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Legal Challenges By Civil Rights Organizations a Headache for Obama Aministration
Written by William Fisher
Thursday, 26 March 2009
Human rights lawyers are proving to be a major headache for the new administration of President Barack Obama by stepping up their court challenges on issues of prisoner abuse to test the reality of the president’s pledge to create a “an unprecedented level of openness” in government.
A series of current court challenges illustrates the point.
Five years ago, the American Civil Liberties Union filed a Freedom of Information Act request that the Department of Defense release photos showing prisoner abuse by the U.S. military in Iraq and Afghanistan that the public had never seen. The government refused.
Five years later, in September 2008, a unanimous three-judge panel of the U.S. Circuit Court of Appeals ordered the George W. Bush administration to release the photos. But, as of today, the government has not complied with the court’s order. The only record the government has released to date is a set of media talking points used by the State Department.
In early March, the DOD asked for a hearing by the full appeals court. That request was denied. The government then asked for a 30-day stay of the court’s mandate.
That prompted ACLU lawyers to write to the Defense Department, asking the government to reconsider its position and release the photos in light of President Barack Obama’s executive order. The Defense Department has not yet replied.
Jameel Jaffer, Director of the ACLU’s National Security Project, told Inter Press Service, "The Obama administration's commitment to transparency is commendable. "We want to make sure that this rhetoric becomes reality."
ACLU attorney Amrit Singh, who argued the case in court, added, "The American public has the right to view these images to know what was done in its name.”
“Release of the photos would send a powerful message that the new administration truly intends to break from the unaccountability of the Bush years," she said.
The government refusal to disclose these images is based on its attempt to radically expand the exemptions allowed under the FOIA for withholding records. The government also claimed that the public disclosure of such evidence would generate outrage and would violate U.S. obligations towards detainees under the Geneva Conventions.
However, the appeals court panel rejected the government's attempt to use exemptions to the FOIA as "an all-purpose damper on global controversy" and recognized the "significant public interest in the disclosure of these photographs" in light of government misconduct. The court also recognized that releasing the photographs is likely to prevent "further abuse of prisoners."
Much of what the public knows about U.S. treatment of prisoners has been learned from the more than 100,000 pages of government documents obtained in response to the ACLU's FOIA lawsuit.
Attorney General Eric Holder recently issued comprehensive new FOIA guidelines that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA.
In another case, in 2003, lawyers from the Center for Constitutional Rights, the ACLU, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace, filed a FOIA request to the Departments of Defense, State, Homeland Security, and Justice, as well as the CIA, to immediately process and release all records relating to treatment of prisoners in U.S. custody.
When the government failed to respond, the organizations filed a lawsuit charging that these government agencies illegally withheld records concerning the abuse of detainees in American military custody.
Their complaint noted, "Photographs and videos leaked to the press have established beyond any doubt that detainees held in Iraq have been subjected to humiliating and degrading treatment. The government has conceded that numerous detainees have died in custody; at least sixteen of these deaths have been classified as homicides. There is growing evidence that the abuse of detainees was not aberrational but systemic, that in some cases the abuse amounted to torture and resulted in death, and that senior officials either approved of the abuse or were deliberately indifferent to it."
In 2005, a federal district court judge ordered the government to release 74 photos and three videos. The DOD and the Army appealed the district court’s decision. A year later, the Court of Appeals upheld the lower court’s decision, dismissing the government’s appeal. But the government still has not released the photos and videos.
In other cases, human rights lawyers have filed two court challenges against the Obama administration's treatment of Guantanamo detainees and its future plans for the men, most of whom have been held for years without trial.
One motion was filed on behalf of Chinese Uighur, Huzaifat Parhat. He was among 17 Uighurs ordered released by a U.S. court last June, seven years after their arrest, but who remain in detention at Guantanamo Bay.
Lawyers filed a motion of contempt against Secretary of Defense Robert Gates denouncing his "continued refusal to comply with a final order" by the appeals court to release Parhat, the document said.
