Showing posts with label Justice Department. Show all posts
Showing posts with label Justice Department. Show all posts

29 August 2011

Jordan Flaherty : The Battle for New Orleans Continues

New Orleans after Katrina. Image from Slate.

Six years after Katrina:
The battle for New Orleans continues
Political power has shifted to whites, but blacks have not given up their struggle for a voice -- and justice.
By Jordan Flaherty / The Rag Blog / August 29, 2011

NEW ORLEANS -- As this weekend’s storm has reminded us, hurricanes can be a threat to U.S. cities on the East Coast as well the Gulf. But the vast changes that have taken place in New Orleans since Katrina have had little to do with weather, and everything to do with political struggles.

Six years after the federal levees failed and 80 percent of the city was flooded, New Orleans has lost 80,000 jobs and 110,000 residents. It is a whiter and wealthier city, with tourist areas well maintained while communities like the Lower Ninth Ward remain devastated. Beyond the statistics, it is still a much contested city.

Politics continues to shape how the changes to New Orleans are viewed. For some, the city is a crime scene of corporate profiteering and the mass displacement of African Americans and working poor; but for others it’s an example of bold public sector reforms, taken in the aftermath of a natural disaster, that have led the way for other cities.

In the wake of Katrina, New Orleans saw the rise of a new class of citizens. They self-identify as YURPs -- Young Urban Rebuilding Professionals -- and they work in architecture, urban planning, education, and related fields.

While the city was still mostly empty, they spoke of a freedom to experiment, unfettered by the barriers of bureaucratic red tape and public comment. Working with local and national political and business leaders, they made rapid changes in the city’s education system, public housing, health care, and nonprofit sector.

Along the way, the face of elected government changed in the city and state. Among the offices that switched from black to white were mayor, police chief, district attorney, and representatives on the school board and city council, which both switched to white majorities for the first time in a generation. Louisiana also transformed from a state with several statewide elected Democrats, to having only one -- Senator Mary Landrieu.

While black community leaders have said that the displacement after the storm has robbed African Americans of their civic representation, another narrative has also taken shape. Many in the media and business elite have said that a new political class -- which happens to be mostly white -- is reshaping the politics of the city into a post-racial era.

“Our efforts are changing old ways of thinking,” said Mayor Mitch Landrieu, shortly after he was elected in 2010. After accusing his critics of being stuck in the past, Landrieu -- who was the first mayor in modern memory elected with the support of a majority of both black and white voters -- added that "We're going to rediscipline ourselves in this city."

The changes in the public sector have been widespread. Shortly after the storm, the entire staff of the public school system was fired. Their union, which had been the largest union in the city, ceased to be recognized. With many parents, students and teachers driven out of the city by Katrina and unable to have a say in the decision, the state took over the city’s schools and began shifting them over to charters.

“The reorganization of the public schools has created a separate but unequal tiered system of schools that steers a minority of students, including virtually all of the city’s white students, into a set of selective, higher-performing schools and most of the city’s students of color into a set of lower-performing schools,” writes lawyer and activist Bill Quigley, in a report prepared with fellow Loyola law professor Davida Finger.

Photo from Getty Images / The Root.

In many ways, the changes in New Orleans' school system, initiated almost six years ago, foreshadowed a battle that has played out more conspicuously this year in Wisconsin, Indiana, New Jersey, and other states where teachers and their unions were assailed by both Republican governors and liberal reformers such as the filmmakers behind Waiting for Superman.

Similarly, the battle of New Orleans public housing -- which was torn down and replaced by new units built in public-private partnerships that house a small percentage of the former residents -- prefigured national battles over government’s role in solving problems related to poverty.

The anger at the changes in New Orleans’ black community is palpable. It comes out at city council meetings, on local black talk radio station WBOK , and in protests. “Since New Orleans was declared a blank slate, we are the social experimental lab of the world,” says Endesha Juakali, a housing rights activist. However, despite the changes, grassroots resistance continues. “For those of us that lived and are still living the disaster, moving on is not an option,” adds Juakali.

Resistance to the dominant agenda has also led to reform of the city’s criminal justice system. But this reform is very different from the others, with leadership coming from African-American residents at the grassroots, including those most affected by both crime and policing.

In the aftermath of Katrina, media images famously depicted poor New Orleanians as criminal and dangerous. In fact, at one point it was announced that rescue efforts were put on hold because of the violence. In response, the second-in-charge of the New Orleans Police Department reportedly told officers to shoot looters, and the governor announced that she had given the National Guard orders to shoot to kill.

Over the following days, police shot and killed several civilians. A police sniper wounded a young African American named Henry Glover, and other officers took and burned his body behind a levee. A 45-year-old grandfather named Danny Brumfield, Sr. was shot in the back in front of his family outside the New Orleans convention center. Two black families -- the Madisons and Bartholomews -- walking across New Orleans’ Danziger Bridge fell under a hail of gunfire from a group of officers.

“We had more incidents of police misconduct than civilian misconduct,” says former District Attorney Eddie Jordan, who pursued charges against officers but had the charges thrown out by a judge. “All these stories of looting, it pales next to what the police did.”

District Attorney Jordan, who angered many in the political establishment when he brought charges against officers and was forced to resign soon after, was not the only one who failed to bring accountability for the post-Katrina violence. In fact, every check and balance in the city’s criminal justice system failed.

For years, family members of the victims pressured the media, the U.S. Attorney’s office, and Eddie Jordan’s replacement in the DA’s office, Leon Cannizzaro. “The media didn’t want to give me the time of day,” says William Tanner, who saw officers take away Glover’s body. “They called me a raving idiot.”

Finally after more than three years of protests, press conferences, and lobbying, the Justice Department launched aggressive investigations of the Glover, Brumfield, and Danziger cases in early 2009. In recent months, three officers were convicted in the Glover killing (although one conviction was overturned), two were convicted in beating a man to death just before the storm, and 10 officers either plead guilty or were convicted in the Danziger killing and cover-up.

In the Danziger case, the jury found that officers had not only killed two civilians and wounded four, but also engaged in a wide-ranging conspiracy that involved planted evidence, invented witnesses, and secret meetings.

The Justice Department has at least seven more open investigations on New Orleans police killings, and has indicated its plans for more formal oversight of the NOPD, as well as the city jail. In this area, New Orleans is also leading the way -- in a remarkable change from Justice Department policy during the Bush Administration, the DOJ is also looking at oversight of police departments in Newark, Denver, and Seattle.

In the national struggle against law enforcement violence, there is much to be learned from the victims of New Orleans police violence who led a remarkable struggle against a wall of official silence, and now have begun to win justice. “This is an opening,” explains New Orleans police accountability activist Malcolm Suber. “We have to push for a much more democratic system of policing in the city.”

In the closing arguments of the Danziger trial, DOJ prosecutor Bobbi Bernstein fought back against the defense claim that the officers were heroes, saying the family members of those killed deserved the title more. Noting that the official cover-up had “perverted” the system, she said, “The real heroes are the victims who stayed with an imperfect justice system that initially betrayed them.”

The jury apparently agreed with her, convicting the officers on all 25 counts.

[Jordan Flaherty is a journalist and staffer with the Louisiana Justice Institute. His award-winning reporting from the Gulf Coast has been featured in a range of outlets including The New York Times, Al Jazeera, and Argentina's Clarin newspaper. His new book is FLOODLINES: Community and Resistance from Katrina to the Jena Six. He can be reached at neworleans@leftturn.org, and more information about Floodlines can be found at floodlines.org. This article was first published at The Root. Find more articles by Jordan Flaherty on The Rag Blog.]

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16 November 2010

Michael Deutsch : Justice Dept. Ups Ante Against Anti-War Activists

Above, Chicago demonstrators protest after September 24, 2010 FBI raids on anti-war activists. Below, supporters in Minneapolis prepare signs for demonstration protesting FBI raids and grand jury subpoenas. Photos from Fight Back! News.

'Material support' for terrorism:
FBI actions, grand jury subpoenas
mark ominous expansion of law


By Michael Deutsch / The Rag Blog / November 16, 2010

In late September the FBI carried out a series of raids of homes and anti-war offices of public activists in Minneapolis and Chicago. Following the raids the Obama Justice Department subpoenaed 14 activists to a grand jury in Chicago and also subpoenaed the files of several anti-war and community organizations.

