January 2004

So Now We Know--Child Prisoners in Guantanamo

Filed under: Imported

After holding them prisoner for almost two years, the United States has released three "enemy combatants," boys ages 13 to 15, captured in Afghanistan and held in Guantanamo Bay, Cuba. Reluctantly, no doubt, Bush and Rumsfeld had to return the boys to Afghanistan, since they were no longer of any "intelligence" use to them. During their stay at the island camp, they were denied access to their families or attorneys.

The Administration's spin on their imprisonment goes to great lengths to make us think that the boys were at a fun camp, and not a prison camp. Illiterate, we are told, when they arrived at Guantanamo, they now can read at the fifth grade level. They learned to love American movies and cartoons. And they became proficient in soccer and bocce--a credit to the sensitivity of their captors to the need for cultural diversity. The boys were guarded by reservists who had "experience" dealing with juvenile delinquents. Given the state of juvenile justice in America, that does not inspire confidence that the boys, who were not charged with any crime, were treated with any degree of decency or humanity.

The worst that was reported about the actions that landed them in Cuba was that one of the boys had "tried" to gain "weapons" to fight against the U.S. Given the vagueness of the term weapon, and that even nail scissors are weapons in the eyes of the Transportation Security Administration, we probably don't want to know the "weapon" one of the three tired to access. One thing is certain--if it were a firearm, that boy would never have been released.

There is no way Americans will ever know the truth about these young men--or how they were treated. Thankfully, they are going "home." But what about the other 675 (that number is fifteen higher than the 660 we had been told were detained there). What we don't know about Guantanamo and its inmates should strike terror in the hearts of Americans. Sources have it that Kellogg Brown Root, of Halliburton fame, is continuing to build prison facilities on the Naval base.

Sounds like Gitmo is anything from temporary digs. Wonder who Bush and Rumsfeld have in mind to fill the empty beds? 

Posted by Elaine Cassel at January 29, 2004 7:19 PM

Judges Speak Out About Keeping the Law at Bay in Guantanamo

Filed under: Imported

President Bush and Secretary of Defense Donald Rumsfeld's detention in Guantanamo Bay, Cuba of 660 boys and men captured by U.S. forces in Afghanistan continue to trouble many in the legal profession. Last week, military defense attorneys appointed to represent some of the prisoners scheduled to be tried (by military tribunals) complained that the rules of engagement in the courtroom could render them at risk of violating their state bar organizations' professional rules of conduct. For instance, the rules of the proceedings allow the government to listen in on attorney-client conversations and allow the military to keep some evidence secret from the men on trials.

Though military attorneys assure me that there is no conflict of interest, it is hard to imagine how being represented by a military attorney when being tried as an enemy combatant by the military can be anything akin to "effective" assistance of counsel. This is not the same as a military person being court-martialed for some on-base crime--these men are being charged with fighting against U.S. forces in Afghanistan.

This week, three former federal judges filed briefs with the U.S. Supreme Court, who has agreed to here whether or not the prisoners can even access federal courts. The judges are not arguing against the imprisonment, but in favor of judicial review of their detention. This is precisely the limit the Supreme Court has placed on its review. The federal courts in the District of Columbia ruled that because the men are in Cuba they are beyond the reach of the U.S. courts.  Not so, say their lawyers, who point out that the lease between Cuba and the U.S. give the U.S. sovereignty over the base.

In addition to being exempt from federal court review, the Bush Administration claims that international law, rules of war, and the Geneva Conventions do not apply to these prisoners.  They insist that the fence around Guantanamo does more than keep the prisoners in.  It keeps the law out. That's a conclusions that the federal judges--and apparently some members of the Supreme Court--find unacceptable.  The government's briefs are due in February and the Court will hear argument in the case in late spring.

