Destruction of CIA Torture Tapes

On NBC-TV's Today Show this morning, one of the CIA agents involved in the interrogation of terror suspects using "enhanced" techniques such as waterboarding that amount to torture indicated that approval of these practices was obtained from the highest levels of the White House each time these abuses took place. Presumably, similar approval was obtained for destruction of the tapes.

Destruction of the tapes may well have constituted obstruction of justice because several courts had previously ordered preservation of any evidence of torture taking place at the hands of the U.S. Government. But that illegality should not obscure the more serious violation of law taking place here with the President's authorization. These were the acts of torture themselves that are absolutely prohibited under both treaty obligations (the Convention Against Torture), and U.S. statutes that make torture a crime under U.S. law.

The White House and Department of Justice memoranda justifying the use of torture techniques for the interrogation of suspected terrorists by "redefining" what the U.S. government considered to meet the definition of torture did not, and could not, alter the fact that U.S. officials, possibly with the specific approval of the President, were engaging in conduct that our own laws deem serious crimes.

- Morton Sklar, Executive Director

Calling for Equality on Human Rights Day

In 1948, with the atrocities of World War II very much in mind, the nations of the world committed themselves to ending torture, prohibiting slavery, and protecting women, children, and minorities. On December 10, 1948, the Universal Declaration of Human Rights became the first international “bill of rights,” announcing the common fundamental belief in human dignity shared by all peoples, cultures, and nations.

Eleanor Roosevelt, the United States delegate, chaired the negotiations. Many who helped her draft the UDHR relied on her vision and on American ideals generally as the guiding lights for guaranteeing future freedoms. But throughout the debates, the legacy of slavery that still pervaded American government and culture undermined the moral authority of what Eleanor Roosevelt had to say. Many delegates from other countries pointed out the hypocrisy of an American telling others how to behave when the United States itself was doing little to stop lynchings and other racially-based violence within its own borders. Some of those other countries even used racism in America to excuse their own human rights abuses.

Today, racial discrimination remains pervasive and destructive in the United States. The U.S. Government recently tried to deny this was the case, painting a picture of harmony in its periodic report to the United Nations Committee to Eliminate All Forms of Racial Discrimination. The denials in that report rang just as false as they did sixty years ago.

In response, Human Rights USA worked with a coalition of US-based civil society groups to document the actual depth and breadth of racism in the United States, and how the U.S. Government has failed to implement the Convention to Eliminate All Forms of Racial Discrimination. On this anniversary, we reiterate the Universal Declaration of Human Rights’ insistence that all people are entitled to the same freedoms, regardless of their race or ethnicity. And we reiterate our own commitment to ensuring that the United States is a leader, not a bad example, of how to protect international human rights.

TH

Celebrating a Year of Unprecedented Success

As the holidays roll in, take a moment to join us in celebrating a year of unprecedented success in litigation on behalf of survivors of torture, slavery, and gender-based violence. Download our Winter 2007 Newsletter (hot off the press today!) and read about our latest work:

• Yahoo! Inc. Settles Historic Human Rights Lawsuit
• Human Rights USA Supports First Prosecution Under Anti-Torture Statute
• Asylum Granted to Albanian Woman Fleeing Forced Prostitution

Join us in ringing in the new year and moving forward:

• Forward our newsletter to your colleagues and friends.
• Buy holiday gifts at our new online store.
• Send a note of support to one of our clients, letting them know that you stand behind them as they fight for their safety, dignity, and rights, or
  
• Make a tax-deductible contribution to Human Rights USA before year’s end.

Human Rights USA Launches Online Store

Human Rights USA recently launched its online store at CafePress.com.

Come check it out and buy holiday gifts for your friends and family. Show your support for human rights in the United States and help us end torture, slavery, and gender-based violence in the United States.

All proceeds benefit Human Rights USA, a 501(c)(3) non-profit organization.

To start shopping, click here.

"A Victory for Freedom"

Blogger, philanthropist, and conservative activist Doug Wilson wrote today on TownHall.com about our recent lawsuit against Yahoo! "Democracy scored a huge victory earlier this month," said Wilson, when "Yahoo Inc., the Internet company made famous by their search engine, settled out of court with two Chinese journalists who sued the company under U.S. human rights laws for providing the Chinese government with identifying information about their Internet use."

Wilson continued, "Human Rights USA is an important organization whose good work expands far beyond the Yahoo case. Refugee women who want to spare their daughters from sexual abuse have earned the right to do so; the work of Human Rights USA directly resulted in the court decision that established that female genital mutilation qualifies as torture. Their work on another case set a precedent that the usual deadline to file asylum claims need not apply to sexual abuse victims with severe traumatic stress, who might hesitate to report such instances out of fear."