In carrying out these repressive actions, the Justice department was taking its lead from the Supreme Court’s 6-3 opinion last June in Holder v. the Humanitarian Law Project which decided that non-violent First Amendment speech and advocacy “coordinated with” or “under the direction of” a foreign group listed by the Secretary of State as “terrorist” was a crime.

The search warrants and grand jury subpoenas make it quite clear that the federal prosecutors are intent on accusing public nonviolent political organizers, many affiliated with Freedom Road Socialist Organization (FRSO), of providing “material support,” through their public advocacy, for the Popular Front for the Liberation of Palestine (PFLP) and the Revolutionary Armed Forces of Colombia (FARC).

The Secretary of State has determined that both the PLFP and the FARC “threaten U.S. national security, foreign policy or economic interests,” a finding not reviewable by the Courts, and listed both groups as foreign terrorist organizations (FTO).

In 1996, Congress made it a crime then punishable by 10 years, later increased to 15 years, to anyone in the U.S. who provides “material support or resources to a foreign terrorist organization or attempts or conspires to do so.” The present statute defines “material support or resources” as:
any property, tangible or intangible, or service, including currency or monetary instruments or financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel and transportation except medicine or religious materials.
In the Humanitarian Law Project case, human rights workers wanted to teach members of the Kurdistan PKK, which seeks an independent Kurdish state, and the Liberation Tigers of Tamil Eelam (LTTE), which sought an independent state in Sri Lanka, how to use humanitarian and international law to peacefully resolve disputes, and to obtain relief from the United Nations and other international bodies for human rights abuses by the governments of Turkey and Sri Lanka. Both organizations were designated as FTOs by the Secretary of State in a closed hearing, in which the evidence is heard secretly.

Despite the non-violent, peacemaking goal of this speech and training, the majority of the Supreme Court nonetheless interpreted the law to make such conduct a crime. Finding a whole new exception to the First Amendment, the Court decided that any support, even if it involves nonviolent efforts towards peace, is illegal under the law since it “frees up other resources within the organization that may be put to violent ends,” and also helps lend “legitimacy” to foreign terrorist groups.

Writing for the majority, Chief Justice Roberts, despite the lack of any evidence, further opined that the FTO could use the human rights law to “intimidate, harass or destruct” its adversaries, and that even peace talks themselves could be used as a cover to re-arm for further attacks. Thus, the Court’s opinion criminalizes efforts by independent groups to work for peace if they in any way cooperate or coordinate with designated FTOs.

The Court distinguishes what it refers to as “independent advocacy” which it finds is not prohibited by the statute, from “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization,” which is for the first time found to be a crime under the statute. The exact line as to where independent advocacy becomes impermissible coordination is left open and vague.

Seizing on this overbroad interpretation of “material support,” the U.S. government is now moving against political groups and activists who are clearly exercising fundamental First Amendment rights in vocally opposing the government’s branding of foreign liberation movements as terrorist and supporting their struggles against U.S. backed repressive regimes and illegal occupations.

Under this new definition of “material support,” the recent efforts of President Jimmy Carter to monitor the elections in Lebanon -- which was coordinating with the political parties there including a designated FTO, Hezbollah -- could well be prosecuted as a crime. Similarly, the publication of op-ed articles by FTO spokesmen from Hamas or other designated groups by The New York Times or Washington Post, or the filing by human rights attorneys of amicus briefs arguing against a group’s terrorist designation or the statute itself could also now be prosecuted.

Of course, the first targets of this draconian expansion of the material support law will not be a former president or the establishment media, but members of a Marxist organization and vocal opponents of the governments of Israel and Colombia and the U.S. policies supporting those repressive governments.

President Obama in his foreword to the recent autobiography of Nelson Mandela, Conversations with Myself, wrote that “Mandela’s sacrifice was so great that it called upon people everywhere to do what they could on behalf of human progress. [and] . . . [t]he the first time I became politically active was during my college years, when I joined a campaign on behalf of divestment, and the effort to end apartheid in South Africa.”

At the time of Mr. Obama’s First Amendment advocacy, Mr. Mandela and his organization the African National Congress (ANC) were denounced as terrorist by the U.S. government. The “material support” law, if in effect back then, would have opened Mr. Obama up to potential criminal prosecution.

It is ironic, and the height of hypocrisy, that this same man who speaks with such reverence for Mr. Mandela and recalls his own support for the struggle against apartheid, now allows the Justice Department under his command to criminalize similar First Amendment advocacy against Israeli apartheid and other repressive foreign governments.

Anyone wishing to assist with financial support for the legal expenses of those under attack, can send a tax-deductible check to the National Lawyers Guild Foundation. c/o National Lawyers Guild, 132 Nassau St. Room 922, New York, N.Y. 10038.

[Michael Deutsch is a lawyer with the People's Law Office in Chicago. For the past 40 years he has represented political activists and victims of government repression Among his clients have been the Attica Prisoners in the 1971 uprising, Puerto Rican independence fighters, members of the Black Liberation movement, grand jury resisters, and Palestinians falsely accused of terrorism.]

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21 October 2010

Lamar W. Hankins : Obama Not Legally Bound to Appeal DADT Ruling

A member of the military who was fired because of Don't Ask Don't Tell, at a press conference on Capitol Hill May 3, 2010. Photo from Newscom.

There is no legal reason to appeal
ruling on Don't Ask Don't Tell
Clearly, the President and his Justice department have the discretion, both in law and in practice, to refuse to appeal a decision that agrees with his own policy statements and beliefs.
By Lamar W. Hankins / The Rag Blog / October 21, 2010

In case you were wondering whether the President and the Justice Department are legally or constitutionally obligated to appeal the federal district court ruling that the Don’t Ask Don’t Tell (DADT) Act is unconstitutional, the simple answer is that no appeal is legally necessary. Nevertheless, late this past week an appeal was filed.


The ruling

On September 9, 2010, Federal District Judge Virginia A. Phillips issued a Memorandum Opinion holding DADT unconstitutional. The 85-page opinion in Log Cabin Republicans v. United States, explained that DADT “violates the Fifth and First Amendments” to the Constitution.

Judge Phillips wrote that
Plaintiff has proven that the Act captures within its overreaching grasp such activities as private correspondence between servicemembers and their family members and friends, and conversations between servicemembers about their daily off-duty activities. Plaintiff also has proven that the Act prevents servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge. All of these examples, as well as others contained in the evidence described below, reveal that Plaintiff has met its burden of showing that the Act does not have a "plainly legitimate sweep."
The court relied on testimony and the conclusions of three studies that found that having openly homosexual people serving in the military would not have a negative effect on the performance of the military. The opinion cites the testimony of Dr. Lawrence Korb (a former Assistant Secretary of Defense during the Reagan administration, an official with the Council on Foreign Relations, and a fellow at the Brookings Institute) before Congress in 1993:
According to Dr. Korb, there was no empirical research to support the view that homosexual servicemembers would disrupt unit cohesion, and that such evidence could not be obtained without integrating homosexuals into the military...

Dr. Korb testified concerning the experiences of foreign militaries and domestic law enforcement agencies that had integrated homosexual servicemembers, and stated that their integration had not adversely affected unit cohesion or performance in those entities.

Federal District Judge Virginia A. Phillips.

The court found, based on the testimony of witnesses at trial, that the DADT Act itself negatively impacts unit cohesion and military readiness:
The testimony of former servicemembers provides ample evidence of the Act's effect on the fundamental rights of homosexual members of the United States military. Their testimony also demonstrates that the Act adversely affects the Government's interests in military readiness and unit cohesion.
Other testimony from witnesses in such specialties as national security policy, military sociology, military history, and social psychology, showed that the DADT Act failed to further the Government's interests in military readiness or unit cohesion.

The testimony about the financial cost and loss of critical skills in the military caused by the discharge of homosexuals under the DADT Act also contributed to the judge’s conclusions. Critical skills include “Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counterterrorism; weapons development; and medicine.”

The court wrote, “Far from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest,” with over 5,000 DADT discharges occurring since 2002.