Posted by Elaine Cassel at January 27, 2004 7:48 AM

Supreme Court Sanctions Secret Arrests

Filed under: Imported

The New York Times took a stand this week and roundly criticized the Supreme Court's refusal to hear an appeal by journalists and public interest law groups challenging the secret roundup and arrests of more than 1,000 Arab and Muslim non-citizens in the days immediately after September 11, 2001. They rightly note that in sanctioning secret arrests, the freedom of all Americans is diminished. For as Georgetown University Law Professor and author of Enemy Aliens keeps reminding us, what "they" do to immigrants they next do to "us."

In the days after the terrorist attacks, nearly 1,000 suspects, most of them Muslim men, were detained. A vast majority proved to have no connection to terrorism. Many were deported for immigration violations. The government released the names of the 129 who were accused of crimes, but it refused to identify the hundreds who were not charged.

The Center for National Security Studies and other groups sued under the Freedom of Information Act to learn their names and the circumstances of their arrests. The government invoked an exemption to the act. But the plaintiffs, backed by news organizations, including The New York Times, contended that the exemption did not apply because this sort of information was given out in ordinary police investigations. They argued that the public needs to monitor detentions to ensure that the government is not trampling on constitutional rights.

The trial court agreed, and ordered most names released. But an appeals court reversed that decision, 2 to 1. In dissent, Judge David Tatel warned that the court was ignoring the public's interest in knowing whether detainees' rights had been denied by "detaining them mainly because of their religion or ethnicity, holding them in custody for extended periods without charge, or preventing them from seeking or communicating with legal counsel."

The Supreme Court last week granted the appeal of American citizen Yaser Hamdi, held as an "enemy combatant" without charge or legal counsel. But the Court is picking and choosing its battles. It is not going to go head-to-head with the Bush Administration on every attack on civil liberties. For civil libertarians, the cases the Court does not take may say as much, or more, than the cases they do take and decide. Though we never know the reasons for the decisions not to grant appeals, the message this denial sends to the Bush administration is to proceed with the practice of secret arrests, imprisonments, and deportations.

Attorney General John Ashcroft says, if the prisoners want you to know who they are, let them pick up the phone and call you. If you have been in a federal prison lately, you will recognize the patent absurdity of that comment. Further, when the government makes these secret arrests, its thugs move the "detainees" all over the country, at random. no doubt to help maintain the secrecy and to generate more fear and hopelessness in their subjects.

Get used to it. These practices, now sanctioned by the court, may become the norm in the US in the near future. And it won't "just" be immigrants who will disappear. It will be you and me. Secretary of Homeland "Security" Tom Ridge tells Americans that they should have a  "safety" plan. We all better have a plan for our friends and families to start looking for us when we disappear.

Posted by Elaine Cassel at January 16, 2004 6:54 AM

Fly, Fly Away

Filed under: Imported

Now that Big Brother has a way to create a dossier on each and every one of us, flying a commercial airliner puts us at risk of being "persons of interest." Buy a ticket and there is a file with your name on it, to be used by our government, we are assured, only to "track terrorists." The information soon to be demanded of airlines will allow Big Brother to aggregate all other computer-based information about us.

Remember the Total Information Awareness (TIA) program that Admiral John Poindexter was drummed out of town for proposing? I have reported several times that the concept was alive and well in several iterations (among them, MATRIX, the interstate system that allows states to exchange criminal and other records). But TIA has morphed yet again.

When the Transportation Security Administration proposed its own version of TIA, CAPPS (Computer Assisted Passenger PreScreening Program), it wanted Delta Airlines to pilot the program. Delta got cold feet when privacy advocates urged a boycott of Delta. No other airline stepped up to take on the task, so the government has decided it will require the information or the airlines does not fly.

The Washington Post reported the government's plans to push ahead with the system, prepared to go into effect as early as February. Once the airlines hand over the information to Transportation Security Administration, the passenger (that will be you and me) will be coded by level of risk - from terrorist to Mother Teresa.

According to the Post, the system will collect travelers' full name, home address and telephone number, date of birth and travel itinerary. The information will be fed into large databases, such as Lexis-Nexis and Acxiom, that tap public records and commercial computer banks, such as shopping mailing lists, to verify that passengers are who they say they are. Once a passenger is identified, the system will compare that traveler against wanted criminals and suspected terrorists contained in other databases.

