And that may be the case with respect to a significant number of those still on Guantanamo. Moreover, it was certainly the case with those illegally detained after September 11. The Bill of Rights generally refers to "persons," not citizens -- a significant choice since other parts of the Constitution (such as eligibility for the Presidency) depend on citizenship.  It suggests that citizens and noncitizens, as equal persons, should be treated the same -- not differently.

In the end, though, Cole's most passionate argument is moral and constitutional, rather than legal.  It is that the way the U.S. government has treated immigrants is morally and constitutionally wrong.  Indeed, Cole argues that the only morally acceptable option is a simple one: to treat them as human beings entitled to the same fundamental rights as citizens.  But the U.S. government, especially since September 11, has fallen terribly short of this ideal.

This moral argument should be justification enough for changing the government's policies.  But Enemy Aliens also emphasizes another reason for doing so:  The historical truth that constitutional and human rights violations, though they begin with immigrants, will not end with them. 

Cole's book is a must-read for anyone interested in the profound legal and governmental changes the U.S. has seen since September 11 -- and, especially, for anyone concerned about the harms those changes have inflicted on civil liberties at  home and abroad.

Posted by Elaine Cassel at November 17, 2003 5:46 AM

The Justices and Guantanamo

Filed under: Imported

On November 10, the U.S. Supreme Court agreed to hear whether or not prisoners in Guantanamo Bay, Cuba may challenge the legality of their detentions as enemy combatants in U.S. courts. The Supreme Court has limited the appeal to that very specific and narrow issue. The U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia both summarily dismissed the petitions for writ of habeas corpus filed in behalf of 12 Kuwaitis, 2 Brits, and 2 Australians, 16 of the 650-plus prisoners captured in Pakistan and Afghanistan and interned in Cuba for going on two years.

The government's position is disingenuous, that the prisoners are not on sovereign U.S. territory, therefore the federal courts are closed to them. But the lease between the Cuban and U.S. governments specifically holds otherwise. In effect since the end of the Spanish-American war in 1903, the pertinent provision for the lease of the 45 square mile area that makes up the U.S. Naval Base says that "the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire . . . for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain." The lease gives the U.S. civil and criminal jurisdiction over all persons located therein. On its official web site, the U.S. Navy describes Guantanamo as "a Naval reservation, which, for all practical purposes, is American territory. Under the [lease] agreements, the United States has for approximately [one hundred] years exercised the essential elements of sovereignty over this territory, without actually owning it." 

While it should be noted that earlier legal precedent ruled that a base in Bermuda was not "sovereign" U.S. territory, that case did not deal with a prison camp presided over by military guards. To suggest that the U.S. can create a law-free zone where it may imprison whomever it wants whenever it wants for as long as it wants--and never charge or try them--is an astoundingly absurd proposition from any government, let alone one that purports to live by the rule of law.

The prisoners' petitions for writs of habeas corpus asked for modest relief—that they have the opportunity to challenge the basis for their detention as enemy combatants. On November 13, 2001, the President issued a Military Order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in The War Against Terrorism" (the "Military Order"). 66 Fed. Reg. 57, 833-36. (Nov. 16, 2001). Section 1(e) of the Military Order states that, "[t]o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained. . . . " Section 2 provides that any non-citizen of the United States may be detained if the President determines "in writing" that "there is reason to believe" he or she "is or was a member of the organization known as al Qaida" or has engaged in or supported terrorism or other acts aimed at injuring the United States.

The prisoners' attorneys insist that they have the right, under international law, to see the evidence against them, and to have the rights guaranteed prisoners of war under the Geneva Conventions. These include the right to be charged with crimes or released and, if charged, to have legal counsel and fair tribunals. Intelligence experts have conceded that no more than a handful of the men could have any real intelligence value or could have been involved with al Qaeda. Most are likely there because others turned them in order to get huge money bounties. The U.S. was handing out fistfuls of dollars to people in the street who would name names, promising "snitches" enough money to take care of their families for a lifetime.

The lower federal courts also went far afield from their stated case precedent, Johnson v. Eisentrager, a 1950 Supreme Court case that arose out of World War II. There, Germans who had been tried and convicted by military tribunals wanted to challenge their convictions in federal court. The Supreme Court ruled that they could not. But these men had at least the semblance of due process—they were charged, given attorneys, and tried. For the District of Columbia trial and appellate court to jump from those facts to foreclose the Guantanamo prisoners from judicial review was a huge leap unsupported by the facts or the law.