A Pentagon study suggests “that for every person discharged after 10 years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge.” The cost of new recruitment was estimated to be about $95 million over the first ten years that DADT was in force.

Other adverse consequences of the DADT Act included “increased numbers of convicted felons and misdemeanants” brought into the military services “and increased numbers of recruits lacking the required level of education and physical fitness... allowed to enlist because of troop shortages during the years following 2001.”

After 2001, the armed services were compelled “to lower educational and physical fitness entry standards as well as increase the number of ‘moral waivers’ to such an extent that, in (Dr. Korb’s) opinion, it became difficult for the military to carry out its mission.”

Finally, the court pointed to one other circumstance that negates the importance to the military of DADT. Delaying investigations of violations of DADT until a person returns from a combat assignment, a routine occurrence,
directly undermines any contention that the Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct.

If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation. It defies logic that the purposes of the Act could be served by suspending the investigation during overseas deployments, only to discharge a servicemember upon his or her return to a non-combat station.
The court noted that President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 2009: "’Don't Ask, Don't Tell’ doesn't contribute to our national security... preventing patriotic Americans from serving their country weakens our national security... [R]eversing this policy [is] the right thing to do [and] is essential for our national security.”

The court noted that the President stated further on October 10, 2009, "We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford -- for our military's integrity -- to force those willing to do so into careers encumbered and compromised by having to live a lie." Also noted is that Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, opposed the DADT policy because it lacks integrity.

The court concluded from the evidence that the DADT policy failed to significantly further the government’s interests and is not necessary to achieve the government’s goals in maintaining a strong military.

Further, the judge found that the policy violates the First Amendment rights of gay and lesbian service members because the restrictions on speech are broader than is justified by the government’s needs, impede military readiness and unit cohesion, prevent gays and lesbians in the military from joining with others to petition their government for a redress of grievances, and punish servicemembers for engaging in private communications about matters related to their sexual orientation if such communications become known, even against the wishes of the writer.

The holding concluded that the DADT Act violates the substantive due process rights identified by a 2003 U.S. Supreme Court decision, as rights associated with the "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

Lt. Dan Choi, who was dismissed from the U.S. Army for admitting he was gay, speaks during a rally in Beverly Hills, California May 27, 2009. Photo by Mario Anzuoni / Reuters.


To appeal or not to appeal

After the Justice department reviewed the Log Cabin decision, the President had to decide whether it was necessary to appeal the decision. Diane Mazur, a professor of law at the University of Florida College of Law, has laid out in a legal memorandum the basics about executive discretion to decline to appeal laws held to be unconstitutional.

Mazur’s primary areas of research include civil-military relations and military law generally. In her memorandum, she explains that the usual expectation is that the Justice department “will defend federal laws from constitutional challenge.” However, the usual practice is not mandatory: “There are well-recognized, standard exceptions that give the executive branch discretion in deciding whether or not to defend a law in some circumstances, and they would apply in deciding whether to appeal a court ruling finding that (DADT) is unconstitutional.”

The two most relevant exceptions to the general rule about defending a statute held to be unconstitutional occur
when the president believes the law intrudes upon his express constitutional authority, such as the commander-in-chief authority. In those instances, DOJ may decline to defend a law that reaches too broadly and inappropriately restricts, for example, the president’s ability to direct military forces.
The second exception at play in this case occurs “when that defense would involve asking the Supreme Court to disregard or alter one of its constitutional rulings.” Such a ruling is found in the 2003 case noted in Judge Phillips’s opinion, Lawrence v. Texas, in which “the Supreme Court held that the Constitution protects the liberty of all persons, straight and gay, to enter into private, intimate relationships without interference by the government, unless there is sufficient justification for government regulation.”

From left, Petty Officer Autumn Sandeen, Lt. Dan Choi, Cpl. Evelyn Thomas, Capt. Jim Pietrangelo II, Cadet Mara Boyd and Petty Officer Larry Whitt, who handcuffed themselves to the fence outside the White House April 16, 2010, during a protest for gay rights. Photo by Pablo Martinez Monsivais / AP.

In addition to these two exceptions of the common practice of defending laws against holdings finding them unconstitutional, there are numerous examples of a failure to defend such laws in every administration for the last 60 years. In fact, the Justice department did not appeal a similar decision in 2008 because it did not think its legal position would be sufficiently strong.

If the President believes that DADT harms national security, as he has said, it is within his prerogative to refuse to take an action detrimental to national security. He already has the authority, under the terms of 10 United States Code §12305, to issue an executive order suspending DADT in a national emergency, so the need for this law is already limited, providing further justification for allowing Judge Phillips’s opinion to stand.

In less than six weeks, a report is due from the Department of Defense study group on how best to implement an end to the DADT policy. Any appeal of the Log Cabin case would take much longer and likely be a waste of both government and judicial resources.

The Obama Justice department and the President regularly exercise discretion in deciding what federal laws to enforce or ignore. They have done so with the use of medical marijuana in the 15 jurisdictions where it is allowed. President Obama and all of the last five or six presidents have used signing statements to interpret and dismiss sections of laws with which they disagree, exercising discretion to abrogate a law, or a portion thereof, enacted by Congress.

Last June, President Obama refused to follow a new law that required him to work to get the World Bank and the International Monetary Fund to adopt certain policies favored by Congress. When Congress tried to require by statute that State Department officials not attend United Nations meetings led by nations believed to be sponsors of terrorism, the President exercised his discretion to ignore the law.

Clearly, the President and his Justice department have the discretion, both in law and in practice, to refuse to appeal a decision that agrees with his own policy statements and beliefs.

In the same month that a virulent homophobe is running to become governor of New York, that a gay New Jersey college student is bullied into committing suicide, that the views of a small Kansas congregation consumed by hatred for homosexuals has received national attention, and politicians from the Atlantic to the Pacific think bashing gays is good for their election chances, it is a mystery why the President decided to appeal the Log Cabin case.

[Lamar W. Hankins, a former San Marcos city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins.]

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19 December 2009

Supremes : 'Suspected Enemy Combatant' no Longer a 'Person'

Portrait of a non-person. Image from girloftomorrow.

Dred Scott redux:
Enemy combatants denied legal standing
...once again, 144 years after the Civil War, we have established as the law of the land and the policy of the United States government that whole classes of people can be declared 'non-persons' and have their liberty stripped away...
By Chris Floyd / December 19, 2009

While we were all out doing our Christmas shopping, the highest court in the land quietly put the kibosh on a few more of the remaining shards of human liberty.

It happened earlier this week, in a discreet ruling that attracted almost no notice and took little time. In fact, our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence.

Here's how the bad deal went down. After hearing passionate arguments from the Obama Administration, the Supreme Court acquiesced to the president's fervent request and, in a one-line ruling, let stand a lower court decision that declared torture an ordinary, expected consequence of military detention, while introducing a shocking new precedent for all future courts to follow: anyone who is arbitrarily declared a "suspected enemy combatant" by the president or his designated minions is no longer a "person."

They will simply cease to exist as a legal entity. They will have no inherent rights, no human rights, no legal standing whatsoever -- save whatever modicum of process the government arbitrarily deigns to grant them from time to time, with its ever-shifting tribunals and show trials.

This extraordinary ruling occasioned none of those deep-delving "process stories" that glut the pages of the New York Times, where the minutiae of policy-making or political gaming is examined in highly-spun, microscopic detail doled out by self-interested insiders. Obviously, giving government the power to render whole classes of people "unpersons" was not an interesting subject for our media arbiters. It was news that wasn't fit to print. Likewise, the ruling provoked no thundering editorials in the Washington Post, no savvy analysis from the high commentariat -- and needless to say, no outrage whatsoever from all our fierce defenders of individual liberty on the Right.

But William Fisher noticed, and gave this report at Antiwar.com:
In the wake of the U.S. Supreme Court’s refusal Monday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former defense secretary Donald Rumsfeld, the detainees’ lawyers charged Tuesday that the country’s highest court evidently believes that "torture and religious humiliation are permissible tools for a government to use."
[....]
Channeling their predecessors in the George W. Bush administration, Obama Justice Department lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The Obama administration had asked the court not to hear the case. By agreeing, the court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act -- a statute that applies by its terms to all "persons" -- did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.

