I think of the prisoners on death row—innocent and guilty—whose blood all Americans will have on their hands because of our death-hungry criminal justice system. Avenge killings with killings, in spite of legions of studies that show it has no correctional value. But in a system devoted to power and revenge, rather than justice and societal good, death most assuredly adds value.

I think of the constant mantra that Bush and our "leaders" spout about this being a great Christian nation. How Christianity is woven into the very fabric of what it means to be American. Yet, I defy you to name one example from the past year when Bush, Rumsfeld, Rice, Rove, Ashcroft, DeLay, Frist, or anyone in a seat of power in this allegedly great nation, has done one act demanded by Jesus in his Gospels.  "Love your enemies, do good to them that wish you evil."  "Let him who is without sin among you cast the first stone." I could recite maxims from the teachings of Jesus for hours and find no hint of the living of it by anyone in the Bush administration.

We are, I believe, among countries, the least Christian, the least decent, the least compassionate, the least kind government on the globe. Nowhere else can I think of does greed, power, corruption, vengeance, bigotry, and hatred more rule the day under the guise of Christianity and democracy than in the United States. Other nations with "Christian" traditions, like Germany, France, Italy, and England, at least have basic health care for their people and abhor the death penalty.

The words of William Wordsworth cry out:

"The world is too much with us; late and soon,
Getting and spending, we lay waste our powers;
Little we see in Nature that is ours;
We have given our hearts away, a sordid boon!
This Sea that bares her bosom to the moon,
The winds that will be howling at all hours,
And are up-gathered now like sleeping flowers,
For this, for everything, we are out of tune;
It moves us not.--Great God! I'd rather be
A Pagan suckled in a creed outworn;
So might I, standing on this pleasant lea,
Have glimpses that would make me less forlorn;
Have sight of Proteus  rising from the sea;
Or hear old Triton blow his wreathed horn."

Better that we profess our evil, as do governments like those of Korea and China, and govern and rule honestly as despots, than that we hide under the guise of Christianity and democracy. 

So, Bah humbug on the Bush administration and all the evil it has perpetuated on the world this year. Someday may the spirit of Christmas find them.

Posted by Elaine Cassel at December 25, 2003 12:39 AM

How a Weak Insanity Defense Saved Lee Boyd Malvo's Life

Filed under: Imported

On December 18, a Virginia jury convicted 18-year-old "Beltway Sniper" Lee Boyd Malvo of terrorism and capital murder. The convictions rendered Malvo eligible for Virginia's death penalty. 

By convicting Malvo, the jury rejected his insanity defense -- causing some to wonder why his attorneys had raised it in the first place.  After all, the evidence of insanity was thin, and the defense was, at best, a long shot.

Malvo's attorneys were still smart to raise the defense on his behalf.  Even a longshot is better than no chance at all.  And by raising the insanity defense during trial, Malvo's attorneys made it more likely that at the penalty phase jurors would spare him from execution--and they did. For on December 23, they agreed that he should spend the rest of his life in prison rahter than face lethal injection. 

Why Malvo's Insanity Defense Was Tenuous At Best

Under Virginia law, the jurors evaluating Malvo's insanity defense had to decide if he was suffering from a "mental disease or defect" that would render him not legally responsible for the killing. Defense psychologists testified he suffered from a dissociative disorder.  But that a tenuous diagnosis on which to hang an insanity defense.

The "best" insanity defenses are found in cases where the defendants are (or were, at the time of the crime) suffering from a psychotic disorder, such as schizophrenia. "Psychosis" means a break with reality.  People with schizophrenia suffer from delusional thinking, such as grandiose or paranoid thoughts. 

Consider, for example, Russell Weston, who more than five years ago stormed the U.S. Capitol building and killed two Capitol Hill police officers.  Weston thought he was on a mission to seize a "ruby red satellite box" stored in the "great safe in the Capitol."  Retrieving the box, he believed, would save the world from cannibalism.  Before he left for D.C., Weston heard voices speaking to him from his parents' cable television box -- voices so disturbing that he ripped the box out of the wall.

Many jurors come to conclude that crimes by psychotic culprits like Weston should result in hospitalization, not jail.  But it is hard to convince them to reach the same conclusion when the defendant is instead suffering from a dissociative disorder, as defense psychologists say Malvo was.

A person with dissociative disorder can seem entirely sane.  Consider Malvo. His thinking is not delusional, and he does not claim that he was hearing voices.  The evidence shows that he methodically planned the killings with his father-figure John Allen Muhammad. It is a safe bet that the jurors did not "see" a mentally ill defendant who should be relieved of criminal responsibility.

Indeed, the symptoms of dissociative disorder can make a defendant seem especially culpable -- cold-blooded and calculating.  That's because a majority symptom is a disconnect between action and thought.  It is a form of "detachment," or, in Malvo's words, "zoning out." 

Jurors were likely horrified when Malvo described his heinous crimes calmly and without emotion.  From a psychologist's perspective, however, that is only testament to his insanity.  A sane person would feel emotion; Malvo did not.  

Jurors, however, have great difficulty accepting that extreme dissociation can be a form of insanity.  In part, this may be because unlike psychosis, dissociation -- "zoning out" -- is something jurors themselves have experienced.  A mental trick as pedestrian as trying to pretend one is elsewhere, while at the dentist, counts as an extremely mild form of dissociation. 

More than this, one need not be insane to exhibit dissociation, and indeed, sometimes it can aid survival.  People facing extreme dangers -- such as death by freezing when stranded on a mountain-climbing expedition, or being stranded in the ocean after a boat capsizes -- report detaching their minds from their physical suffering in order to concentrate on staying alive.  Similarly, people who suffer from posttraumatic stress disorder often experience dissociation in a way that protects them from fully realizing the horror of the trauma that haunts them. 

If Malvo's dissociative disorder had been far more extreme, jurors might have recognized it as insanity.  For instance, survivors of severe childhood abuse may develop multiple personalities that protect them from making the horrible experiences fully a part of their lives.  This disorder, which used to be called multiple personality disorder, is now known as dissociative identity disorder (DID).  But Malvo's disorder did not manifest itself that way.