The Bush Administration pleaded with the Supreme Court not to grant the appeal. It warned the court that waging war was the President's business, not the Court's. This was also an argument so absurd and frightening that alarms ought to be clanging in the hearts and minds of every American. Since when does the President tell the Supreme Court what cases to take? Since when is the Supreme Court not the supreme law of the law—the last word in all things legal and judicial? Before he was President, Bush thought the Court could anoint him President. The Court agreed. Now, he thinks that same Court cannot consider, merely consider (the Court may well agree with the lower courts, but I doubt it) whether courts might have jurisdiction over prisoners in Guantanamo so that his detention orders might be subject to some modicum of judicial oversight. That arrogance alone—even if the policy at issue were not so terrifying—justifies taking down this Administration a peg or two.

I would bet that the Supreme Court will decide that Guantanamo is enough of a U.S. territory that the prisoners detained there are allowed to have access to the courts. In a year from now, if the case finds its way back to the U.S. District Court in the District of Columbia, we will see plenty of stonewalling by the administration, much like it has done in the Moussaoui case. You don't think they are going to play by the book, do you? Of course, the "book" is a lot better for them in D.C. then in front of Judge Brinkema in Virginia. The D.C. trial and appellate courts are highly conservative and beholden to the Bush administration. And if Bush gets his way, the mad woman Janice Brown, the judicial nominee who does not even know the meaning of the term "supremacy clause" (she stumbled badly with Sen. Arlen Specter asked her about it in the Senate judiciary committee hearing that just recommended her for a full vote) and who thinks the 14^th Amendment has nothing to do with the states, will be sitting on the D.C. appeals court.

It is too early to get excited and think that justice will be done for the prisoners in the black hole of Guantanamo. But it is some consolation that the Supreme Court, for once, has said no to Bush, no to Rumsfeld, and no to Solicitor General Theodore Olson. "We will have a look at this case, " they said. For now, we have this small gesture, the tiny glimmer of hope, for which to be grateful.

Posted by Elaine Cassel at November 12, 2003 6:13 AM

USA Patriot Act Spawns Like Laws, Like Abuses, Around the World

Filed under: Imported

Great Britain, Canada, Australia, South Africa, to name a few of our international "friends," have enacted versions of our post-September 11 laws that curtail civil liberties in the name of  fighting "terror."  The USA Patriot Act, the Homeland Security Act, and dozens of Executive Orders entered by President Bush, Attorney General Ashcroft, Secretary of Defense Donald Rumsfeld, and even Secretary of State Colin Powell have stripped citizens and resident aliens alike of legal protections and constitutional guarantees.

The "free" world is watching and their governments, recognizing an opportunity to seize power in the name of survival, have followed suit. Canada was the first country to pass a virtual mirror of our Patriot Act, within weeks of ours. Australia and Great Britain followed shortly, and South Africa is struggling with one now. Unlike the U.S., Australia, Great Britain, and Canada, countries that did not bother to debate the merits of curtailing liberty, there is a strong movement of dissent in South Africa.  Blacks, and concerned whites there, see the specter of apartheid returning under the guise of "national" security.

Just as American courts are handing the government victories right and left (on November 7, the Second Circuit Court of Appeals ruled that holding someone as a material witness forever is just fine--no charge, no attorney, just lock you up until they want to talk to you--if ever--and if you wont' talk you will be found in contempt of court and serve years in prison), the courts in Britain are upholding that country's usurpation of power.

On October 29, 2003, 10 men accused of being involved in international terrorism lost an appeal against their detention without charge or trial since 2001. The men were arrested solely on the say-so of Home Secretary David Blunkett, who alleges that they were connected to groups linked to Al-Qaeda. Most of them have been held for the past two years in high-security prisons or mental hospitals.

The 10 were interned under the Anti-terrorism, Crime and Security Act 2001, which added to the powers contained in the Terrorism Act 2000 and came into force two months after the September 11 bombings. Sixteen foreign nationals have been held under its provisions. Under the ATCSA, non-UK nationals certified as "suspected international terrorists and national security risks" by the home secretary can be detained without charge or trial for an unlimited period. Detention can be based on secret evidence—which the detainee and their counsel cannot see, hear, or challenge.

