Friday, March 30, 2007

Punishment fit for a . . . terrorist?

David Hicks - painted by the Bush administration as a terrorist guilty of conspiracy, attempted murder, and aiding the enemy - was today sentenced to nine months in prison for "material support of terrorism."

A sentence of nine months is a far cry from the original 20 years sought by the prosecution. Such a discrepancy, not only in the length of the prison sentence, but also in the prosecution's dropped charges, demonstrates the increasingly-tenuous grip that the government has over its prosecution of alleged terrorists. That, coupled with the fact that only 10 of the 385 detainees have actually been charged with a crime in the five years they have been detained, only underscores the dubious allegations made by the government.

When the government's smoke and mirrors game is revealed for what it is - political grandstanding, at best - it becomes clear that the administration's old and dry tactic of using inflated rhetoric is losing its oomph.

Thursday, March 29, 2007

Justice and the Rule of Law

The Bush administration's Department of Justice seems to have lost track of one of the key policies of law enforcement agencies in the United States - observance of the rule of law. That capacity is one of several indicators of effective human rights observance that the U.S. Department of State applies to other nations when they publish their annual Country Reports on Human Rights. But we seem to have conveniently forgotten to apply that same standard to ourselves.

In recent months - and years - the prevalance of instances where our Justice Department has failed to live up to traditional rule of law standards has reversed dramatically. The firing of the eight U.S. Attorneys for not pursuing political agendas pressed by the Bush White House is only the latest example. Before that, we saw the politically dictated compromise in the prosecution of Big Tobacco.

The inescapable conclusion is that the Justice Department, under the Bush administration, has become politically compromised, no longer making law enforcement decisions for reasons of justice and accountability, but rather for politically-motivated dictates.

The Justice Department, also, was intimately involved in a lot of rule of law violations associated with trying to fight terrorism. Justice issued legal memos supporting the use of torture, justifying the policy of rendition to torture and the use of secret prisons, and suggesting that the Geneva Conventions should not apply to alleged terrorists. It also urged Congress to elminate habeas corpus for detainees in order to get rid of the numerous lawsuits that had been filed, some of which resulted in Supreme Court decisions in which the administration was rebuked for its policies.

How can we credibly and effectively encourage other nations to observe and respect the rule of law if we do not do so ourselves? If our government is serious about making observance of the rule of law a key indicator of whether the principles of democracy and human rights are being carried out, we have to serve as a better model of how this is to be done.


Wednesday, March 28, 2007

"Mistakes were made": The FBI's Unlawful Privacy Abuses

Recent revelations about significant deficiencies in the FBI's bungling of security investigations of U.S. citizens under the Patriot Act suggests that a great deal more is involved than just isolated instances of negligence resulting in occasional invasions of privacy.

On Tuesday, FBI Director Robert Mueller admitted to the FBI's failure to abide by legal requirements laid out under the Patriot Act regarding the use of national security letters (NSLs) and intelligence surveillance warrants.

Earlier this month, the Department of Justice released two reports - one on the FBI's use of NSLs, and the other on the FBI's obtainment of business records - severely criticizing the FBI's abuse of the law. The NSL report blasted the FBI for failing to report to Congress on its use of NSLs, as it is required to do under the 2005 Patriot Reauthorization Act. Of the 143,000 NSL requests issued between 2003-2005, thousands of NSLs were never reported to Congress.

Interestingly, when Congress imposed this reporting requirement upon the FBI in 2005, the Bush administration staunchly opposed the requirement, citing instead the need to withhold information from Congress that might "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." It appears that Congress' efforts to impose oversight over the FBI were in vain. The executive branch never intended to respect the law, but per its usual course of action, has chosen to dilute the law, in letter and in spirit.

In addition to its failure to fulfill its reporting requirements, the FBI also, according to the report:
  • Requested information exceeding the scope of the agency's authority under the Patriot Act.
  • Issued NSLs that were not tied to any ongoing investigation (under the Patriot Act, the NSLs must be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities").
  • Issued "exigent letters" to telephone companies, rather than NSLs, that were signed by people not authorized to sign NSLs. In other words, the FBI went around the law. When it could not legally issue NSLs, it issued "exigent letters" instead, thereby failing to follow the processes required for obtaining private information about individuals. This resulted in telephone companies handing over information about individuals to the FBI before the proper NSLs and subpoenaes had been approved.