For all these reasons, Malvo's invocation of Virginia's insanity defense, though grounded in plausible expert testimony, was very unlikely to succeed -- and it did not.  Raising it, however, may have greatly helped Malvo's attorneys make the case that he should not sentenced to be executed -- as his father-figure John Allen Muhammad has been. 

Why Raising Even An Unsuccessful Insanity Defense Can Help Avoid the Death Penalty

Granted, the defense may have lost credibility with some jurors when the prosecution ridiculed Malvo's insanity defense, and conducted blistering cross-examination of defense experts who supported it.  But on the whole, the defense benefited, in the penalty phase, from raising the insanity defense at the guilt phase.  To see why, consider what the trial would have looked like if such a defense had not been raised -- and what it actually did look like.

Had the insanity defense not been raised, the trial would have been over with in short order, for it would only have involved the prosecution's establishing the facts of the crimes.  Jurors would have dwelt on the heinousness of the crimes, and the terrible harm they caused the victims' friends and families -- and these factors would have been foremost in their mind up until they reached their verdict.  By then, the jurors might well have hardened themselves against Malvo irrevocably.

Once the insanity defense was raised, however, the jurors were forced to confront the reality of Malvo's life.  Defense attorneys were able to stress his youth -- even now, he is only 18 years old -- and impressionability.  They were able to show that a conniving father figure who -- whether or not he actually "brainwashed" him -- plainly had an overwhelmingly strong, incredibly pernicious influence took in Malvo.  And they were able to show, with the help of the testimony of psychiatric experts-- as well as former friends, neighbors, and teachers testified -- that it was under, and largely because of Muhammad's influence, that Malvo became increasingly dissociated from reality as he entered the world Muhammad had constructed for them, a world in which virtually every move made, every breath taken, and every morsel eaten was controlled by Muhammad. 

After hearing the defense's evidence, even jurors who did not conclude that Malvo was insane under Virginia law might have believed that he was mentally ill, just not sick enough to be absolved of responsibility.  An insanity verdict is, after all, not a mental health diagnosis, but a legal construct reserved for defendants unable, because of a mental disease or defect, to know right from wrong and to conform their conduct in accordance with law. Because the insanity defense was raised, Malvo's attorneys were given a chance to have experts explain to the jury why what looked like callousness, could instead be dissociation, and what looked like evil, could be mental illness, even if not an illness sufficient to qualify as legal "insanity."

This evidence might have convinced even a juror who did not want to be a holdout at the guilt phase, to become a holdout at the penalty phase -- a holdout against death.  And since all it takes is one, if the defense reached a single juror, that one might have saved Malvo's life.

This is a tragic case -- tragic for the victims, and for Malvo, as well.  In raising the insanity defense, Malvo's attorneys had nothing at all to lose—and everything to gain.  The defense gambled and won and spared the life  of an 18-year-old boy whom adults have otherwise grievously failed.

Posted by Elaine Cassel at December 24, 2003 7:25 AM

Stealth Legislation, Secret Police

Filed under: Imported

In January 2003, the Center for Public Intergrity posted on its website a revolting draft piece of legislation that became known as Patriot II. Though the Justice Department did its best to disown it, saying it was just a "trial balloon" put out there for public debate and no more than a rough draft, experts weren't buying that line. It appeared that Vice President Dick Cheney had signed off on it, and try as they might legal scholars couldn't see the draft in this draft. As Georgetown University Law School Professor and Civil Liberties scholar David Cole noted, there wasn't a dangling participle or misspelling in the entire bill. Too strong for even members of the Congress, it died a quiet death.

But watchers of this Administration knew that the provisions would somehow become law. I predicted that portions would be stuck here and there in unrelated laws and spending bills, and given this Congress's loathing of reading legislation before they sign it, it would indeed become law without anyone but the stealth drafters knowing it.

I hate to be right about such things, but a reader brought to my attention the following bad news, as reported in Wired. An intelligence spending bill grants new huge powers to the FBI and the CIA to order searches and seizures without judical warrants or oversight and to keep the fruits of the intelligence a secret from the courts and Congress. It looks to me like the Secret Police, the Gestapo, whatever you want to call it, has indeed come to pass.

Congress Expands FBI Spying Power

By Ryan Singel

Congress approved a bill on Friday that expands the reach of the Patriot Act, reduces oversight of the FBI and intelligence agencies and, according  to critics, shifts the balance of power away from the legislature and the courts.

A provision of an intelligence spending bill will expand the power of the  FBI to subpoena business documents and transactions from a broader range of  businesses -- everything from libraries to travel agencies to eBay -- without first seeking approval from a judge.

Under the Patriot Act, the FBI can acquire bank records and Internet or  phone logs simply by issuing itself a so-called national security letter saying the records are relevant to an investigation into terrorism. The FBI  doesn't need to show probable cause or consult a judge. What's more, the target institution is issued a gag order and kept from revealing the  subpoena's existence to anyone, including the subject of the investigation.

The new provision in the spending bill redefines the meaning of"financial  institution" and "financial transaction." The wider definition explicitly  includes insurance companies, real estate agents, the U.S. Postal Service, travel agencies, casinos, pawn shops, ISPs, car dealers and any other  business whose "cash transactions have a high degree of usefulness in  criminal, tax or regulatory matters."

Justice Department officials tried earlier this year to write a bill to expand the Patriot Act. A draft -- dubbed Patriot II -- was leaked and  caused such an uproar that Justice officials backed down. The new provision  inserts one of the most controversial aspects of Patriot II into the  spending bill.

Intelligence spending bills are considered sensitive, so they areusually  drafted in secret and approved without debate or public comment.

Chris Schroeder, a Duke law professor and former assistant attorney general  in the office of legal counsel at the Justice Department, said the re- insertion shows that "people who want to expand the powers of the FBI didn't  want to stop after Patriot II was leaked."

"They are going to insert these provisions on a stealth basis,"Schroeder  said. "It's insidious."