The lawyers also demanded that a new court ruling should include "a threat of sanctions" in order to ensure Gates complies with the order to release Parhat.
Yet another lawsuit filed by about 15 Guantanamo inmates took issue with new rules laid down by the administration of President Obama earlier this month justifying the state's right to hold terror suspects.
On March 13, the Justice Department said it was dropping the "enemy combatant" designation for terror suspects and vowed to apply international law to its detention policies. It said only those who "substantially supported" the Al-Qaeda network, Taliban Islamic militants or "associated forces" would be held under such laws.
But the detainees' lawyers minimized the new policy as only a "partial retreat" from the positions held under the previous administration of former president Bush.
"The conceptual approach they now advance has not greatly changed," they argued in the court filing.
They also lashed out at the government for justifying detaining suspects without charge or trial solely on the basis of a congressional decision authorizing the U.S.-led "war on terror" after the September 11, 2001 attacks.
The political decision to hold suspects indefinitely without charge because they are deemed too dangerous to be free is a policy choice that under the US Constitution "must be resolved by Congress, not by the executive branch," they wrote.
In a fourth case, lawyers for 30 Guantanamo detainees filed a motion accusing the Obama administration of violating the Geneva Conventions in its treatment of the estimated 240 prisoners remaining at the controversial prison camp.
Obama has vowed to close the camp within the next 12 months, and has ordered individual reviews of the cases against each of the remaining prisoners.
Civil libertarians are perplexed by some of the early actions the Obama administration has taken in court. In two recent cases, lawyers for the Obama Justice Department have invoked the same “state secrets” defense used by President Bush’s administration.
They are also disappointed by the lack of media interest in issues of prisoner detention and treatment. Based on questions asked of President Obama during many interviews and during his two recent press conferences, the mainstream press appears to have little interest in these issues. So these questions are likely to be resolved in the courtroom.
Since the terrorist attacks of 9/111, the judicial branch has rebuffed many of the policies and practices of the Bush Administration. But with a large proportion of Bush appointees now sitting as federal judges, how their future decisions will impact the Obama Administration remains unclear.
Last Updated on Thursday, 26 March 2009
The following from Bill of Rights Defense Committee (this form is easy to copy, paste and send to others - minus hyper-links)
Dissent Is Patriotic
The Bill of Rights Defense Committee's e-mail newsletter
Month 2009, Vol. 8, No. 3
If you receive emails in plain text, note that the online version of our newsletter contains live links. To view the newsletter on BORDC's website please go to www.bordc.org/newsletter/bordcnews8-3.php.
In this issue:
Legislators Propose PATRIOT Act Extensions--Start Organizing Now!
People's Campaign for the Constitution News: Hold the Department of Homeland Security Accountable
Law & Policy: Uncovering Constitutional Violations: Opinions on a Truth Commission; Leaked Red Cross Report Calls Detainee Treatment Torture
Grassroots News: Silver Springs, MD -- National Organizations Call on MD Legislature to Stop Police Spying; Tacoma, WA -- Innovative Tactics Help BORDC-Tacoma Expose Detention Center Abuses
New Resources: Congress in the Classroom - An Opportunity for Educators
BORDC News: Summer Internship with BORDC
Please support BORDC's work to defend the Bill of Rights! Contribute funds or stock online or mail a check or money order to:
Bill of Rights Defense Committee
8 Bridge Street, Suite A
Northampton, MA 01060
Legislators Propose PATRIOT Act Extensions--Start Organizing Now!