The appeal was also heard largely in secret by the Special Immigration Appeals Commission (SIAC), a panel of three judges and no jury. As a result of these Kafkaesque procedures, the names of only two of the detainees are known. One, Jamal Ajouaou, is a Moroccan citizen who has already agreed to return to his home country. The other is Palestinian asylum seeker Mahmoud Abu Rideh, a 32-year-old father of five who has lived in Britain since 1995 and is now held in Broadmoor high-security mental hospital. The remaining eight are known only by a letter of the alphabet.

None have been accused of actual crimes, but only of membership of one of the 39 organizations proscribed under the Terrorism Act. Representatives of the security services presented testimony, and the men were not allowed to know the nature of this evidence against them.

In making its verdict, SIAC operated on the assumption that the government only had to prove it had "reasonable grounds to suspect" the men were linked with terrorism. Admitting that the evidence presented would not stand up in a court of law, the judges' ruling stated that "the standard of proof is below a balance of probabilities."

The men expect to remain in prison for the rest of their lives, in a status similar to the "enemy combatant" category used in the US to intern people it does not want to try.

In another British case, the High Court upheld the practice of police stopping and searching peaceful demonstrators at an arms convention under its Terrorism Act of 2000. The court found that "The exercise and use of the power was proportionate to the gravity of the [terrorism] risk." Police routinely employ these powers in every day situations now, according to a report in the Guardian. 

The U.S. plans to make the Mideast "free," according to his latest announcement of a grand imperialistic agenda. Suppression of the free world, "freedom" to the supposed "oppressed" Arabs--what do these governments really have in mind for us all? 

Posted by Elaine Cassel at November 10, 2003 5:55 AM

FBI To Web Site Owner: We Are Watching You

Filed under: Imported

Cryptome is a web site dedicated to investigating and publishing accounts of government improprieties, particularly as they relate to secrecy and First Amendment violations. On November 4, FBI agents visited the website's New York City office and met with site owner John Young.

Both agents, who are identified on the site and who left their official cards, said that they had information that Cryptome was a source of information that could be used to "harm the United States." Prior investigations by the FBI, the agent admitted, had not found any evidence of criminal wrongdoing, but the FBI was fearful that information on the site would end up in the "wrong" hands.  Cryptome was asked to report to the FBI any "gut feeling" they had that its information would be a "threat" to the U.S.

One agent said that visits like these are increasingly common as the government seeks out information on threats to the U.S. The agents said they would "write up" a report on their visit. The agents asked that their names not be published, but Cryptome refused to honor that request. One reason for their request of anonymity is so that information about them cannot be pulled from one of many databases available online. (Funny how government agents don't want to be the source of data mining, but they certainly want to use it against us.)

Cryptome has a host of documents on its website, most government documents obtained from various sources. The site says it will not remove any document without a valid court order and no order has ever been served on them.

Young is no doubt aware that the FBI has probably already given his name to NYPD and that they will keep their eye out on him, pursuant to new regulations in which the feds ask local cops to help them rein in "suspicious" persons. Lucky for us that Young is watching the FBI.

Posted by Elaine Cassel at November 7, 2003 6:04 AM

A Very Bad Civil Liberties Day

Filed under: Imported

Tuesday night, I happened upon a special two-hour version of a Canadian news program, "As It Happens." I heard the voice of Canadian citizen, Maher Arar, 33, providing outrageous details of his capture by the US last fall and his shipment to Syria for the purposes of "interrogation." Arar was returning from visiting family in Tunisia. He was on his way back to Canada, by way of New York City, when he was detained at New York's John F. Kennedy International Airport. Reason for detention: "suspected terrorist." He was flown under U.S. guard to Jordan, where he was handed over to Syrian authorities. He was imprisoned in Syria for 10 months, in what seems to be the equivalent of the "hole" in U.S. prisons (solitary confinement, darkness). He says he was physically tortured, but the Syrian ambassador to the U.S., speaking on the program, denied that much of the story. He agreed that they did the questioning at the request of the U.S. government, an oddity in itself, since Syria has been deemed a "terrorist" state and Bush has made it clear that after it settles its score in Iraq, it is turning its sights on ferreting out "terrorism" in the Syrian government.

The ambassador conceded that they took Arar in order to get "information" about Arar's alleged "terrorist" activities. Ten months of "interrogation" turned up no hint that he was a "terrorist" and he was returned to Canada, against the wishes of the Bush administration.