For the full blog post, click here.

MB

German Court Asked to Review Decision Not to Investigate Rumsfeld in Torture Case

Today, human rights groups appealed to the Frankfurt High Regional Court in Germany, asking the court to review a German federal prosecutor's decision not to proceed with an investigation into high-ranking U.S. officials' involvement in the abuse and torture of detainees held in Iraq, Afghanistan, and Guantanamo Bay. The request, which names former Defense Secretary Donald Rumsfeld, former Attorney General Alberto Gonzales, former CIA Director George Tenet, and other high-ranking military officers and former government attorneys as the subjects of the investigation, is the second of such requests to be filed in Germany.*

The first complaint was filed in November 2004 by German attorney Wolfgang Kaleck, with the support of U.S. and international human rights groups. A German prosecutor dismissed that request, stating that the nations of the victims and the accused should be given the first opportunity to conduct the criminal prosecutions. However, since that first request was filed, U.S. officials have failed to take any action in investigating the allegations of abuse and torture. Moreover, now that the U.S. Congress has passed the Military Commissions Act, the likelihood that U.S. officials will ever be prosecuted in the United States has become virtually nil.

The MCA, signed into law on October 17, 2006, presents significant legal obstacles to prosecuting U.S. officials in U.S. courts. The MCA narrowly limits the types of conduct for which U.S. officials may be held liable, essentially granting them immunity for particular types of criminal conduct such as acts of torture. In addition, the statute allows defendants to claim, as a defense, that the detention and interrogation tactics they used were "lawful," or that the defendant didn't know that certain types of techniques were unlawful. The Office of Legal Counsel, which advises the Attorney General and the Executive branch on the lawfulness of proposed courses of conduct, has previously stated that certain forms of torture are lawful -- a view that has been widely criticized by legal scholars and the human rights community.

The MCA's broad grant of immunity, particularly for crimes like torture that violate well-recognized human rights standards, disregards the United States' binding obligations under international and domestic law. The United States, as a party to the Convention Against Torture, is bound by the treaty's prohibition against torture. The United States is also obligated under U.S. domestic law not to commit torture. The Foreign Affairs Reform and Restructuring Act of 1998 incorporates article 3 of the CAT, which prohibits countries from transferring individuals to countries where they will more likely than not be tortured. Under U.S. criminal law, the Torture Convention Implementation Act makes it a crime to violate the CAT's anti-torture provisions.

Even though torture is unlawful under domestic and international law, the MCA significantly limits the liability of U.S. officials for their human rights abuses. Furthermore, the U.S. government's unwillingness to enforce these obligations means that injured parties must look to foreign courts to secure justice. Without any guarantee that the United States will enforce its obligations not to torture, we now turn to foreign tribunals to hold perpetrators accountable for committing major human rights abuses.

Human Rights USA supports the German court's review of the prosecutor's decision not to investigate human rights violations committed by U.S. officials. HRUSA has submitted supporting evidence to accompany the petition for review. Among the supporting evidence provided by HRUSA are two complaints filed by HRUSA with the U.S. Department of Justice, seeking an investigation into the CIA's extraordinary rendition program and into the detainee abuse taking place in Iraq, Afghanistan, and Guantanamo Bay, as well as an affidavit by HRUSA's Executive Director, Morton Sklar, detailing the organization's efforts to seek criminal accountability for these major human rights abuses. The fact that HRUSA's requests for investigation went unanswered by the U.S. government only underscores the necessity for the German court's review of this case.

CC

*Under German law, German courts may exercise universal jurisdiction over defendants who are alleged to have committed genocide, crimes against humanity, and war crimes, regardless of the nationality of the parties or the location where the alleged acts took place. However, German law does not obligate federal prosecutors to open an investigation.

Yahoo Settles Internet Human Rights Case

Facing strong Congressional pressure and the threat of court-ordered discovery proceedings, Yahoo agreed to settle the lawsuit filed against it by Human Rights USA on behalf of internet users in China, who were jailed for exercising their free speech rights. This is the second major case in which a U.S. corporation has been held financially accountable, through a settlement agreement, for its involvement in human rights abuses. The other case was Unocal, which involved major human rights abuses by the oil and gas company in its construction of a gas pipeline in Burma.