On March 12, 2009, Representative Lamar Smith (R-TX) introduced the Safe and Secure America Act of 2009. The bill, which already has 17 cosponsors, would extend several USA PATRIOT Act provisions set to expire on December 31, 2009, for another ten years-until December 31, 2019. The American Civil Liberties Union summarizes here the applicable provisions as follows [emphasis added]:
Section 215 known as the "library records" provision, but which actually applies to "any tangible thing") which does not require any individualized suspicion to get a court order for any record wanted in intelligence investigations;
Section 206 (known as "John Doe" roving wiretaps in intelligence investigations, which allow multiple phones to be tapped) which does not require law enforcement to ascertain that a suspected foreign terrorist is using the phones being listened to by government agents;
The lone wolf provision (added by the 2004 intelligence bill) which applies the Foreign Intelligence Surveillance Act's secret surveillance powers to non-US citizens in this country but without requiring that they be acting for a foreign power and without sufficient safeguards.
Just this week, FBI Director Robert Mueller, who served under Bush as well as Obama, told the Senate Judiciary Committee that he supports the reauthorization of Sections 215 and 206.
Although the sunsets of these PATRIOT Act provisions are still more than eight months away, the fight over whether they will be extended or allowed to expire has already begun. In our last sunset fight over PATRIOT Act in 2006, despite the coordinated efforts of BORDC and other national and local organizations, many of the PATRIOT Act's most egregious violations of civil liberties-including those that would be extended by the Safe and Secure America Act-were reauthorized. We can't let it happen again.
If we are to prevent the renewal or extension of PATRIOT Act provisions that undermine our civil liberties and deny us our constitutionally guaranteed protections, we must start organizing now. Our opposition has already begun to fight, and so must we.
Join the People's Campaign for the Constitution today and start working with a coalition in your community. If a coalition hasn't already started in your community, help build one. Meet with your senators and representatives-their district work period April 6-17 is a great opportunity-and tell them that you, their constituents, will hold them accountable for protecting and defending the Constitution, as they swore to do in their oaths of office. Use local media, letters to the editor, and public forums to call on your members of Congress to block any effort to extend PATRIOT Act provisions that harm civil liberties. Get started now.
We at BORDC are here to support your local efforts in any way we can. Read about upcoming conference calls and other organizing opportunities, or contact Emma Roderick, our grassroots campaign coordinator, for additional information, assistance, and advice.
People's Campaign for the Constitution News
Hold the Department of Homeland Security Accountable
Since its inception, the Department of Homeland Security (DHS) has been characterized by disrespect for human rights and a lack of due process for detainees. We've seen some progress since Obama took office, but not enough. BORDC and the People's Campaign for the Constitution are joining with the Detention Watch Network and the Rights Working Group in their National Week of Action to Hold DHS Accountable this April 8-15. Working together, we can restore the constitutional values of due process and human rights. Read our latest PCC blog post for more information about how to organize an event in your community for the National Week of Action.
Get Involved in the People's Campaign for the Constitution!
Join PCC Members for a Conference Call - Interested in organizing a local coalition but don't know where to start? Want to host a house party in support of the People's Campaign for the Constitution? Have local organizing experience that you'd like to share? PCC Members are invited to take part in a conference call Monday, April 6, at 9 p.m. EST. Connect with other activists and plan your next moves. To RSVP/get information about the call, email Emma.
Help Start an Affinity Group - The PCC isn't just for local coalitions-we're forming affinity groups for students, educators, clergy, attorneys, librarians, doctors, and people fluent in languages other than English. These groups will use their commonality to rally supporters and call for change. To be involved in an affinity group, email Emma and put the group you're interested in joining in the subject. Want to start an affinity group other than the ones listed above? Just email Emma and she'll help you get started.
Share Your News - We want to publish your PCC experiences-successes, challenges, new ideas-in our newsletter and on our PCC blog. If you have something to share, email Emma!
Not a PCC Member? What Are You Waiting For? - Visit the People's Campaign for the Constitution website and join today! Emma will contact you shortly after you sign up to help you get started.
Law & Policy
Uncovering Constitutional Violations: Opinions on a Truth Commission
Last month, Senator Patrick Leahy (D-VT) announced that, as the chair of the Senate Judiciary Committee, he wanted to convene a "truth commission" to investigate the national security policies and executive powers of the Bush administration. Specifically, Leahy wants to establish such a commission to investigate allegations of torture and policies on interrogation and surveillance, but the commission would not seek to prosecute government officials.