James X. Dempsey, executive director of the Center for Democracy and  Technology, echoed Shroeder's analysis.  "On its face, it's a cryptic and seemingly innocuous amendment," Dempsey said. "It wasn't until after it passed both houses that we saw it. The FBI and CIA like to try to graft things like this into intelligence bills."

House Intelligence Committee chairman Porter Goss (R-Florida) defended the  new definition, saying it was necessary to keep pace with terrorists and the  changing economy.

"This provision brings the definition of 'financial institution' up todate  with the reality of the financial industry," Goss said on the House  floor. "This provision will allow those tracking terrorists and spies  to 'follow the money' more effectively and thereby protect the people of the  United States more effectively."

The expansion surprised many in Congress, including some members of the  intelligence committees who recently began reconsidering the scope of the  Patriot Act.

Timothy Edgar, legislative counsel for the American Civil LibertiesUnion,  decried the expansion of an executive power that is not subject to judicial  oversight.

"The more that checks and balances against government abuse are eroded, the  greater that abuse," Edgar said. "We're going to regret these initiatives  down the road."

National security letters, or NSLs, are among the most-usedantiterrorism  powers, and are among the least-known or scrutinized. The Bush  administration has pushed to expand their use. In the spring, it tried  unsuccessfully to allow the CIA and the military the right to issue such subpoenas.

The FBI says it can't say how many times it has issued itself NSLsbecause  of national security. A few weeks ago, civil liberties groups forced the Justice Department to release some of those records, but Justice handed over  a six-page, blacked-out list.

Other portions of the funding bill eliminate annual reports to Congress on  several controversial matters, such as foreign companies' involvement in the  spread of weapons of mass destruction, the effectiveness of the intelligence  community and antidrug efforts.

The bill also nixes reports on how many times national security letters are  used to access individuals' credit reports.

After a joint committee reconciled the two versions of the bill, bothhouses  had to vote to approve the compromise version, which is usually considered a  formality. While Friday's Senate vote was a voice vote, on Thursday, 15

Republicans in the House broke ranks and voted against the entire intelligence-funding bill in protest of the national security provision.

The  bill passed by a vote of 264 to 163.

Though debate was limited, a handful of representatives, including Butch Otter (R-Idaho), spoke out against the bill.  "In our fight for our nation to make the world a safe place, we must not turn our backs on our own freedoms," Otter said. "Expanding the use of administrative subpoenas and threatening our system of checks and balances is a step in the wrong direction."

The ACLU's Edgar said he was surprised by the extent of the Republican  defections. It shows how views in both parties have changed about granting  unchecked antiterrorism powers.

Edgar also argued the extension may anger strong interest groups -- such as  casinos, Realtors and travel agents -- who previously weren't part of the  civil liberties debate.

"They had no idea this was coming," Edgar said. "This is going to help to  continue to expand the list of people and organizations that are asking  questions about civil liberties and Patriot Act powers."

Members of Congress who were upset by the provisions and the process that  led to their passage may hold hearings on the matter early next year.  Neither the chairman of the Senate Select Committee on Intelligence, Sen.  Pat Roberts (R-Kansas) nor the ranking minority member, Sen. Jay Rockefeller  (D-West Virginia), responded to requests for comment.

The FBI directed press calls to the Department of Justice, which didn't  respond by press time.

The Justice Department has vigorously defended its use of the Patriot Act  for both terrorist and nonterrorist investigations and set up a website to  respond to its critics.

Here is what President Bush has to say about the legislation. Note that the repeated mantra of exclusive Executive branch authority, without congressional or judicial oversight

Statement on H.R. 2417

Statement by the President

Today, I have signed into law H.R. 2417, the "Intelligence Authorization Act for Fiscal Year 2004." The Act authorizes funding for United States intelligence activities, including activities in the war against terrorists of global reach.

Section 506A(c) of the National Security Act of 1947, as enacted by section 312(b) of the Act, purports to require the President to request that the Congress enact laws appropriating funding for a major intelligence system procurement in an amount set as a cost estimate by an entity subordinate to the President or to explain why the Presidentinstead requests amounts below those levels. Moreover, beginning with the submittal to the Congress of the President's budget for FY 2006, section 312(d)(2) of H.R. 2417 purports to condition the obligation or expenditure of funds for development or procurement of a major intelligence system on the President's compliance with the requirements of section 506A.

The executive branch shall construe these provisions in a manner consistent with the Constitution's commitment to the President of exclusive authority to submit for the consideration of the Congress such measures as the President judges necessary and expedient and tosupervise the unitary executive branch, and to withhold information the disclosure of which could impair the deliberative processes of the Executive or the performance of the Executive's constitutional duties.

Section 341(b) purports to require the Attorney General and the Director of Central Intelligence, acting through particular offices subordinate to them respectively, to establish certain policies and procedures relating to espionage prosecutions. The executive branch shall implement this provision in a manner consistent with the authority committed exclusively to the President by the Constitution to faithfully execute the laws and to supervise the unitary executive branch.

Similarly, sections 1102(a) and 1102(c) of the National Security Act, as enacted by section 341(a) of the Act, purport to mandate that the Director of Central Intelligence use or act through the Office of National Counterintelligence Executive to establish and implement an inspection process for all agencies and departments of the U.S. Government that handle classified information. The executive branch shall implement this provision in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.

The executive branch shall construe and implement section 376 of the Act, relating to making available classified information to courts, in a manner consistent with the President's constitutional authority to classify and control access to information bearing on the national security and consistent with the statutory authority of the Attorney General for the conduct of litigation for the United States.

Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall implement section 319 of the Act in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Fifth Amendment to the Constitution.

Section 502 purports to place restrictions on use of the U.S. ArmedForces and other personnel in certain operations. The executive branch shall construe the restrictions -in section 502 as advisory in nature, so that the provisions are consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

Section 106 enacts by reference certain requirements set forth in the joint explanatory statement of the House-Senate committee of conference or in a classified annex. The executive branch continues to discourage this practice of enacting secret laws and encourages instead appropriate non-binding uses of classified schedules of authorizations, classified annexes to committee reports, and joint statements of managers that accompany the final legislation.

GEORGE W. BUSH

THE WHITE HOUSE,

December 13, 2003.