The Yahoo lawsuit, filed in April, sought to hold the internet company accountable for its complicity in handing over identifying internet user information to Chinese authorities, which was used to arbitrarily arrest and detain two of the plaintiffs in the lawsuit -- well-known Chinese journalist Shi Tao, and pro-democracy advocate Wang Xiaoning. Both men have been subjected to abuse and torture while in prison. It is suspected that many more individuals have been similarly affected by the sharing of internet user information, including journalists and bloggers listed in two recent reports issued by Reporters Without Borders and the Committee to Protect Journalists.

While the details of the settlement agreement remain private according to its terms and the parties' wishes, the issues raised in the course of litigation and in the Congressional hearing indicate some of the key points that were the focus of concern. These include the urgent need to secure, as soon as possible, the release from prison of Wang Xiaoning and Shi Tao; preventing further disclosure of internet user information that could lead to arbitrary arrest and torture; and the need to aid other prisoners who have been jailed as a result of the disclosure of identifying internet user information.

The resolution of the case by settlement agreement is not a perfect solution. Human Rights USA would have preferred that the court make specific findings, on the record, about the unlawful nature of Yahoo's actions, and that the case reach a final judgment that would be legally enforceable by the court. However, the plaintiffs and their families, along with Congress, felt strongly that immediate action was needed to secure the release of the prisoners, particularly given the five years it would take to bring the case to an end, which would have extended beyond the prison sentences that the two plaintiffs are serving.

This settlement agreement highlights the fact that U.S. corporations must pay greater attention to the consequences that their actions have on human rights, and that they will be held accountable for participating in, or aiding and abetting, major human rights abuses.

The agreement should also provide incentive for Congress to adopt the Global Online Freedom Act, a statute which, if passed, would prohibit U.S. internet companies from disclosing identifying internet user information to repressive governments that are likely to use such information to put a clamp on free speech and free press rights. This law would also provide U.S. companies with additional justification for not complying with government requests for this type of information, where compliance would result in the imprisonment or torture of individuals for repressive purposes.

Congress Asks Yahoo to Apologize to HRUSA's Clients

In a hearing on November 6, 2007, Rep. Lantos, Chairman of the House Foreign Affairs Committee, urged Yahoo! CEO Jerry Yang to apologize to Wang Xiaoning and Shi Tao, two of Human Rights USA's clients, for handing over their identifying internet user information to Chinese authorities, which led to their arrest, detention, and abuse and torture while imprisoned. "I do not believe that America's best and brightest companies should be playing integral roles in China's notorious and brutal political repression apparatus," said Lantos.

Gao Qinsheng, Shi Tao's mother, and Yu Ling, Wang Xiaoning's wife, attended the hearing, sitting directly behind Yahoo CEO Jerry Yang and General Counsel Michael Callahan during their testimony. Human Rights USA filed suit against Yahoo in April 2007 for its complicity in handing over Wang's and Shi's identifying information to Chinese authorities. As reported by the New York Times, "Lawmakers demanded to know what Yahoo would do to help Shi's family and reacted with derision when neither Yang nor Callahan provided a concrete answer."

For additional news items on this issue, please see below:

• Los Angeles Times Front Page, Yahoo Taken to Task Over China, November 7, 2007
• ABC News, Congress Blasts Yahoo: Moral 'Pygmies', November 6, 2007
• Ars Technica, Congress unimpressed by Yahoo apology for China dissident e-mail testimony, November 6, 2007
• CNet News (reported live from Congress), Yahoo executives grilled by Congress over China policies, November 6, 2007
• CNet News, Democratic leader to Yahoo CEO: China policy is 'spineless', November 6, 2007
• IT World, Lawmakers rip into Yahoo over testimony on dissident arrest, November 6, 2007
• Techdirt, Congress Not At All Pleased With Yahoo's Explanation in Chinese Dissident Case , November 6, 2007
• The Inquirer, Yahoo "deceived" Congress after helping to convict Chinese dissident , November 6, 2007
• Washington Post, US Lawmakers Criticize Yahoo Officials, November 6, 2007
• Wired, Yahoo General Counsel: We'll Consider Settling Yu Ling Lawsuit, November 6, 2007

Maher Arar Testifies Before Congress

Yesterday, Maher Arar testified before a joint oversight committee of Congress. Arar is a Canadian citizen, a victim of "rendition to torture" carried out by the CIA, and survivor of 11 months of torture in a Syrian prison. The Canadian government has formally apologized for its role in his rendition and offered Arar and his family restitution. Arar's lawsuit against U.S. government officials responsible for his rendition and torture remains pending.