After more than seven years of constitutional violations and civil liberties abuses in the name of national security and the so-called "war on terror," America needs to know the truth about its government's actions. In fact, a February poll "found that 62 percent of Americans favor a criminal investigation or an independent panel to look into the use of torture, illegal wiretapping, and other alleged abuses of power by the Bush administration." However, people across the political spectrum disagree about whether and how to go about uncovering abuses and no single opinion prevails as to the best way to move forward.
Leahy's truth commission proposal has many backers. BORDC Advisory Board member, Georgetown University law professor, and author David Cole wrote, in a blog post for The New York Times,
As a legal matter, we are compelled to investigate by the Convention Against Torture, a binding treaty, that requires its signatories to investigate and refer for possible prosecution credible evidence of torture under their jurisdiction.…
Some complain that a truth commission is not enough-and that crimes require criminal prosecutions.… At this point, it is too early to conclude that prosecution is either required or ruled out. But it is too late to deny that a serious independent investigation is necessary.
In that same New York Times post, American University law professor Kenneth Anderson argued that "evoking the idea of a 'truth commission' is needlessly inflammatory," and that Congress's calling for such a commission "underrates the authority already in the Constitution to investigate and prohibit illegal actions by any branch of government."
Others have made their own suggestions. House Judiciary Committee Chairman John Conyers has called for a bipartisan Blue Ribbon Commission on war powers and civil liberties that would have subpoena powers and a broader mandate than Leahy's proposed "truth commission." The American Civil Liberties Union, on the other hand, has called for the establishment of a Select Committee to work alongside Senator Leahy's truth commission, "believing that the combination of both committees would be an effective format for congressional review of Bush administration policies."
Some, including Michael Ratner, president of the Center for Constitutional Rights, have advocated for a special prosecutor to be assigned to investigate torture allegations: "A criminal investigation and prosecution of the torture conspirators is a necessity, not a choice.… Unless government officials know that consequences follow from such abuses, they will break the law again."
Still others have said that investigating allegations against the Bush administration is a bad idea. A USA Today editorial argued that any investigation would be polarizing and take focus away from more important national issues such as the economy and the wars in Iraq and Afghanistan. In response to questions about how he wishes to address allegations against the Bush administration, President Obama has said that he is "more interested in looking forward than I am in looking backwards."
Deciding whether and how to go about investigating torture, warrantless surveillance, and other constitutional and human rights violations perpetrated under claims of national security cannot wait. To know the truth, we must investigate while documents exist and memories are clear. Opinions abound, and there are many reasonable positions. However, one thing is certain: America has the right to know the truth about acts done in its name. Now, it is time for America to decide just how to go about finding that truth.
Leaked Red Cross Report Calls Detainee Treatment Torture
In the April 9 edition of the New York Review of Books, journalism professor and author Mark Danner published excerpts of a confidential report, issued by the International Committee of the Red Cross (ICRC), on U.S. interrogation practices. The documents, which were leaked to Danner, contain interviews with detainees regarding their treatment at CIA "black sites" and describe the behavior of the interrogators as "torture." Though accounts of detainee mistreatment have been previously reported, Danner explained the significance of this particular report to the Washington Post: "It could not be more important that the ICRC explicitly uses the words 'torture' and 'cruel and degrading.'…The ICRC is the guardian of the Geneva Conventions, and when it uses those words, they have the force of law."
The testimony of the 14 detainees held first at CIA black sites and then at Guantánamo is highly credible because, as each prisoner was held in isolation, none had the chance to corroborate his story with another. Danner does not make clear exactly why he chose to publish the report, which was intended to remain confidential, but more on his point of view, as well as small excerpts from the report, can be found in his recent New York Times op-ed.