The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."
The Constitution is clear: no person can be held without due process; no person can be subjected to cruel and unusual punishment. And the U.S. law on torture of any kind is crystal clear: it is forbidden, categorically, even in time of "national emergency." And the instigation of torture is, under U.S. law, a capital crime. No person can be tortured, at any time, for any reason, and there are no immunities whatsoever for torture offered anywhere in the law.

And yet this is what Barack Obama -- who, we are told incessantly, is a super-brilliant Constitutional lawyer -- has been arguing in case after case since becoming president: Torturers are immune from prosecution; those who ordered torture are immune from prosecution. They can't even be sued for, in the specific case under review, subjecting uncharged, indefinitely detained captives to "beatings, sleep deprivation, forced nakedness, extreme hot and cold temperatures, death threats, interrogations at gunpoint, and threatened with unmuzzled dogs."

Again, let's be absolutely clear: Barack Obama has taken the freely chosen, public, formal stand -- in court -- that there is nothing wrong with any of these activities. Nothing to answer for, nothing meriting punishment or even civil penalties. What's more, in championing the lower court ruling, Barack Obama is now on record as believing -- insisting -- that torture is an ordinary, "foreseeable consequence" of military detention of all those who are arbitrarily declared "suspected enemy combatants."

And still further: Barack Obama has now declared, openly, of his own free will, that he does not consider these captives to be "persons." They are, literally, sub-humans. And what makes them sub-humans? The fact that someone in the U.S. government has declared them to be "suspected enemy combatants." (And note: even the mere suspicion of being an "enemy combatant" can strip you of your personhood.)

This is what President Barack Obama believes -- believes so strongly that he has put the full weight of the government behind a relentless series of court actions to preserve, protect and defend these arbitrary powers. (For a glimpse at just a sliver of such cases, go here.)

One co-counsel on the case, Shayana Kadidal of the Center for Constitutional Rights, zeroed in on the noxious quintessence of the position taken by the Court, and by our first African-American president: its chilling resemblance to the notorious Dred Scott ruling of 1857, which upheld the principle of slavery. As Fisher notes:

"Another set of claims are dismissed because Guantanamo detainees are not ‘persons’ within the scope of the Religious Freedom Restoration Act -- an argument that was too close to Dred Scott v. Sanford for one of the judges on the court of appeals to swallow," he added.

The Dred Scott case was a decision by the United States Supreme Court in 1857. It ruled that people of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not protected by the Constitution and could never be citizens of the United States.

And now, once again, 144 years after the Civil War, we have established as the law of the land and the policy of the United States government that whole classes of people can be declared "non-persons" and have their liberty stripped away -- and their torturers and tormentors protected and coddled by authority -- at a moment's notice, with no charges, no defense, no redress, on nothing more than the suspicion that they might be an "enemy combatant," according to the arbitrary definition of the state.

Barack Obama has had the audacity to declare himself the heir and embodiment of the lifework of Martin Luther King. Can this declaration of a whole new principle of universal slavery really be what King was dreaming of? Is this the vision he saw on the other side of the mountain? Or is not the nightmarish inversion of the ideal of a better, more just, more humane world that so many have died for, in so many places, down through the centuries?

Source / Empire Burlesque

Thanks to S.M. Willhelm / The Rag Blog

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17 November 2009

The Terrorist Trials : Proving We're a Nation of Laws

Rooftop snipers, armored vehicles and lock-down zones around the courthouse are part of the security plan during the trial of Khalid Shaikh Mohammed and his cohorts. Photo by Schwartz / Daily News.

Are we a nation of laws?
The trial of Khalid Sheikh Mohammed


By Ted McLaughlin / The Rag Blog / November 17, 2009

The Justice Department has finally decided to do the right thing, and bring Khalid Sheikh Mohammed (alleged 9/11 mastermind) and four of his cohorts to justice in a court of law -- just like any other vicious criminals. They will be tried and hopefully convicted in a New York criminal court, and it's about time -- it should have happened years ago.

This is not anything unique. Terrorists have been tried in our civilian criminal courts many times in the past. Take for example the original Trade Center bombers (who failed to bring the towers down), the case of Timothy McVeigh and his sidekick, and the case of the Puerto Rican terrorists many years ago. They were all tried and convicted in a civilian court of law.

But those cases were before President Bush suspended the rule of law, and decided he could decide who would get a fair trial and who wouldn't. Well, he was not only wrong, but he's no longer president. It looks like the Obama administration believes in the Constitution and the rule of law, and that's a good thing for everyone in America.

But it does point out a difference between the ultra-right wing and other Americans. Most Americans want to live in a free country governed by the Constitution and rule of law, where everyone (no matter how despised) gets a fair trial governed by the law. But the right wing doesn't want that. They would prefer to live in a dictatorship where a leader decides who should have rights and who shouldn't. That's sad.

No one should have the right to deny a fair trial with constitutional rights to anyone else -- not in a truly free country. In America, you don't get to deny rights to anyone just because you don't like them or due to the crime they're accused of committing. By protecting the rights of even the vilest of criminals, we protect those same rights for every single person in this country (and that's what the Founding Fathers wanted).

Senator Patrick Leahy (D-Vermont) says it well, "We have a judicial system that's the envy of the world. I don't think we should run and hide and cower. Let's use our system."

Senator Judd Gregg (R-New Hampshire) voiced opposition, saying we shouldn't give terrorists the rights guaranteed to United States citizens. His stupid statement ignores both American law and American history.

The fairness of our laws and our courts have never been reserved just for American citizens. Foreigners in the United States who violate our laws, have always been granted the same fair trial and constitutional guarantees as American citizens get. In a nation governed by the rule of law, everyone must be treated equally, citizen or not.

I want these terrorists convicted and given harsh sentences as much as anyone. But it must be done in a fair and open trial -- both to protect our system of justice and rights, and to convince the world of our fairness and justice.

A truly free country can do no less.

[Rag Blog contributor Ted McLaughlin also posts at jobsanger.]

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15 November 2009

Cannabis Café : Getting High in Portland

Portland's Cannabis Cafe opened on Friday the 13th of November, 2009. Photo from The Portland Mercury.

Dutch-style pot shop:
Cannabis Café
is medical marijuana salon
...the cafe comes almost a month after the Obama administration told federal attorneys not to prosecute patients who use marijuana for medical reasons or dispensaries in states which have legalized them.
By Dan Cook / November 15, 2009

PORTLAND, Oregon -- The United States' first marijuana cafe opened on Friday, posing an early test of the Obama administration's move to relax policing of medical use of the drug.

[Actually, according to The Oregonian, it's the second marijuana cafe; On Oct. 1, Steve Geiger opened Highway 420, a small lounge at the back of his pipe shop at 6418 S.E. Foster Road in Portland.]

The Cannabis Cafe in Portland, Oregon, is the first to give certified medical marijuana users a place to get hold of the drug and smoke it -- as long as they are out of public view -- despite a federal ban.

"This club represents personal freedom, finally, for our members," said Madeline Martinez, Oregon's executive director of NORML, a group pushing for marijuana legalization.

"Our plans go beyond serving food and marijuana," said Martinez. "We hope to have classes, seminars, even a Cannabis Community College, based here to help people learn about growing and other uses for cannabis."

The cafe -- in a two-story building which formerly housed a speak-easy and adult erotic club Rumpspankers -- is technically a private club, but is open to any Oregon residents who are NORML members and hold an official medical marijuana card.

Members pay $25 per month to use the 100-person capacity cafe. They don't buy marijuana, but get it free over the counter from "budtenders". Open 10 a.m. to 10 p.m., it serves food but has no liquor license.

There are about 21,000 patients registered to use marijuana for medical purposes in Oregon. Doctors have prescribed marijuana for a host of illnesses, including Alzheimer's, diabetes, multiple sclerosis and Tourette's syndrome.

On opening day, reporters invited to the cafe could smell, but were not allowed to see, people smoking marijuana.

"I still run a coffee shop and events venue, just like I did before we converted it to the Cannabis Cafe, but now it will be cannabis-themed," said Eric Solomon, the owner of the cafe, who is looking forward to holding marijuana-themed weddings, film festivals and dances in the second-floor ballroom.