Supposedly the mass of information will make the intelligence more reliable--there may be more than one Elaine Cassel but not with my VISA account number and my cell phone. Wow, that's a relief.

The two-step process will result in a numerical and color score for each passenger. A "red" rating means a passenger will be prohibited from boarding. "Yellow" indicates that a passenger will receive additional scrutiny at the checkpoint and a "green" rating paves the way for a standard trip through security. Also factored into one's score will be intelligence about certain routes and airports where there might be higher-rated risks to security.

If you are lucky, the government might put you in its "trusted traveler" program. Wonder how you get on that list?  Democrats, Independents, and Greens need not apply, nor anyone with an "Arab" sounding last name, that's for certain. Of course, we will never know which list we are on or how we got there, as the hallmark of this list, as with all things Bush, is secrecy, secrecy, secrecy.

But, before your fear of flying leads you to cancel that Caribbean vacation, note that Nuala O'Connor Kelly, the chief privacy officer at Homeland Security, promises that the government will, of course, impose "strict rules" about which agencies can use the passenger information and how it could be used.

There, now don't you feel better? Ao get on Orbitz, buy that cheap ticket, and fly away. You might get more than you bargained for, though. Perhaps a one-way ticket to Guantanamo, a military prison or, if you're one of the lucky ones, your local federal court where you can be charged with thinking "terrorist thoughts." That's a story for another day.

Posted by Elaine Cassel at January 13, 2004 6:57 AM

Supreme Court Once Again Shows Its Independence

Filed under: Imported

On Friday, January 9, the the Supreme Court announced that it will decide whether the Constitution authorizes President Bush to order the indefinite detention of U.S. citizens captured abroad allegedly fighting for terrorist groups.

In a brief order, the justices rebuffed repeated Bush administration requests to turn down the appeal of Yaser Esam Hamdi, a U.S.-born Saudi and alleged Taliban fighter who was taken into custody by U.S. forces in Afghanistan in late 2001. He has been held by the U.S. military without access to a lawyer or any other outside contact ever since. The Fourth U.S. Circuit Court of Appeals sitting in Richmond, Virginia had handed the Administration a big victory this year when it accepted the administration's view that the judicial branch should not second-guess the executive to consider military matters.

This was the second time in as many months that the high court showed its independence from the Bush Administration. In accepting the appeal of the Guantanamo Bay enemy combatants, the court rejected Solicitor General Theodore Olson's warning that what the President did with them was none of its business. Olson argued the same in the case of Hamdi, an American citizen picked up in Afghanistan where he is said to have been fighting with the Taliban.

The court's refusal to defer to the President indicates not necessarily a disagreement with the policy, but an assertion of its role in our three-branch system of government and its preogatiave to review acts of the legislative and executive branches to see if they comport with the law and the Constitution. The Court may well assert its right of review and defer to the practice as within the war-powers of the President.

A third terrorism-related case--that of American citizen Jose Padilla-- is also pending, the alleged "dirty bomb" conspirator who has also been held without a hearing or legal representation. Two weeks ago, the Second Circuit Court of Appeals, sitting in New York, ruled that the President had no authority to detain an American citizen absent an act of Congress.

This week, Olson let it be known that he would be seeking an expedited appeal of that decision, bypassing the opportunity for a full panel of the Second Circuit court to rehear the case. Since Hamdi and Padilla represent different issues--Hamdi, an American captured on a battlefield, Padilla an American captured in Chicago and originally detained only for questioning--the Court will likely take the Padilla case and maybe even consolidate it with the Hamdi case.

Posted by Elaine Cassel at January 12, 2004 6:58 AM

Who's Winning the War on Civil Liberties?

Filed under: Imported

On September 15, 2001, President Bush declared a "war" on "terror."  It will be, he said, "a conflict without battlefields or beachheads." Actually there have been battlefields and beachheads. First in Afghanistan in 2001. Then, in 2003, the absence of weapons of mass destruction had Bush changing his tune on Iraq—it now was the latest front in the war. Within a few weeks after the September 11 attacks, another war was declared. It was a war on civil liberties fought, ostensibly, in aid of the war on terror. In order to win this ideological war with unconventional soldiers, the Bush Administration, led by Attorney General John Ashcroft, set out to change the laws so as to meet what it said was exigent demands for this war that would, in Bush's words, last a long time.