Posted by Elaine Cassel at December 21, 2003 9:14 PM

Two Federal Courts Blast Bush and Rumsfeld

Filed under: Imported

Thursday, December 18, brought some good news for those among us who thought the judicial branch of government was asleep. An independent judiciary is alive and well in two federal circuits--the Second Circuit (New York) and the Ninth Circuit (California). Both appeals courts rejected the Bush administration's claims that President Bush has unlimited power to trample the civil rights of Americans and prisoners in its control under the guise of fighting a global war on "terror."

The Second Circuit ruled in the case of Jose Padilla that President Bush wrongly ordered his detention as an enemy combatant.  The opinion found that there was no legal basis for the presidential act; in fact, it found law to the contrary, the Non-Detention Act (18 U.S. Code, Sec. 4001 (1), that prohibits the military from detaining an American citizen without an Act of Congress. The law, enacted in 1971, repealed the 1950 Emergency Detentions Act, that empowered the Attorney General to detain, during an invasion, insurgency, or declared war, individuals whom the Attorney General thinks might commit sabotage (sounds a little like the Patriot Act, doesn't it?). As the court notes in its opinion, every Senator who voted for the Non-Detention Act did so because of the disgraceful internment of Japanese-American citizens during World War II.

The Court further found that Bush overstepped the Joint Resolution to wage war against terrorism, passed overwhelmingly by the Congress shortly after September 11. The government's attorneys argued that the resolution gave the President the power to detain persons in order to prevent future attacks of terrorism. The Court said that the plain language of the resolution did no such thing. It authorized action only against persons, states, or organizations that planned or participated in the September 11 attacks "in order to prevent future attacks." The judges ruled that this Joint Resolution in no way abrogates the Non-Detention Act.

Having found that there was no legal basis for Bush's order, the court gave Secretary of Defense Donald Rumsfeld, who has control over Padilla, 30 days to release him. In the interim, the court noted, federal prosecutors could again detain him as a material witness (the way he originally came to the attention of the court, as federal prosecutors in New York wanted to question him about a plot to detonate a "dirty" bomb), or charge him with a criminal offense and have him indicted in federal court.

The government may ask a full panel ("en banc") of the Second Circuit judges to rehear the case, a motion the court would likely grant given the gravity and unusual nature of the case. Depending on the outcome of such a review, either Padilla or the government could appeal the results to the U.S. Supreme Court.

The ruling is a great victory for Padilla's court-appointed lawyer, Donna Newman, who valiantly fought for Padilla for the 18 months after she lost contact with him. Judge  Michael B. Mukasey had overruled her motion that he be released and not held as a material witness, but Mukasey ordered that Padilla had the right to counsel. The government would have none of that. Lawyers would interfere with their questioning of the "witness." Rather than play by the rules and allow him access to his lawyer, the government appealed to some higher up (Ashcroft? Rumsfeld? Bush?) to name Padilla an "enemy combatant." When Bush signed the order, the Pentagon sent officials to remove Padilla from the New York jail where he was being housed and incarcerate him in a navy brig in Charleston, South Carolina. Holding Padilla as a military prisoner was the basis of Newman's petition for habeas corpus, an ancient form of legal action that challenges the basis of one's detention by the government.

Taking Padilla (along with the other American enemy combatant, Yasir Hamdi) to Charleston revealed another plan, as well--that any protestations from pesky lawyers would be heard by the conservative Fourth Circuit Court of Appeals. The Second Circuit brushed aside this effort, finding that it had jurisdiction over Rumsfeld in this habeas corpus petition because Rumsfeld directed Padilla's removal from New York.

Out on the West coast, the Ninth Circuit Court of Appeals did not follow the lead of their brethren on the U.S. Court of Appeals for the District of Columbia. The D.C. court had ruled that Guantanamo prisoners have no right to ask a court to review their detention orders. The Supreme Court has agreed to hear the prisoners appeal from the D.C. court's ruling solely to determine if federal courts can entertain the claim of prisoners' of the U.S. in Guantanamo Bay, Cuba to challenge their petitions with a writ of habeas corpus.

The disingenuous protestations of the government notwithstanding (it argues that Guantanamo Bay Naval Base is part of the sovereign territory of Cuba, even though the lease with the Cuban government gives the U.S. sole civil and criminal jurisdiction over people and acts taking place within its 40-square-mile borders), the Ninth Circuit judges reasoned, "We simply cannot accept the government's position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included . . . without permitting such prisoners recourse of any kind to any judicial forum," said the decision.

If the government files an appeal of the Ninth Circuit's ruling, the Supreme Court will likely consolidate the cases and hear argument on both in the Spring of 2004.

Posted by Elaine Cassel at December 19, 2003 5:39 AM

Detained in America: A Guest Column by Bruce Jackson

Filed under: Imported

During a recent interview on a New Zealand radio broadcast, I was asked, "What is going on over there? This is not what we think of when we think of America."  

The journalist was referring to Americans being held as enemy combatants, without lawyers, charges, or trials, and the 660 foreign prisoners in Guantanamo Bay, Cuba. I was glad he asked, for I rarely am asked that question by Americans, all of whom should be crying out for answers as to what, indeed, is going on here.

While Americans don't seem to care much about their brother citizens and aliens disappearing in the black hole of a law-free zone that Bush and Rumsfield have created in the name of the "war on terror," citizens from other parts of the world express alarm.

Bruce Jackson, State University of Buffalo Distinguished Professor of American Culture and English Literature, was recently asked to write about the American policy of detentions and arrests that the Bush administration has engaged in on several fronts since September 11 for an Italian journal. He has kindly allowed me to reprint the article in its entirety.

Jackson is the editor of the political and cultural website, Buffalo Report.

Bruce Jackson

The Desaparecidos of George W. Bush

(This article appeared in Italian in the December 2003 issue of LatinoAmerica.)

Arrests

Immediately after the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, United States officials began large-scale detentions of foreign Arabic nationals and Muslims. Many, if not most, of the detentions were on the flimsiest of excuses—overstaying a visa, for example—something that would ordinarily have been dealt with by a note saying "come in and get this straightened out."