No prosecution

The creation of the cafe comes almost a month after the Obama administration told federal attorneys not to prosecute patients who use marijuana for medical reasons or dispensaries in states which have legalized them.

About a dozen states, including Oregon, followed California's 1996 move to adopt medical marijuana laws, allowing the drug to be cultivated and sold for medical use. A similar number have pending legislation or ballot measures planned.

Pot cafes, known as "coffee shops", are popular in the Dutch city of Amsterdam, where possession of small amounts of marijuana is legal. Portland's Cannabis Cafe is the first of its kind to open in the United States, according to NORML.

Growing, possessing, distributing and smoking marijuana are still illegal under U.S. federal law, which makes no distinction between medical and recreational use.

Federal and local law enforcement agencies did not return phone calls from Reuters on Friday seeking comment on the Portland cafe's operations.

"To have a place that is this open about its activities, where people can come together and smoke -- I say that's pretty amazing." said Tim Pate, a longtime NORML member, at the cafe.

Some locals are hoping it might even be good for business.

"I know some neighbors are pretty negative about this place opening up," said David Bell, who works at a boutique that shares space with the cafe. "But I'm withholding judgment. There's no precedent for it. We don't know what to expect. But it would great if it brought some customers into our store."

[Writing by Bill Rigby; editing by Mohammad Zargham]

Source / Reuters / Yahoo News

NORML's Executive Director Madeline Martinez at Portland's Cannibis Cafe. Photo from The Portland Mercury.
But it was not all cheers outside the grand opening.

"Despite the hype, opening night seemed like kind of a bust," a blogger with Portland Mercury deadpanned. "As I stood at the back of the line talking with Ian, a long-time cardholder who was up for the idea of a sociable 'medicating' environment ('Do you like to sit and drink in your house?' he said. 'It's nice to get out.'), people kept ditching out from the front of the line, shaking their heads. 'Why would I want to smoke with a bunch of people I don't know?' grumbled an old man in a black cowboy hat, striding away. 'Save your money and buy a bag!' shouted a twenty-something dude as he left."
[....]
The new café is something of a test for the Obama administration's policy that it will respect individual states' medical marijuana laws. During his presidential campaign, Obama had promised to stop raids on medical dispensaries that were operating within state law.

"I think the basic concept of using medical marijuana for the same purposes and with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate," the president said.

Laws in California and Colorado, which also allow medical marijuana, do not make provisions for anything other than dispensaries. Oregon has about 21,000 medical marijuana patients.

-- Stephen C. Webster /the raw story

Highway 420 in Portland, which has a small lounge for medical marijuana patients.

Thanks to Mariann Wizard / The Rag Blog

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15 September 2009

Siegelman Case : Holder Carries Water for Bushies

Former Alabama Gov. Don Siegelman, left, and former HealthSouth CEO Richard Scrushy. Image from AP.

Eric Holder’s DOJ supports the prosecution:
No new trial for former Alabama Gov. Don Siegelman
Many progressives have joined in complaining about a thoroughly politicized DOJ. Yet AG Holder proceeds as though there was nothing amiss.
By Sherman DeBrosse / The Rag Blog / September 15, 2009

On September 13, the Eleventh Circuit Court refused to grant former Alabama Governor Don Siegelman (1999-2003) a new trial. The panel sent Siegelman back to the same politically motivated judge who helped railroad the popular Democrat in the first place.

Eric Holder’s Department of Justice refused to look at compelling whistle-blower evidence and worked hard to defeat Siegelman, who was most likely the victim of a successful effort to remove him from political life. The case became intertwined with the plitically-motivated firings of federal prosecutors because it was claimed that Karl Rove was involved in these ugly incidents.

The Siegelman Case illustrates the kind of political prosecution that has become common in the Republican South. These prosecutions hinge on a very vague and short piece of legislation that imposes stiff penalties upon officials accused of providing citizens with “honest services” due to corruption.

Siegelman wanted a state lottery to fund education and accepted two bundled donations of $250,000 each to the Alabama Educational Foundation from Richard Scrushy, CEO of Health South. Siegelman then appointed Scrushy to a state hospital board. Three former governors had appointed this CEO to state boards. The prosecutors were unable to prove corrupt intent when they attempted to prove bribery.

Siegelman’s attorney found potentially exculpatory information in comments made by landfill developer Clayton Lamar (Lanny) Young, but President Judge Mark Fuller would not permit them to introduce the evidence. Two jurors worked together to find evidence on the internet that they could use to persuade other jurors to vote against Siegelman. Some of the arguments they gave their colleagues came from a TV station blog that was critical of Siegelman. When their e-mails were discovered, the judge did nothing about the situation.

The case hinged upon testimony of former chief aide Nick Bailey, who said he negotiated bribes on behalf of the governor. Bailey admitted he was not present when Siegelman appointed Scrushy. The prosecutors had Bailey rehearse his testimony in seventy practice sessions and did not give the defense their interview notes. Bailey received a light sentence in return for his testimony. His employer, Luther “Stan” Pate, said the federal officials got him to testify by threatening to use information he used drugs and by referring to rumors that Bailey and the governor were sexual partners.

Siegelman was sentenced to seven years and four months in June, 2007. President Judge Mark Fuller denied Siegelman the customary 45 days to get his affairs in order and had the former governor carted off to jail in leg irons and handcuffs. The federal marshall only permitted him to use the King James version of the Bible while he was being shunted around from prison to prison before settling in Oakdale, Louisiana.

When prisoner Siegelman took his case to the press, the prosecutors threatened to charge him with obstruction and conspiring to bring the court into public contempt. Fuller threatened to add five to seven years to the sentence. Last spring, Siegelman was released on bond pending an effort to get a new trial.


Governor Siegelman’s problems began in 2002, when he narrowly lost a reelection bid to Republican Bob Riley. Siegelman lost when Baldwin County returns were restated, reducing his total there by 7,000 votes. No Democratic observers were present when this happened, and the state Attorney General Bob Pryor successfully blocked efforts to look into the matter or have a recount there. Siegelman launched a legal challenge that went nowhere.

Before that, Republicans had unsuccessfully sought to jail Siegelman. He had angered Republicans with his efforts to fight casinos, and Jack Abramoff was funding Riley to the tune of $1.3 million in return for shutting down Poach Creek, which drew customers from Abramoff clients out of state. The documents on all were suppressed by Senator John McCain when he was investigating Abramoff.

When Siegelman challenged the election results, these efforts were renewed in earnest. Dana Jill Simpson, an attorney and Republican operative, later testified that she heard William Canary, Riley’s chief advisor, say that he would get “his girls” to work on Siegelman and would enlist the help of his friend Karl Rove. “His girls” was a reference to U.S. Attorney Leura Canary, his wife, and to another U.S. Attorney.

The “girls” soon got busy and when their efforts seemed to flag, the Professional Responsibilities Division of the DOJ prodded them on. The Justice Department rejected an FOIA request for documents relevant to whether she had a conflict of interest in the case. Eventually, Mrs. Canary had to recuse herself, but only after having shaped the case. Though the 93 U.S. Attorneys are supposed to resign with the election of a new president, Mrs. Canary remains at her post today.

Acting U.S. Attorney Louis V. Franklin, who became the lead prosecutor, has had unusual and contradictory things to say about how the decision was made to indict Siegelman. Clearly, Franklin was going out of his way to suggest the matter was of no importance to Washington.

Mr. Canary later testified that he had talked about getting the girls to work against Siegelman. The most recent DOJ filing says he swore under oath that he had not contacted Karl Rove, but none of this appears in his Congressional testimony. After the successful prosecution, Rove threw a party for Steve Feaga, one of the prosecutors, at his Rosemary Beach, Florida home. Feaga is a Reserve Colonel who served in the legal office at Langley AFB. Perhaps he could have had a role in reviewing the fueling contract held by Judge Fuller’s firm.

Simpson also said that she heard in early 2005 that a federal judge was about to be appointed who “hated” Siegelman and was determined to “hang him.” There was a danger then that Siegelman might try to run again for governor. The new federal judge turned out to be Mark Fuller, a former Republican official who believed Siegelman was responsible for having him audited. Fuller had been very active in the 2002 campaign.