In testimony before the House last week, Inspector General Glenn A. Fine attributed the administration's abuse of the law to "mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight."

But something more than just simple "mistakes" and reporting deficiencies seems to be at work here. What the scope and extent of the abuses suggest is that when legal requirements inconveniently stand in the way of the government's war on terrorism, the current administration chooses not to take the law seriously.

When Bush swore to defend and uphold the Constitution, he could only have meant that he would not let that revered document stand in his way of expanding his powers. Other examples of the administration's irreverence of the law include:

Unfortunately, such blatant disregard for the law permeates the executive branch, seemingly, at all levels. Although FBI Director Mueller and Attorney General Alberto Gonzales (who oversees the FBI) have both expressed disappointment at the agency's failures to abide by the law, they have also indicated that they intend to continue using NSLs, despite their fundamental flaws. Mueller admitted that "mistakes were made," but in the same breath called the NSLs the "bread and butter" of the FBI's investigations, labelling them "absolutely essential" in helping the government to obtain information. What makes the NSLs so valuable to the administration is the fact that they can be, and have been, obtained illegally and without adequate privacy protections. Take away the FBI's ability to obtain information in an unlawful manner, and the FBI's surveillance program will be significantly curtailed, much to the chagrin of some members of this administration.

Given the cavalier "anything goes" mentality held by those responsible for combatting terrorism, tinkering with the language of the law to try to prevent further abuses will not be enough. The Bush Administration's response to all of this is not to address the problems inherent in the secret surveillance program, but rather, to continue engaging in injudicious surveillance and finding new ways to sidestep legal requirements. Indeed, the administration's approach has always been to undermine the rule of law to the point of ineffectuality.

How many more times will we be told that we must concede our fundamental liberties in the name of an undefined "war against terrorism", that the law has once again been ignored, that "mistakes were made"?

Tuesday, March 27, 2007

David Hicks' Guilty Plea Before the Military Commission Tribunal

After declining to enter a plea at an earlier session of his preliminary military commission hearing, Guantanamo Bay detainee David Hicks plead guilty before the nation's first Military Commission on Monday. Hicks' guilty plea should not prevent us from taking a long, hard look at the appropriateness and legality of using the military rather than civilian courts for these prosecutions.

Two critical questions that must be addressed are, first, whether these special military trials meet basic fairness and due process standards, and second, whether the approach taken by military tribunals is desirable even if they can be considered adequate for purposes of due process. The fact that Hicks has admitted his guilt should not be taken as a green light for these military trials to continue.

It must be understood that the special military commissions set up by the Bush Administration to prosecute suspected terrorists are worlds apart from the military trials that normally take place under the Uniform Code of Military Justice (UCMJ). Many of the traditional due process protections provided in typical UCMJ trials are not present in the special military commissions that were created to deal with alleged terrorists. Additionally, the rules of the UCMJ are not binding on, or applicable to, military commissions trials.

Under the Military Commissions Act of 2006:
  • Detainees do not have the right to be represented by counsel of their choosing.
  • Evidence obtained through torture, coercive interrogations, or improper long-term detention is admissible in certain circumstances, as is hearsay evidence.
  • No regular judicial appeal is permitted. The only avenue for judicial review is through the "convening authority", which woud be the Secretary of Defense or his designee, who cannot be characterized as impartial.
  • Detainees are denied the same fundamental due process protections that are provided for defendants in typical military criminal cases and in criminal trials in U.S. courts and international tribunals. For example, detainees do not have the right to prompt notification of the charges issued against them, nor do they have a right to speedy trial before an impartial court, and may be subject to secret trials closed to the public.
  • The applicability of international law in U.S. courts, particularly the Geneva Conventions, is severely constricted.

These deficiencies are nothing new to the Guantanamo detainee trials. On June 29, 2006, the U.S. Supreme Court in Hamdan found these deficiences to be so blatant and unacceptable that it rejected the first set of military commission procedures (established under Military Commission Order No. 1), finding them to be in violation of U.S. military law and in conflict with the requirements of the Geneva Conventions. It was in response to the Court's decision in Hamdan that Congress made changes to the rules for the military commissions, enacting the Military Commissions Act of 2006.