National Organizations Call on MD Legislature to Stop Police Spying
Silver Spring, MD--All eyes are on Maryland as this month, BORDC joins more than twenty national organizations (including the American-Arab Anti-Discrimination Committee, DownsizeDC.org, the National Organization for Women, and United for Peace and Justice) in signing the Defending Dissent Foundation's Open Letter to the Maryland General Assembly, urging them to pass the Freedom of Association and Assembly Protection Act (HB182/SB256). The letter stresses the importance this legislation has on our entire country: if Maryland can pass strong anti-spying legislation, it will set a precedent for change at the federal level.
The legislation is largely a response to unconstitutional actions of the Maryland Police Department, who spent more than a year infiltrating activist groups and spying on hundreds of activists in "preparation" for an event at which protests were expected. See the January and February 2009 issues of this newsletter for previous stories on police spying in Maryland
Innovative Tactics Help BORDC-Tacoma Expose Detention Center Abuses
Tacoma, WA--BORDC-Tacoma will have to wait at least until a June 26 hearing to find out whether city officials may release Northwest Detention Center (NDC) building plans and related documents promised last month. This document dispute is the latest chapter in BORDC-Tacoma's five-year watchdog relationship with the federal immigration prison owned and operated by The GEO Group, Inc., a Florida-based, for-profit corporation that manages prisons throughout the United States and the world. The Tacoma facility was built on a former toxic waste dump near coastal wetlands, and BORDC-Tacoma has tirelessly investigated and made public not only environmental concerns with the site, but also the toxic and inhumane treatment of those incarcerated there.
See the January and February 2009 issues of this newsletter for previous stories on BORDC-Tacoma's work to prevent expansion of the facility, and on surveillance of the activists by local police.
CorpWatch reports that, in spite of persistent allegations of prisoner abuse at NDC and other prisons operated by GEO Group across the county, as well as riots by the prisoners themselves, "[d]etaining immigrants has become a profitable business" with "no signs of slowing down." Writing for CorpWatch, Erin Rosa notes further that "GEO reported impressive quarterly earnings of $20 million on February 12, 2009, along with an annual income of $61 million for 2008-up from $38 million the year before."
BORDC-Tacoma keeps tabs on GEO and the NDC through creative use of the Tacoma "Adopt-a-Spot" program: they have adopted the street on which the detention facility is located and relentlessly collect litter along the site, some of which has proved extremely informative and revealing. Watch this KING5 News video for an overview of these quintessential grassroots tactics.
Want your group's actions included in our next newsletter?
Send information about your actions and events to Emma, our grassroots campaign coordinator!
Congress in the Classroom: An Opportunity for Educators
BORDC strongly encourages educators to make current constitutional issues a part of their curriculum, from grade school through university. We are pleased to pass along the following opportunity for educators interested in expanding and improving the way they teach about Congress and the Constitution.
Congress in the Classroom is a national, award-winning education program now in its 17th year. Developed and sponsored by The Dirksen Congressional Center, the workshop is dedicated to the exchange of ideas and information on teaching about Congress.
…Congress in the Classroom [is designed] for high school or middle school teachers who teach U.S. history, government, civics, political science, or social studies. Forty teachers will be selected in 2009 to take part in the program. All online applications must be received by no later than April 15, 2009. We will notify individuals of our decisions by April 30, 2009.
along the following opportunity for educators interested in expanding and improving the way they teach about Congress and the Constitution.
…[T]he 2009 program will focus on two themes: (1) developments in the 111th Congress, and (2) new resources for teaching about Congress. The workshop consists of two types of sessions: those that focus on recent research and scholarship about Congress (and don't always have an immediate application in the classroom) and those geared to specific ways to teach students about the federal legislature.
For more information and the online application, visit the Congress in the Classroom website. Also check out BORDC's resources for educators. And if you're interested in connecting with a network of educators working on these issues, contact Emma to join the educators affinity group.
Summer Internship with BORDC
The Bill of Rights Defense Committee is currently seeking applicants for our 2009 summer internship. The intern selected will work in our Northampton, MA, office to assist and advance the Bill of Rights defense movement. See the internship job description for information on how to apply.
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