It was important that these individuals were "detained" rather than "arrested." Had they been arrested, they would have been caught up in the criminal justice system, and they would have had access to its protections. If they were detained, they were in limbo, which is just what the Bush administration wanted.

A June 2003 American Civil Liberties Union report summarized a study by the Justice Department's Office of the Inspector General that was "highly critical of what it shows to be the wholesale and long-term preventive detention of immigrants swept up in the months following 9/11." Immigrants were detained without charges being placed against them, and some spent eight months before they were released. They were denied access to lawyers. Hundreds of videotapes of their prison conditions were destroyed before the investigation team could look at them. The government refused to release the names of those detained. Deportation hearings were closed to the press and the public. No one yet knows the names of those detained, how many were detained, how many were deported, and how many are still locked up. The report was ready for release a year earlier, but Attorney General John Ashcroft blocked it because, in its original form, it faulted senior political appointees.

An earlier Amnesty International report had expressed similar concerns: Although they are not charged with crimes, many post 9.11 detainees are held in punitive conditions in jails, sometimes alongside people charged or convicted of criminal offences. AI has received reports of cruel treatment, including prolonged solitary confinement, heavy shackling of detainees (including use of chains and leg shackles) during visits or court appearances and lack of adequate outdoor exercise. There have also been allegations of physical and verbal abuse. Amnesty International has heard reports from family members that for weeks they have been unable to establish if and where their loved ones were being held. Lawyers have also had difficulty trying to establish where their clients are held or when they have a hearing before the immigration court. One lawyer recounted how he would call with a detainee's name and date of birth and was told that they were ''not in the system'' even though they were in detention. ("United States of America: Amnesty International's concerns regarding post September 11 detentions in the USA," 14 March 2002)

Some individuals detained for overstaying their visas had in fact applied in proper and timely fashion for extensions, but the Immigration and Naturalization Service hadn't acted on their requests because of its ordinary backlog. These visitors had done exactly what they were supposed to have done under U.S. law, but even so, they were detained under brutal conditions for long periods of time, and, in an unknown number of cases deported in the dark of night with nothing but the clothes on their backs without even the opportunity to call their families to say they were alive and more or less well.

At first, U.S. Attorney General John Ashcroft bragged about the numbers of detentions, but he fell silent after November 5, 2001, when the total reached 1182 detainees. The present total, says David Cole, author of the important new book on abuse of aliens by military and criminal justice officials, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (NY: The New Press, 2003),  had by May 2003 risen to at least 5000. The number remains approximate because the government still refuses to release the names of the prisoners or the total number of them. It justifies this on the grounds of "national security."

Since September 11, 2001, writes Cole, "The government has selectively subjected foreign nationals to interviews, registration, automatic detention, and deportation based on their Arab or Muslim national origin; detained thousands of them, here and abroad; tried many of them in secret, and refused to provide any trials or hearings whatsoever to others; interrogated them for months on end under highly coercive, incommunicado conditions and without access to lawyers; authorized their exclusion based on pure speech; made them deportable for wholly innocent political associations with disfavored groups; and authorized their indefinite detention on the attorney general's say-so."

And what have these thousands of extraordinary detentions, imprisonments and deportations accomplished? According to Cole, "Only five detainees (three noncitizens from the initial wave and two citizens picked up later as material witnesses) have been charged with any terrorist-related crime. Of those five, one has been convicted of conspiracy to support terrorism; two were acquitted of all terrorism charges; the government dropped all terrorism charges against the fourth when he pled guilty to a minor infraction, and the fifth is awaiting trial."

Detainees

This is not the first time that, during a period of perceived threat, the United States government has placed people under detention primarily on the basis of ethnicity. During World War II, for example, the U.S. government placed more than 110,000 Japanese-Americans in concentration camps under Executive Order 9012. In addition, U.S. agencies forcibly brought 2000 persons of Japanese descent to the U.S. from Latin America during World War II. They were imprisoned as well. What happened to them was an abomination, an atrocity, but it was not invisible and the detainees were not incommunicado. Those people were unjustly imprisoned, but they weren't disappeared. People knew where they were and when the war was over they were set free.

Not so the case with thousands of foreign nationals detained or arrested without notice after 11 September 2001. They were imprisoned without cause, and kept invisible from attorneys who might help them or families living in pain because of their unexplained disappearance. Bush and Ashcroft are up to something new on the American scene.

Guantánamo

In addition to the 5000 or more domestic detentions, there are the approximately 650 Afghanistani, British, Australian and other prisoners on the U.S. military base in Guantánamo Bay, Cuba. The U.S. invaded Afghanistan presumably because it provided a base for Osama bin Laden's Al Qaeda organization, which had executed the 9/11 attacks on the U.S. The Taliban, religious fundamentalists who suppressed women and destroyed public art, were disliked almost everywhere, and no government seemed to mind that the U.S. went in determined to drive them from power. However loathsome the Taliban may seem to westerners, there remain serious questions about the legitimacy of the U.S. removal of hundreds of people—some of them as young as 13— to an isolated prison in a U.S. naval base in Cuba, where they are kept under brutal and repressive conditions, permitted no access to attorneys or any other visitors, held without formal charge for a term with no end other than the whim of the captors.

Why are these men and children still being held? Are they prisoners of war or kidnap victims? What are they being held for? Are they being questioned for information about bin Laden? How much useful information about bin Laden's present whereabouts and activities could they possibly have? Are they being tortured? Since no one outside the government knows exactly how many persons were taken in the transports to Cuba, no one will know how many die there, their bodies buried in unmarked graves or dropped from boats at sea in the dark of night. Human rights organizations such as Amnesty International and Human Rights Watch have condemned the Cuban situation, but the Bush administration merely stonewalls all criticism.

Bush logic

The Bush Administration at first justified what it was doing by saying the threat was great and the people being so brutally treated weren't American citizens anyway, so they weren't entitled to the same protections as U.S. citizens. Even though the U.S. Constitution makes no distinction between citizen and non-citizen when it comes to such rights as legal representation, speedy trial, and cruel and unusual punishment, over the years, especially during times of war, the courts have been far sloppier with the application of those standards to non-citizens, particularly those connected to the opponents in war.