Miss Simpson had known Governor Riley since law school. She became disenchanted with politics when she was asked to do research that would essentially frame several Democrats. Since coming forward, she has had some troubling experiences. Her house was accidentally burned to the ground, and she was forced off the road by an Alabama state law enforcement official. Her car was totaled. Before she testified before Congress, a helpful Democrat recommended she hire a lawyer who had worked for the GOP for decades. She declined. Her testimony led Representative Randy Forbes (R-VA.) to demand a Congressional investigation of her.

President Judge Mark Fuller.

Fuller was a very wealthy man, controlling 43.7% of Doss Aviation, which did $300 million worth of business with the Defense Department in the George W. Bush years. That fact alone gave the appearance of bias and should have resulted in Fuller removing himself from the case.

Retired federal district judge U.C. Clemon complained that the prosecutors poisoned the jury pool, engaged in judge shopping, and were guilty of other forms of misconduct. Seventy five former attorneys general from forty states denounced the handling of the Siegelman Case and demanded a retrial. They wrote, in part:
At best, the facts outlined by the Government show that: (1) Governor Siegelman felt that Mr. Scrushy ought to donate more to his favored issue campaign [the state lottery] than Mr. Scrushy donated to the campaign of his competitor; (2) Mr. Scrushy was aware that Governor Siegelman expected at least a $500,000 contribution to the lottery fund; (3) Governor Siegelman was aware that Mr. Scrushy wanted to be reappointed to the CON Board: (4) Governor Siegelman did not think that such an appointment would cause any problems; and (5) Governor Siegelman did, in fact, reappoint Mr. Scrushy to the CON Board.

Completely absent from the Trial Record is any evidence that Governor Siegelman and Mr. Scrushy entered into an explicit agreement whereby Mr. Scrushy's appointment to the CON Board was conditioned upon Mr. Scrushy's making the political contributions in question. Two previous Governors had appointed Scrushy to the same position without incident. [Emphasis added.]
Legal scholar Bruce Fine, a conservative, complained during the G.W. Bush years, “We have a Justice Department that has substantially been turned into a political arm of the White House.” Many progressives have joined in complaining about a thoroughly politicized DOJ. Yet AG Holder proceeds as though there was nothing amiss.

The great majority of Bush’s 93 U.S. Attorneys are still in place. Now Holder backstops the political prosecution of Don Siegelman. It would probably be too much to suggest that President Obama pardon this victim of selective prosecution or at least commute the sentence to time served. The latter course would still serve the GOP by preventing Siegelman from ever seeking elective office.

[For much more information on Republican misdeeds, see Sherm’s The New Republican Coalition : Its Rise and Impact, The Seventies to Present (Publish America). It can be acquired by calling 301-695-1707. On line, go here, or find it at Amazon.com.]

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13 May 2009

Dick Cheney: The Dangerous Legacies Live On


The hidden hand of Dick Cheney
By Juan Cole / May 13, 2009

Out of office, he continues to push his tortured version of reality -- and his vision of an imperial presidency -- and there are signs he is succeeding.

Dick Cheney is out there. He is defending torture, dissing Colin Powell, and genuflecting before radio personality Rush Limbaugh as the high priest of what's left of conservatism. His refusal to go quietly, unlike his much-reviled boss, is risky. He was a laugh line more than once at Saturday's White House Correspondents' Dinner.

But the media's focus on the sheer spectacle of the ex-veep's antics, and on the Republican vs. Democrat feud he's stoking, underestimates the way Cheney's principles still inform many of the country's most crucial policies. Like the creatures in the "Alien" films, Cheney has planted some vicious spores in the bellies of his successors, which threaten to tear them apart as they mature. Can the new administration truly reverse Cheney's transformation of the United States into a 21st century empire, with the president an imperial figure above the law?

The former vice-president is now a more reliable laugh-getter than vote-getter. At the correspondents' dinner, President Obama quipped, "Dick Cheney was supposed to be here, but he's very busy working on his memoirs, tentatively titled 'How to Shoot Friends and Interrogate People.'" Guest comedian Wanda Sykes went further, saying she found Cheney positively terrifying. "He scares me to death. I tell my kids, I say, 'Look, if two cars pull up and one has a stranger and the other car has Dick Cheney, you get in the car with the stranger.'"

This week's news is about the grand old pit bull's struggle to continue to define his own party. Cheney emerged last Friday to warn on a North Dakota radio program that it would be a mistake for the Republican Party to moderate its message. (Does that mean it is now radical?) Then on Sunday Cheney told Bob Schieffer of "Face the Nation" that it was a mistake to stop using waterboarding and other forms of extreme interrogation, and that they did not constitute torture. He also poked fun at Colin Powell, questioning his credentials as a Republican and expressing a preference for the waspish Limbaugh as the party's leader.

But don't dismiss Dick Cheney as a fading punch line, or as tragedy reprised as comedy. While the Obama administration has adopted large numbers of policies that directly contradict Cheney's positions, it would be a mistake to overlook Cheney's continued influence on the executive branch through the precedents set by the Bush administration. Among the former vice-president's most important legacies is increased government secrecy. Obama's Department of Justice continues to rely on an alleged "state secrets" privilege. It has thus tried to block lawsuits by victims who alleged they were kidnapped and tortured by U.S. intelligence even though they were innocent of wrongdoing, on the grounds that such trials would reveal state secrets. The same state secrets doctrine was used by Obama's DOJ in an attempt to block investigations of Bush-Cheney warrantless wiretaps. Likewise, the DOJ has attempted to block lawsuits seeking the release of Bush-era e-mails and to prevent prisoners held at Bagram air base in Afghanistan from appearing before a judge to challenge their imprisonment.

Although the Obama administration is pledged to withdraw from Iraq militarily in a way that Cheney would never have contemplated, it is just as committed as Bush-Cheney to spreading good cheer about the new government in Baghdad. Secretary of State Hillary Clinton called the bombings by Iraqi guerrillas this spring the "last gasp" of "rejectionists," seeming to channel Cheney's allegation in 2005 that we were seeing the "last throes" of the insurgency. Red Washington and blue Washington both want to tell us stories about how Iraq will be OK and is just bedeviled by a few unreasoning malcontents who are on their last legs.
Quantcast

On a trip to Afghanistan in 2004, Cheney told U.S. troops, "Your children and my grandchildren will live in freedom tomorrow because of what you're doing today." He warned them of continuing threats there, however, saying, "Our coalition still has important work to do." He added, "Freedom still has enemies here in Afghanistan. And you are here to make those enemies miserable." Obama has, likewise, tied the establishment of a stable government in Afghanistan to U.S. national security, and pledged to defeat the Taliban and al-Qaida (even though there does not appear to be any significant al-Qaida in Afghanistan anymore). Both Cheney and Obama tend to amalgamate al-Qaida (a small, mainly Arab, international terrorist organization) to the Taliban (a form of Pushtun fundamentalist nationalism with local concerns). Cheney's war in Afghanistan envisaged no end, and neither, apparently, does Obama's.

Many of Cheney's harshest policies were rooted in a conviction that small terrorist groups might well get hold of nuclear weapons or other very dangerous armaments, and that all necessary steps must be taken to forestall that eventuality, even if it has only slight probability of occurring. (Journalist Ron Suskind called this notion the "one percent" doctrine.) The Obama administration just forced the Pakistani military to invade the Malakand region and to displace hundreds of thousands of civilians in the course of shelling and bombing a few thousand Taliban tribesmen. Among its rationales for this massive application of force was that the Taliban had advanced too close to Islamabad, and, apparently too close to that country's nuclear warheads. (In fact, the idea that a small force of rural Taliban could take over the Pakistani government or get access to its closely guarded arsenal is fantastic.)

In the government's commitment to a doctrine of "state secrets" that protect the executive from the scrutiny of other branches of government, in the continued attempt to block lawsuits and release of important documents, and in the shielding of secret programs of torture, unlawful kidnapping and warrantless wiretapping, Obama is preserving policies to which Cheney is deeply committed. In configuring Pushtun fundamentalists in southern Afghanistan and northern Pakistan as a mortal threat to the U.S. and potentially even a nuclear power, the Obama administration is picking up themes from Cheney's old speeches and running with them. Cheney may or may not win his struggle for the soul of the Republican Party. If we are not careful, he will win the struggle for the soul of the country as a whole.