Unfortunately, the new standards do not come close to remedying all of the problems that the Supreme Court identified in Hamdan. For example, the judge in Hicks' hearing threw Hicks' two civilian counsel out of the courtroom, finding that they were "not authorized to participate in the military commission proceedings." Under the MCA, detainees may be represented by civilian and military attorneys, so long as defense counsel meet certain specifications. Civilian attorneys qualify to represent detainees based on regulations prescribed by the Secretary of Defense. However, the Defense Secretary has not yet issued those regulations. One of Hicks' attorneys, Joshua Dratel, refused to sign a form agreeing to be bound by unwritten regulations, thereby signing off on his ethical obligations carte blanche and being subject to a system that makes up the rules as it goes.

Rebecca Snyder, another of Hicks' civilian attorneys, is a military reserve lawyer, but was disqualified from representing Hicks because she had not been called into active duty. She would have to change her reserve status before being permitted to appear before the commission. Such a bold move by the judge effectively constitutes a rejection of Hicks' entire defense team, leaving Hicks with only his military attorney to defend him.

But even if a greater degree of due process was to be provided in the military commissions procedures, the military trial approach cannot be justified. For years, the United States has strenuously objected to the use of military trials as a matter of principle, because of concerns that this process has been misused in so many cases with the aim of producing expedited results and bypassing normal rule of law standards.

Another significant problem is that it is not at all clear that alleged terrorists fall outside of the jurisdiction of the regular criminal courts as "unlawful enemy combatants" in wartime. Technically, under traditional standards of international law, unless the detainees were captured on a battlefield, such as in Iraq or Afghanistan, there is no basis for treating them as "war criminals" subject to military trial as unlawful enemy combatants. They may have committed international crimes - a fact that has yet to be established. But their actions should not be considered war crimes, since the "war on terrorism" is neither an armed conflict between governments, nor an external conflict involving competing national factions, under the terms of the Geneva Conventions.

Whatever the technical legalities or the merits (or demerits) of the military trials may be, the United States should not now be supporting the use of military trials when, with good reason, we have objected to this approach for so long, when other governments bypassed the regular legal profess for the sake of expediency.

Friday, March 16, 2007

Sheikh Muhammad’s Confessions

The “confessions” of Sheikh Muhammad presented before the Combatant Status Review Tribunal at Guantanamo Bay provide valuable insights into possible terrorist threats and thinking, and deserve to be taken seriously on that basis. But there are aspects of the confessions that are very troubling for other reasons that counsel taking them with caution as well.

Statements that result from torture (admitted waterboarding in this case) are never reliable, and should never be accepted as a basis for judgment in any type of judicial proceeding, even the special CSRT procedure established at GITMO to assess the status of suspected terrorists. These due process problems are compounded by the fact that Sheikh Muhammad, along with an undetermined number of other suspected terrorists, was held for many months in a “secret prison” without charges being filed against him, and subject to extreme forms of isolation and interrogation. Torture and arbitrary, indefinite detention would make any statement or confession unusable in a regular US court proceeding. The fact that these practices are being permitted in the context of the CSRT determinations places a major cloud on how the detainees and other suspected terrorists more generally. In the name of fighting the “war against terrorism,” and in order to deal with suspected terrorists expediently, we are allowing ourselves to commit torture and to eliminate some of the most important judicial protections that we associate with the “rule of law.”

The elimination of habeas corpus remedies in the REAL ID Act (for refugees) and in the Military Commissions Act (for terrorist detainees) is another victim of this process, and another indicator of how far our government seems willing to go to restrict basic rights and protections to stop terrorists.

It is important for us to look at these problems with how we are dealing with the terrorist threats, not just at the subjects of the “confessions” themselves. The Department of State has just put out its annual Country Reports on Human Rights assessing compliance by foreign governments, and placing great stress on how these governments observe the basic principles of democracy and the rule of law. How would our own government fare if subjected to the same analysis? The process surrounding how Sheikh Muhammad’s confessions were obtained, including the use of torture and long-term secret imprisonment, and the CSRT process that substitutes ex parte judgments by the military for basic due process rights, suggests this judgment would not be a very positive one.