Bush insists these actions and powers are necessary in his war on "terrorism." But terrorism is a behavior or a strategy, not a nation or a group. We know where a nation's boundaries are and who its citizens are; what are the boundaries and citizens of a behavior or a strategy? A war without an enemy is a war without end. So these extraordinary wartime powers have, almost without notice by the Congress or the press, become permanent powers. It will take huge work to rid us of them.

The Bush Administration justifies its secret detentions with the argument that if the government announced the names and numbers of its detainees and deportees, then Al Qaeda would know which of its operatives in the United States were now prisoners or had now been deported.

This is probably as absurd as it seems. The theory presumes that Al Qaeda leaders cannot do ordinary arithmetic, that they cannot subtract the missing from the accounted-for and figure out who is left and who is not.This is very much like the U.S. military classifying and keeping secret its estimates of National Liberation Front casualties during the 1968 Tet Offensive in Vietnam. Surely the NLF knew how many soldiers it sent out in that operation and how many made it back. Surely the NLF was capable of subtraction.

In both instances—Vietnam in 1968 and the United States in 2003—the numbers were being hidden from the American people, not some real or hypothetical antagonist. But why?

How citizens become aliens

There is a third group of Bush Administration desaparecidos: American citizens Bush and Ashcroft simply decide are terrorists or involved with terrorists. Bush has asserted that he has the power to declare American citizens agents of enemy powers, and therefore not protected by international law, U.S. domestic law, or the laws of war. No previous American president has ever claimed such authority. Bush has thus far exercised this extraordinary new presidential power over two American citizens, each of whom he has declared an "enemy combatant" and therefore subject to military rather than civilian law. They are Yasir Hamdi (arrested in Afghanistan) and  Jose Padilla (arrested in Chicago). Both have been placed in military prisons where they have no access to lawyers, family or anyone else in the outside world; both, presumably, will be subject to secret military trials, secret post-trial imprisonment, and perhaps even secret executions.

No charges have been placed against Padilla. The government has insisted that giving him access to a lawyer would interfere with their continuing interrogation, and thus far the courts have gone along. He was originally detained as a material witness, then, when the federal judge in the case said he was entitled to an attorney and held the Justice Department in contempt for refusing to let him have one, the Administration declared him an "enemy combatant" and removed him from the jurisdiction of the court. His lawyers, with whom he cannot communicate, are appealing that status.

Bush has, in sum, taken the position that he has the power to declare individuals outside the protection of the law. Merely by his own declaration, and without trial or any kind of juridicial proceeding, ordinary visitors and ordinary Americans can be immediately deprived of every civil right provided by the Constitution of the United States and international law.

If someone is outside the law, then nothing done to that person is illegal. That is what medieval notions of 'outlawry' were all about.This reminds me what Suetonius wrote about the executioners in Tiberius' time confronted with the problem of virgins who had been condemned to death. The method of execution was strangulation, but it was considered impious to strangle virgins. So the executioners first raped their victims, then strangled them. Hitler made sure that everything he did was legal. He had the law rewritten to legitimize what he wanted to do and the German courts went along. Sometimes the greatest atrocities are accomplished under the crooked mantle of law.

What next?

Are there more desaparecidos about whom nothing is known because they don't have family to call and call again looking for their missing sons or brothers or fathers? What of the seekers of American amnesty who have been deported in secret and who were delivered to hostile authorities in countries where they were jailed, tortured, or killed? Such countries do not send out press releases and they, like George Bush, do not permit their imprisoned and condemned to make telephone calls.

Thus far, public response to Bush's and Ashcroft's extraordinary arrogation of judicial power has been minimal. Cole attributes the lack of outrage to the simple fact that most of those affected are foreigners or resident aliens—largely Arabs and Muslims. The two cases of American citizens having their rights suspended on presidential order have aroused some commentary in the general press, but not much, and few members of the general public seem aware of either.

Government rarely gives back power it has taken. What will Bush and Ashcroft do next? If they can put Jose Padilla in cold storage in an unnamed naval brig, they can, in theory, put anyone there. No one knows how far they are willing to go.

In its astonishing decision upholding the administration's refusal to allow Hamdi his ordinary Constitutional rights, the Fourth Circuit wrote, "while the Constitution assigns courts the duty generally to review executive detentions that are alleged to be illegal, the Constitution does not specifically contemplate any role for courts in the conduct of war, or in foreign policy generally....Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framer's scheme. Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one. The constitutional allocation of war powers affords the President extraordinarily broad authority as Commander in Chief and compels courts to assume a deferential posture in reviewing exercises of this authority. The executive branch is also in the best position to appraise the status of a conflict, and the cessation of hostilities would seem no less a matter of political competence than the initiation of them." (Hamdi v. Rumsfeld, 4th Circuit Court of Appeals, January 8, 2003).

That is to say: if the administration says we are at war, then the courts cannot argue; if the administration says civil rights must be suspended for certain individuals, the courts cannot interfere. Do you want to see a court capitulating to power? Read Hamdi v. Rumsfeld.

The United States, civil rights attorney Elaine Cassel reminds me, has three branches of government that, in theory, exist in an exquisite balance, each preventing the others from sinking into excess. That balance, she points out, is meaningless when two of the branches abdicate their responsibility, which is what has happened in regard to the administration's claims of power in its ill-defined and potentially endless war on terrorism. The judiciary has, she says, "accepted without argument the administration's claim that we are in a continuing time of war, a war without end, with an amorphous enemy that is whatever they say it is. And Congress is sitting idly by, making a few noises, but not enough to make a difference."

In the face of considerable public pressure and what might have been a Supreme Court decision going against them, Rumsfeld and Bush recently backed off a little bit on the Hamdi case: they've said he can have an attorney, but they haven't agreed to let the attorney do anything for him. This may be one more White House distinction without a difference. (See Elaine Cassel, "Yaser Hamdi get a lawyer: He just can't do anything," Buffalo Report, 7 December 2007)

Now that the Bush administration has successfully claimed the right to create its own desaparecidos, and the courts and Congress have been unwilling and unable to resist that claim, one might argue that the U.S. government is doing itself far more grievous harm than anything carried out or imagined by the 9-11 plotters, or any of their successors.