Source / Salon

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10 November 2008

Kahlah al-Marri : Supremes May Hear Major Detention Case

The Supreme court may hear the case of Ali Saleh Kahlah al-Marri who has been detained in a brig in South Carolina for five years. Photo from www.psaonline.

'The Supreme Court is now being asked to consider the legality of Marri's detention, which is one of the broadest and most controversial assertions of executive authority since the Sept. 11, 2001, attacks.'
By Jerry Markon / November 9, 2008

Ali Saleh Kahlah al-Marri was close to going on trial for fraud when prosecutors marched into an Illinois courtroom with a demand. Dismiss the charges, they said, because President Bush had just designated the defendant an enemy combatant.

Marri's attorneys protested, but U.S. Attorney Jan Paul Miller declared that the military had already taken custody of the Qatari national, now deemed an al-Qaeda sleeper agent. "There is no longer a judicial proceeding before this court," he said.

With that, Marri was whisked to a Navy brig in Charleston, S.C., where he has spent more than five years. His case raises a question with vast implications for presidential power and civil liberties: Can the military indefinitely detain, without charge, a U.S. citizen or legal resident seized on U.S. soil?

The Supreme Court is now being asked to consider the legality of Marri's detention, which is one of the broadest and most controversial assertions of executive authority since the Sept. 11, 2001, attacks. Marri's attorneys want the court to overturn an appellate ruling that backed the administration. The final brief is due Monday, and the justices are expected to decide soon whether to take the case.

Bush administration officials argue that the ability to detain Marri -- who they say was planning a wave of post-Sept. 11 attacks -- is vital to protecting the nation during wartime. "Like the al-Qaeda forces that struck America on the morning of September 11," Marri "entered the United States to plan and carry out hostile or war-like acts," they argued in their brief.

Marri's attorneys say such detention power is unconstitutional and dangerous, raising the possibility that the government could one day snatch anyone off the street, even a political opponent, and lock him up without a trial. A prominent group of former judges and Justice Department lawyers, along with retired military officers, filed briefs backing Marri's position. They include Maj. Gen. Antonio M. Taguba, who led the Army's first official investigation into abuses at Abu Ghraib prison in Iraq.

The ruling supporting Bush is "a grave threat to the civil liberties of American citizens," said the brief submitted by people including former attorney general Janet Reno and former federal judge Abner Mikva, a longtime mentor to President-elect Barack Obama.

The case poses an early test of Obama's approach to detainee and terrorism issues. Obama's Justice Department would almost certainly argue before the justices if the court hears the matter, raising the possibility that he could change the government's position.

While Obama has strongly opposed Bush on terrorism, his views on Marri and enemy combatants held inside the United States are unclear. Obama has promised to abolish military commissions underway at Guantanamo Bay, Cuba, and has said accused terrorists should be tried in civilian courts or military courts-martial.

He has also vowed to aggressively fight terrorism. Obama's transition office did not return a telephone call Friday seeking insight into his thinking on the Marri case.

Experts said the new president could seek to charge Marri again in federal court but could also back Bush's position -- and conceivably use broad detention authority if the Supreme Court upholds it. Obama's national security team may persuade Obama "that we have to worry about another attack, and in case of an attack we need this power," said Stephen A. Saltzburg, a George Washington University law professor and former Justice Department official.

Marri, a graduate student in Peoria, Ill., when he was arrested in December 2001, is the last of three designated enemy combatants held since 2001. His case is most similar to that of Jose Padilla, a U.S. citizen originally accused of attempting to explode a radiological "dirty bomb" in the United States, because both were arrested inside the United States.

But Padilla was transferred to civilian custody to face terrorism charges before the Supreme Court could take up the military's power to detain him. The Justice Department is now trying to differentiate between holding Marri, a lawful resident, and U.S. citizens. But legal specialists say citizens and residents have the same due process rights -- a position the Bush administration itself took earlier in Marri's case -- so any high court ruling would apply to both.

In December 2002, Marri was charged in federal court with lying to the FBI and with using a false name and a stolen Social Security number to apply for bank accounts in Macomb, Ill., for a fictitious business. But on June 23, 2003, Bush ordered the attorney general to turn him over to the military.

The government says Marri trained at an al-Qaeda camp and met Osama bin Laden, and officials have said that the FBI came to think he was al-Qaeda's senior operative in the United States. His attorneys acknowledge that the allegations are serious but say they must be proved in a civilian court.

A divided U.S. Court of Appeals for the 4th Circuit ruled in July that the president had the power to detain Marri but that he could contest that detention in court. If the Supreme Court declines the case, lawyers say the government could continue to detain people in the Charleston brig because it lies in the 4th Circuit.

Jonathan Hafetz, an attorney with the American Civil Liberties Union who represents Marri, said his client's detention "is the broadest and most radical assertion of detention power since September 11. That the president can order the military to seize someone from their home, their business, from the streets and lock them up in jail potentially forever, without trial, goes against 230 years of American precedent and the basic idea that this country was founded on."

Bobby Chesney, a national security law specialist at Wake Forest University, said critics are overstating the potential risk because anyone held could file a court challenge. "The claim isn't that the president can detain whoever he wants, it's that he can detain al-Qaeda members," Chesney said. "This notion that the president is asserting some royal prerogative is silly."

[Staff researcher Julie Tate contributed to this report.]

Source / Washington Post

Thanks to truthout / The Rag Blog

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27 September 2008

What Did Bush Tell Gonzales? It Ain't Pretty...

Bush and Gonzales: Who told whom to do what and when? Photo by Joshua Roberts-Pool / Getty Images.
Sources say Alberto Gonzales now claims that President Bush personally directed him to John Ashcroft's hospital room in the infamous wiretap renewal incident—and that in another instance the President asked him to fabricate fictitious notes.
By Murray Waas / September 26, 2008

In March 2004, White House Counsel Alberto Gonzales made a now-famous late-night visit to the hospital room of Attorney General John Ashcroft, seeking to get Ashcroft to sign a certification stating that the Bush administration’s warrantless wiretapping program was legal. According to people familiar with statements recently made by Gonzales to federal investigators, Gonzales is now saying that George Bush personally directed him to make that hospital visit.

The hospital visit is already central to many contemporaneous historical accounts of the Bush presidency. At the time of the visit, Ashcroft had been in intensive care for six days, was heavily medicated, and was recovering from emergency surgery to remove his gall bladder. Deputy Attorney General James B. Comey has said that he believes that Gonzales and White House Chief of Staff Andrew Card, who accompanied Gonzales to Ashcroft’s hospital room, were trying to take advantage of Ashcroft’s grievously ill state—pressing him to sign the certification possibly without even comprehending what he was doing—and in the process authorize a government surveillance program which both Ashcroft and the Justice Department had concluded was of questionable legality.

Gonzales has also told Justice Department investigators that President Bush played a more central and active role than was previously known in devising a strategy to have Congress enable the continuation of the surveillance program when questions about its legality were raised by the Justice Department, as well as devising other ways to circumvent the Justice Department’s legal concerns about the program, according to people who have read Gonzales’s interviews with investigators. The White House declined to comment for this story. An attorney for Gonzales, George J. Terwilliger III, himself a former deputy attorney general, declined to comment as well.

Although this president is famously known for rarely becoming immersed in the details—even on the issues he cares the most about—Gonzales has painted a picture of Bush as being very much involved when it came to his administration’s surveillance program.

In describing Bush as having pressed him to engage in some of the more controversial actions regarding the warrantless surveillance program, Gonzales and his legal team are apparently attempting to lessen his own legal jeopardy. The Justice Department’s inspector general (IG) is investigating whether Gonzales lied to Congress when he was questioned under oath about the surveillance program. And the Justice Department’s Office of Professional Responsibility (OPR) is separately investigating whether Gonzales and other Justice Department attorneys acted within the law in authorizing and overseeing the surveillance program. Neither the IG nor OPR can bring criminal charges, but if, during the course of their own investigations, they believe they have uncovered evidence of a possible crime, they can seek to make a criminal referral to those who can.