Further details of Arar's "detention" were reported in the November 5 Washington Post. Apparently, Arar's treatment came at the behest of the CIA. Anonymous officials of the CIA said that Arar fit the bill of a covert "extraordinary rendition"—the practice of turning over "low-level, suspected terrorists to foreign intelligence services, some of which are known to torture prisoners." The practice is so secret that no other details are or ever will be available to the public or Congress (as if Congress would do anything useful, anyway). Additional information in the Washington Post article indicated that "renditions" used to take place on U.S. soil, but since the CIA is loathe to actually physically torture "detainees,"since the early 1990's the CIA and the FBI arrange for the person to be sent to countries who will do the torturing for them.

The same edition of the Post contains a small story, hidden inside (Arar's story appeared on the front page, below the fold), about a new directive from Attorney General John Ashcroft putting in place the procedures by which the FBI will share its surveillance results with state and local law enforcement. A provision of the USA Patriot Act broke down the "wall" between law enforcement and surveillance activities, so that we now have, in effect, our own version of KGB, or secret police. Of course, the regulations are not available for you and me to see, but this much is certain: If the FBI is watching you or any organization (or website) that it suspects is a threat to "national security or public safety," it can tell your local cops what it knows about you and your organization and put them on your trail. You could then be targeted for preemptive detention under the material witness law (where you can be held indefinitely in prison to answer prosecutors' questions if and when they feel like talking to you), targeted for violating some minor criminal law or administrative infraction (better clean up those overdue parking tickets), or charged with aiding and abetting terrorism for knowing someone on the government's many suspicious persons lists.

What befell Mahar Amar could be your, my fate. What is to stop the FBI from throwing a blanket over your head, putting you on a plane to Jordan with U.S. Marshals as your escort, and dumping you in Syria to be tortured? Not a damn thing as I can see it.

Keep in mind, that your family and friends won't know about any of this, you won't have any access to an attorney and, if and when you are released and in the slim chance return home, you won't have any redress against the federal government. For the government will deny that it ever happened.

Shortly after September 11, Mohamed K. Bellahouel, a 34-year-old Algerian immigrant, a waiter living in Miami, was one of the more than 1,200 Arab and Muslim men rounded up for "questioning" by the FBI. He was deemed "suspicious" because he was said to have waited on two of September 11 hijackers, and might have even been seen going to a movie with one of them. He was subsequently arrested in Florida on a material witness warrant, imprisoned for more than five months, and charged with a minor visa violation. He was brought to Alexandria, Virginia to give testimony before the grand jury investigating Zacarias Moussaoui.

He filed a writ of habeas corpus, which became moot when immigration authorities finally released him on bail ( immigration authorities are still trying to deport him for violating terms of a student visa), but the federal courts sealed all records of the case. The case never even appeared on the courts' docket lists. Bellahouel, news, and civil liberties organizations appealed the orders of secrecy surrounding the case. Both a Florida federal district judge and the 11^th Circuit Court of Appeals ruled that the secrecy surrounding the case violated the First Amendment. The government appealed the case to the Supreme Court, yet the government has refused to file any briefs. On November 4, the Court ordered Solicitor General Theodore Olson to file briefs explaining the government's determination to keep the case secret. That would suggest that the Supreme Court wants to know what's going on, except that it gave Olson no deadline to get back to them and they won't consider whether to take the case or not until Olson does so. I guess the Court, for whatever reasons, wants to appear to care about liberty when in fact it does not. (Earlier this term, it refused to hear an appeal of a lower court's order that deportation hearings could be conducted in secret, as hundreds were done post September 11).

So, there you have it. Secrecy, secrecy, and secrecy. Detentions, arrests, and tortures. A friend this week asked if I thought the new Iraqi constitution would be better than ours—or what we have left of it. I replied that it would likely be the same sham that ours has become. It is obvious that we live in a police state, and our freedom to speak, travel, to be free from arrest except on probable cause of having committed a crime, to have the right to counsel, to have judicial review of our treatment by our government—these guarantees are the exception, no longer the rule. It's too late to whine about it now, and with few courts to run to, not a damn thing we can do about it except be prepared to pay with our lives if John Ashcroft, George Bush, or George Tenet sets their sights on us.

Posted by Elaine Cassel at November 5, 2003 5:08 PM

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