Like the war on terror, the Bush Administration's war on civil liberties was undertaken in the name of national security and in defense of "freedom." The individual victims are diverse—Americans, legal aliens, illegal. Institutional victims include Muslim charities, organizations that support Palestinians, and activist mosques. The greater victim, however, is the Constitution and the rule of law. It can no longer be said that we have three strong, independent branches of government—the executive, the legislative, and the judicial. The founding fathers, of whom much is written these days, planned three co-equal branches of government precisely to deter the power of a despotic President. But rather than protect us from an over-zealous executive branch, the Congress and the courts are providing Bush important ammunition by way of legislation. Hundreds of new laws and regulations have come to pass, hundreds of old laws have been amended, and the most massive government reorganization since the New Deal put into place in the name of fighting "terror." Many federal judges, including more than 150 Bush appointees who were picked because of their loyalty to the President and their likely tendency to side with him in legal battles, stand ready to thwart efforts to curtail the Administration's efforts to slash civil liberties. 

The Administration has done a great public relations job selling the fact that some freedoms must be sacrificed in the name of national security. From the day the war on terror was declared, Ashcroft has been labeling those who criticize his tactics as being soft on terrorism. The ultimate branding coup came with some staffer dreaming up the acronym "PATRIOT" for the law that makes a mockery of many constitutional protections. To be against the Patriot Act makes one, well, "un"patriotic. Some aspects of the war on civil liberties harkens back to a time during World War II when fear and claims of national protection led to the internment of Japanese American citizens.  The rounding up of thousands of immigrants immediately after September 11 and the imprisonment of hundreds of them for lengthy periods of time recall a dark chapter in our country's history, a chapter which, it is important to remember, was held to be perfectly legal by the U.S. Supreme Court.

The Supreme Court of the U.S., as of this writing, has yet to hear any legal challenges to the powers President Bush has asserted in the name of the war on terror or challenges to the Patriot Act. It has granted the appeal of some of the Guantanamo Bay prisoners who wish to challenge Bush's detention of them through the ancient writ of habeas corpus. It has not yet announced if it will hear the appeal of American citizen Yaser Hamdi, held as an enemy combatant for almost two years without being charged with any offense and without access to an attorney. The full panel federal court of appeals for the Fourth Circuit (in Richmond, Virginia) said Bush could do as he pleased with Hamdi. The government will certainly appeal a recent federal appellate court ruling concerning  American citizen Jose Padilla, who originally was detained as a material witness to a grand jury investigation and subsequently declared an enemy combatant and transferred to the same military brig with Hamdi. The Second Circuit Court of Appeals ruled in December that Padilla had to be released—that there was no basis in law for Bush's detention of him and that the President can only act pursuant to law. 

It is hard to say what the Supreme Court will do with the cases it hears. Justices Sandra Day O'Connor and Ruth Bader Ginsburg, virtual ideological opposites on the court, have joined moderate Justice Anthony Kennedy in making public statements that Americans may have to give up some liberties in order to secure freedom for ourselves, our children, and their children. Presciently, prior to September 11, Chief Justice William Rehnquist wrote a book about the powers of the president in a time of "war"—and those powers are virtually without limit or question and include suspension of the writ of habeas corpus (as was done by President Lincoln during the Civil War). The "great" writ, as it is called, is the basis for Padilla, Hamdi, and the Guantanamo Bay prisoners' petitions for judicial review of their lawless detentions.

With a compliant, even complacent Congress, the Supreme Court is our only hope to win the war on civil liberties. Will it show its independence and vote with the law, or go with politics and hand big wins to the man they made President?  In a few months, we will know. Now, we can only watch and wait

Posted by Elaine Cassel at January 9, 2004 3:44 PM

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