In portraying President Bush as directly involved in making some of the more controversial decisions about his administration’s surveillance program, Gonzales may, intentionally or unintentionally, be drawing greater legal scrutiny to the actions of President Bush and other White House officials. And what began as investigations narrowly focused on Gonzales’s conduct could easily morph into broader investigations leading into the White House, and possibly leading to the appointment of a special prosecutor.

Dan Richman, a former federal prosecutor in Manhattan and professor at Columbia Law School, told me that Gonzales appears to be attempting to walk the thin line of taking himself out of harm’s way while at the same time protecting the president, a strategy that very well could work: “I think he is serving his own purposes and the White House’s purposes,” Richman says.

According to Richman, by invoking Bush’s name and authority, Gonzales and his legal team are making it more difficult for investigators to seek a criminal investigation of his actions, or for other investigators to later bring criminal charges against him: “The clearer it is that Gonzales did what he did at the behest of the president of the United States, the safer that he [Gonzales] is legally,” says Richman. At the same time, by saying that he is advising the president, Gonzales also makes it easier for those at the White House to claim executive privilege if they do indeed become embroiled in the probe.

Moreover, according to one senior Justice Department official, Gonzales, his legal team, and the White House also know that Justice’s IG and OPR are unlikely to press senior White House officials, let alone the president, to answer their questions.

But this legal strategy could also backfire.

One scenario feared by the White House is that the IG or OPR could send a public report to Congress concluding that Gonzales or some other official may have committed a crime. At a minimum, that would make the conduct of Gonzales, or of any other official deemed to be under suspicion, the subject of a criminal investigation.

Read all of it here.

Source / The Atlantic

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17 August 2008

Charges Likely Against Blackwater Guards in Shooting of Iraqi Citizens

An Iraqi policeman inspects a car that was destroyed when Blackwater security guards opened fire in Baghdad, killing 17 civilians. Photo by Khalid Mohammed / AP.

'An Iraqi government investigation concluded that the security contractors fired without provocation'
By Del Quentin Wilber and Karen DeYoung / August 17, 2008

Federal prosecutors have sent target letters to six Blackwater Worldwide security guards involved in a September shooting that left 17 Iraqi civilians dead, indicating a high likelihood the Justice Department will seek to indict at least some of the men, according to three sources close to the case.

The guards, all former U.S. military personnel, were working as security contractors for the State Department, assigned to protect U.S. diplomats and other non-military officials in Iraq. The shooting occurred when their convoy arrived at a busy square in central Baghdad and guards tried to stop traffic.

Blackwater has said its personnel acted in self-defense.

The sources said that any charges against the guards would likely be brought under the Military Extraterritorial Jurisdiction Act, which has previously been used to prosecute only the cases referred to the Justice Department by the Defense Department for crimes committed by military personnel and contractors overseas. Legal experts have questioned whether contractors working for the State Department can be prosecuted under its provisions.

The sources cautioned that prosecutors are still weighing evidence gathered in a 10-month investigation that began shortly after the shootings. A federal grand jury has heard testimony from about three dozen witnesses since November, including U.S. and Blackwater officials and Iraqis, according to two of the sources.

Target letters, often considered a prelude to indictment, offer suspects the opportunity to contest evidence brought before the grand jury and give their own version of events. The letters were sent this summer, although the sources, who agreed to discuss the case only on the condition of anonymity because of its sensitivity, said a final decision on whether to indict may not be made until October, about a year after the incident.

The U.S. attorney's office in Washington and the Justice Department's National Security Division are leading the investigation. Channing Phillips, a spokesman for the U.S. attorney's office, declined to comment, as did Justice Department spokesman Dean Boyd. A spokeswoman for the FBI's Washington field office, which investigated the shooting on the ground in Iraq in the weeks after the incident, also declined to comment.

Anne E. Tyrell, a spokeswoman for North Carolina-based Blackwater, said that the company believes the guards fired their weapons "in response to a hostile threat" and is monitoring the investigation closely.

"If it is determined that an individual acted improperly, Blackwater would support holding that person accountable," Tyrell said in a statement. "But at this stage, without being able to review evidence collected in an ongoing investigation, we will not prejudge the actions of any individual. The company is cooperating fully with ongoing investigations and believes that accountability is important."

Earlier reports on the investigation indicated that the FBI had focused on three Blackwater guards among a larger but unknown number present at the time of the Sept. 16 incident in Baghdad's Nisoor Square. None has been publicly identified, and authorities did not say which six received the target letters.

The shooting, and the perceived failure to hold anyone accountable for it, has fueled congressional dissatisfaction with the government's use of private security contractors in a combat zone. Contractors working for the Defense Department are now explicitly liable for crimes under laws covering the military, but several efforts in Congress to extend that jurisdiction to State Department contractors have failed.

The incident also angered Iraqi political leaders. U.S. contractors have been exempt from Iraqi law under a decree imposed by the U.S. occupation administration in 2003.

Seeking to respond to widespread fury among Iraqis over the Nisoor Square incident, the government of Prime Minister Nouri al-Maliki insisted in negotiations over a new bilateral security agreement with the United States that all contractors come under Iraqi legal jurisdiction. Facing pressure to finalize an agreement by the end of the year, the Bush administration agreed to meet the Iraqi demand, according to officials close to the discussions. But the administration continues to insist on immunity from Iraqi law for military and official Defense Department personnel, the officials said.

Blackwater is one of three U.S. security firms under contract with the State Department to provide personal security in Iraq. The State Department in May extended Blackwater's contract for another year, saying that while the case was still under investigation it had no enforceable cause to cancel it.

Lawyers for the Blackwater guards have argued in ongoing discussions with prosecutors that the Military Extraterritorial Jurisdiction Act, known as MEJA, can be applied only to contractors working for the Defense Department, two sources said. That position appeared to be buttressed by the Congressional Budget Office, which said in a report on contractors in Iraq released last week that MEJA "does not apply to civilians working . . . for federal departments or agencies other than DOD [the Department of Defense]."

Legislative proposals to extend MEJA's provisions beyond the Defense Department -- which have been repeatedly opposed by the White House -- have made the same point.

But the question has never been tested in court. Some outside legal experts said that prosecutors would be able to make a compelling argument that MEJA covers Blackwater guards involved in the shooting under a 2005 amendment that expanded MEJA's provisions to include contractors "supporting the mission of the Department of Defense."

"You are dealing with a military environment," said Scott Silliman, a law professor at Duke University who specializes in national security matters. "If the contractors were not there, those State Department folks would be guarded by the military. Prosecutors could argue to the judge that those facts fit within the definition of furthering the [Defense Department] mission in Iraq."

Among other possible complications in potential legal action against the Blackwater contractors are interviews some of the guards gave to officials from the State Department's Bureau of Diplomatic Security immediately after the incident. The interviews were conducted under legal protections against self-incrimination granted to government employees, and the guards were informed that they could not be used by FBI investigators or in a potential prosecution.

Several former prosecutors and defense attorneys said that the government would have a difficult time proving the case even if it overcame the jurisdictional question. They noted the hurdles facing prosecutors in domestic police shooting cases, adding that such cases are exceedingly hard to win.

Trying to convince jurors that guards committed a crime by opening fire in a war zone "makes it an exponentially tougher case to prove" than a bad police shooting, said George Parry, a former federal and state prosecutor in Pennsylvania who handled law enforcement shootings as a prosecutor and defense attorney. Parry does not represent anyone in the Blackwater matter.

The former prosecutors and defense attorneys said defense lawyers would work hard to put jurors inside the war zone and portray the guards as having to make split-second decisions in an environment where insurgents dress like civilians and attacks could occur anywhere, at any moment. Witnesses in such situations also often contradict each other, and evidence gathered in Baghdad may not meet the same forensic standards that jurors are used to seeing in the United States, the lawyers said.

The Nisoor Square incident took place on a Tuesday afternoon. A Blackwater team arrived in several vehicles at the intersection -- accounts differ as to why they were there -- and tried to stop traffic. Shooting erupted, leaving numerous Iraqis dead and wounded. Blackwater officials have said the guards came under fire; investigations by the U.S. military and the Iraqi government -- and initial findings by the FBI -- concluded that no one fired except the contractors.

Source / Washington Post

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