Posted by Elaine Cassel at December 15, 2003 7:36 AM

Injustice So Egregious, Even Scalia Can't Defend It

Filed under: Imported

On Monday, December 8, the Supreme Court heard the appeal of Texas death row inmate Delma Banks, Jr. Banks has been scheduled for execution more than a dozen times during the 23 years he has spent on death row. His last time strapped to the Texas death-house gurney ended in a reprieve ten minutes before the murderous fluids were to begin coursing his veins.

So many travesties of justice consume the tortuous history of his case, that even execution-happy Justice Antonin Scalia gave up on trying to bolster the prosecutor's pleas of harmless error. Law enforcement officers and prosecutors lied to the trial judge and the jury and hid, concocted, and altered evidence. Yet for all their misconduct, not one of them was disciplined or called to account for their egregious conduct. You and I would be serving time for perjury and obstruction of justice. Officers of the court in Texas lie and get promoted.

Twenty-three years on death row for each of the conniving conspirators would be about right, if you ask me.

The Washington Post story details the actions of the prosecutors that border on criminal. And Linda Greenhouse from The New York Times provides more history on the twists and turns of the sordid behavior of the prosecutors and cops, who produced witnesses and testimony as if writing a fictional screenplay.

Here is what the Houston Chronicle had to say about Monday's argument:

Even conservative Supreme Court Justice  Antonin Scalia, a staunch death penalty supporter, couldn't help  the lawyer for the state of Texas on Monday to defend the conduct of prosecutors during a 1980 capital murder trial.  In the end, it appeared to be a very good day for Delma Banks Jr., one of the country's longest-serving death row inmates and whose execution the high court halted with 10 minutes to spare earlier this year. The justices will decide Banks' case by next summer. Banks was convicted and sentenced to death 23 years ago for fatally shooting his 16-year-old co-worker, Richard Wayne Whitehead, near Texarkana and stealing his car. His lawyer, George Kendall, told the Supreme Court that Banks deserves a new trial, or at least a new sentencing, because Bowie County prosecutors allowed two key witnesses to lie to the jury at his trial. The prosecutors not only failed to correct the witnesses' false testimony, as the law requires  them to do, but also assured the jury in closing arguments that the testimony was true, Kendall said.

The majority of the justices repeatedly challenged Texas Assistant Attorney General Gena Bunn's argument that the prosecutors didn't lie, and that even if they did, it was up to Banks' lawyers to object at trial or in their early appeals. Justice Ruth Bader Ginsburg asked Bunn why the prosecutor, "having deceived the jury and the court," wasn't obliged to "come clean" about the lies. Scalia, a Catholic who has publicly disagreed with his church's opposition to the death penalty, at first made several attempts to bolster Bunn's arguments. But when most of his fellow justices, including centrists Sandra Day O'Connor and Anthony Kennedy, expressed dismay at the prosecutors' conduct, Scalia's support for the state's case began to falter. "Ms. Bunn, do you have any argument that it wouldn't have mattered" if the jury had known the truth? he asked. "I suggest you might train your guns on that."

Scalia also suggested the court should send the case back to the U.S. 5th Circuit Court of Appeals in New Orleans on at least one issue. Bunn conceded that would be a wise course, reversing the state's earlier stance that the court had ruled correctly on everything and that Banks should be put to death immediately. Kendall told the court that what the prosecutors did was "purposefuland intentional misconduct," and he said the 5th Circuit had ignored the Supreme Court's previous rulings in death penalty cases and failed to remedy obvious trial errors. Banks' case is one of three

No physical evidence in the murder case linked Banks, then 21, to the crime. He had no prior criminal record, but he quickly became a suspect because he was the last person seen with Whitehead. At his trial, a key witness and two-time felon, Charles Cook, testifiedthat Banks had confessed to him the day after the crime. Cook said Banks also gave him the murder weapon and the victim's stolen 1969 Ford Mustang.

Cook denied that he had cut a deal with prosecutors for his testimony and that he had been coached on what to say. Both of those assertions were lies, but Bowie County prosecutors never corrected him. They also failed to tell Banks' lawyer that they had dropped an arson charge against Cook in exchange for his testimony. That fact was discovered by Banks' appellate attorneys in 1998 --18 years after the trial. Also discovered then was a 74-page transcript of a meeting in which an investigator and a prosecutor coached Cook on his trial testimony, mocking him when he was unable to keep his own story straight.

Kendall argued that the jury relied on Cook's false testimony, as well as on lies by the prosecutor -- then-Bowie County District Attorney Louis Raffaelli, who has since died. During the sentencing phase, Kendall argued, jurors relied on the false testimony of another witness, Robert Farr, an informant who was paid $200 to help police find the murder weapon and pin the crime on Banks. Farr testified that Banks had traveled to Dallas with him to collect the gun from Cook so that Banks could commit future armed robberies. The jury, Kendall said, used that information to decide that Banks would be a future danger -- a requirement of imposing the death penalty in Texas. Asked during the trial whether he had accepted money from police, Farr said no. Again, prosecutors failed to correct the lie.

Several former federal prosecutors and judges, including former FBI Director William Sessions, have sided with Banks in the case, arguing in court briefs that such egregious misconduct by prosecutors has the effect of "substantially undermining public confidence" in the death penalty system.

Posted by Elaine Cassel at December 10, 2003 6:40 AM

Yaser Hamdi Gets a Lawyer, He Just Can't Do Anything

Filed under: Imported

Donald Rumsfeld and George Bush had their backs against the wall, and this week they backed down a little. A closer look, though, suggests that their seeming concession may be no more than a disingenuous ploy to assuage their critics.

For almost two years, the Pentagon has held American citizen Yaser Hamdi as an "enemy combatant." Captured in Afghanistan, he is alleged to be a member of al Qaeda. He has been housed in a Navy brig in South Carolina, without being charged, with no access to attorneys or family, and with no plans for a trial.

An outraged Judge Robert Doumar in Norfolk, Virignia last year lambasted the government for its position that a judge had no place to question the government over how it treats American citizens in a time of "war," no matter how contrary the treatment is to the dictate of the U.S. Constitution. The way-to-the-right of the Supreme Court 4^th Circuit Court of Appeals, sitting in a full panel, chastised Judge Doumar for deigning to think like a judge. It said that in a time of "war on terror," a worldwide war without end, the President could do what he pleased with anyone he deemed a threat to national security or the war effort.

Now, on the eve of Hamdi's appeal of that decision reaching the Supreme Court of the United States, the Pentagon has backed down. Ok, ok, it said. Give Hamdi a lawyer. Let Federal Defender of the Eastern District of Virginia Frank Dunham see him. We have thought about it and decided that a it is no big deal to have a lawyer. Because--and here is where the other shoe drops-- we aren't going to let the lawyer do anything! No sir. Hamdi can have all the counsel he wants from Frank Dunham (who passionately argued in Zacarias Moussaoui's case in the 4th Circuit yesterday), but that does not mean that  Dunham can go to court and argue that Hamdi should not be an enemy combatant. So, have your lawyer, the Administration says. We will just emasculate him, as we would emasculate the courts themselves.

Thus, the Pentagon says it is conceding, for the purposes of this case only, that Hamdi should be allowed to consult with counsel. But it still maintains that a court cannot question enemy combatant designation.

There is reason for us all to cheer, however. Regardless of their contention that they don't give a damn about public opinion, clearly Rumsfeld and Bush do. They would never have backed off this extreme position had not present and former lawyers within Justice Department (including former terrorism chief prosecutor Michael Chertoff, now a federal court of appeals judge and Viet Dinh, author of the Patriot Act) expressed their doubts about the legality of such a position.

And, maybe, just maybe, those of us who have been shrieking and ranting and raving about the trampling of the Bill of Rights had our voices heard, too. Just a thought.

Posted by Elaine Cassel at December 4, 2003 6:34 AM

At War With The Constitution

Filed under: Imported

This week, the highly conservative 4^th Circuit U.S. Court of Appeals in Richmond, Virginia will hear the government's appeal of two of District Judge Leonie Brinkema's rulings in the case of Zacarias Moussaoui. At issue before the 4^th Circuit are no less than the 5^th (due process) and 6^th (fair trial, right to counsel, right to confront witnesses) Amendments to the Constitution and Title III of the Constitution, which sets out the power of the judiciary in our three-branch system of government

Earlier this year, Judge Brinkema ordered the government to allow Moussaoui and his attorneys to take the deposition of Ramzi Binalshibh, a captured al-Qaeda member who admittedly had knowledge of the September 11 terrorist attacks. Moussaoui is charged as a co-conspirator with Binalshibh, so what he has to say about Moussaoui's involvement in September 11 is critical to Moussaoui's defense.

Initially, the government alleged that Moussaoui was the "20^th hijacker," suggesting that Moussaoui was planning to board one of the three airplanes involved in the attacks. Moussaoui always has denied this, and the government has backed off this theory (it says that it has someone else in line to claim that title). Moussaoui has long alleged that Binalshibh may provide testimony that would help prove his innocence of the charges (in case you have not noticed, "innocent until proved guilty" has been abolished in the Ashcroft revision of the Constitution). Judge Brinkema agreed with Moussaoui's defense team, and ordered that government prosecutors make Binalshibh available for questioning by the defense team.

The government appealed that ruling, but the 4^th Circuit panel told the prosecutors to first disobey her order, then come back to them. This they did and this issue is one aspect of the appeal.

The other issue to be decided on appeal is Judge Brinkema's punishment of the government prosecutors for their contempt of her order. She said the government could not seek the death penalty against Moussaoui, nor could it parade in front of the jury dozens of September 11 victims' families. Based on what she had seen of the government's evidence, she said there is not enough to tie Moussaoui to the September 11 attacks (there is some evidence that Moussaoui was involved in planning a later attack). The government has tacitly admitted his lack of involvement, but it refuses to back off of its plans, suggesting the pressure of "sunk costs" in the energy expended to prepare the families for trial. Under the Federal Rules of Criminal Procedure, Judge Brinkema has wide discretion to make decisions about the evidence that a jury will see, as well as the penalty for a party that disobeys a court order.

The government is asking the 4^th Circuit to make Judge Brinkema allow it to conduct its case in its own way, without having to abide by the troublesome pre-Ashcroft Constitution and Rules of Federal Criminal Procedure. The prosecutors say that they, not Judge Brinkema, should determine how the trial should be conducted and what evidence gets in. They would be prosecutor and judge. In their scheme, there would be no defense team at all.

The prosecutors say that all of these "technicalities" must be abandoned in a time of "war." But Moussaoui is not in a military tribunal; he is in a court that is subject to he Constitution. Ashcroft must be having regrets that he did not name Moussaoui an enemy combatant and consign him to a military prison (as Bush did with American citizens Yaser Hamdi and Jose Padilla). Ashcroft miscalculated. It was he who had insisted that Moussaoui be tried in federal court, a tough and death-happy jurisdiction, with plenty of tough judges. Moussaoui was intended to be the scapegoat for September 11. His conviction and execution was supposed to be a slam-dunk. But Ashcroft drew the wrong judge—the independent Judge Brinkema who has said all along that she would conduct the trial with the Constitution in one hand, and the Federal Rules in another.

No one expects the government to lose in Richmond. When Yaser Hamdi appealed his designation as enemy combatant and the government's right to hold him without charge, trial or attorney indefinitely, the 4^th Circuit twice (first with a three judge panel, then with 11 judges sitting) handed the Bush Administration a resounding victory. They are likely to do so again, ruling that the prosecutors, as an arm of the Executive Branch, can decide how to conduct trials in a time of war, with "terror," that amorphous, stateless, and eternal enemy.

We are at war--and not just with "terror." What is at stake in the case of Moussaoui v. U.S. is the rule of law and the Constitution. If the government wins, we all lose.

Posted by Elaine Cassel at December 1, 2003 6:37 AM

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