Since 2002, Human Rights USA has stood at the forefront of efforts to end rendition to torture. In November 2003, we were the first group to bring attention to the Maher Arar case in an op-ed written by our Executive Director, Morton Sklar, in the Toronto Globe and Mail. We were also the first – and, to date, only – group to successfully challenge the “rendition to torture” policy in U.S. courts. In Abu Ali v. Ashcroft, our lawsuit compelled the U.S. government to bring U.S. citizen Ahmed Abu Ali back from Saudi Arabia after 20 months of imprisonment and torture conducted there at the behest of the U.S. government. Abu Ali was returned to the United States within just three weeks after the D.C. District Court ordered the U.S. government to reveal the extent of its involvement in his arrest and imprisonment abroad.

Following our success in Abu Ali, Human Rights USA challenged the U.S. government’s use of diplomatic assurances to justify deportation to countries known for torture and other major human rights abuses. Recently, a federal judge held, in our case Khouzam v. Hogan, that “no showing has been made … that removal based upon diplomatic assurances by a country known to have engaged in torture is consistent with the [Convention Against Torture]....” Additionally, the court held that because the U.S. government had not given Khouzam an opportunity to challenge the reliability of diplomatic assurances, and because the government has failed to provide evidence to support its reliance on diplomatic assurances, the court would not bar Khouzam’s due process claims under the political question doctrine. Sameh Khouzam remains in detention in Pennsylvania pursuant to a stay of removal while his case remains pending before the court. Without this stay of removal, Sameh would be deported to Egypt, a country whose penchant for torturing detainees is well documented by the U.S. Department of State.

Human Rights USA secured an injunction against the refoulment (return) of a Guantanamo Bay detainee in the Feghoul case, and we are now building upon these and other successes to challenge the transfer to torture policy as it pertains to GTMO detainees. We are coordinating a collaborative and sustained effort with other law firms, law school clinics, and organizations to address the problems that attorneys are confronted with in securing protections against transfer to torture, including challenging the use of diplomatic assurances as a basis for transfer, the adequacy of the DTA status determination review process, and procedural issues that arise when pursuing DTA and habeas challenges contemporaneously. Human Rights USA continues to serve as a clearinghouse for advocates seeking to prevent rendition through litigation.

Attorney General Alberto Gonzales Resigns

Early this morning, Attorney General Alberto Gonzales announced his resignation.

This time last year, Human Rights USA (in coalition with TASSC) called for the appointment of an independent special prosecutor to investigate Gonzales and other high level U.S. government officials for promoting the use of torture as an interrogation tactic.

In support of this request, we wrote: "Gonzales ... issued a January 25, 2002, memorandum to President Bush urging the Bush administration to declare captives exempt from the protections of the Geneva Conventions in order to pre-empt war crimes charges and justify the denial of rights and more extreme forms of interrogation. This memorandum provided a presumed legal basis for the abuses in Guantanamo and Afghanistan, and, through General Miller's advice and actions, in Iraq. Memorandum from Alberto R. Gonzales, “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban,” January 25, 2002."

For a copy of our Request for Appointment of a Special Prosecutor, click here.

Photo credit: AP/Susan Walsh
MB

U.S. Court Upholds Indictment of Alleged Liberian Torturer Chuckie Taylor, Orders Case to Move Forward

In a victory for torture survivors, the Southern District Court of Florida today upheld the December 2006 indictment against Chuckie Taylor for torture and conspiracy to commit torture. Relying in part on the amicus brief submitted by Human Rights USA on behalf of multiple human rights organizations, the court rejected the defendant’s claims that the criminal prosecution of torturers constitutes a violation of the U.S. Constitution and an improper intrusion on foreign sovereignty. The court denied Taylor’s motion to dismiss and ordered the criminal case against him to move forward.

This decision confirms the long-standing notion that every nation that has ratified the Convention Against Torture – including the United States – is responsible for enacting and enforcing criminal sanctions against torturers, wherever they may be found, and irrespective of where the acts of torture took place.

Chuckie Taylor is the son of former Liberian president Charles Taylor, who is himself currently facing charges of torture, unlawful killings, forced labor, abductions, use of child soldiers, and physical and sexual violence before the Special Court for Sierra Leone. After Charles Taylor, Sr. became President of Liberia in 1997, his son, Chuckie went to work for him as the head of the Liberian Anti-Terrorist Unit (ATU).

The criminal charges filed against Chuckie stem from incidents that took place in 2002, while Chuckie headed the ATU. The specific incidents giving rise to acts of torture include “repeatedly burning the victim's flesh with a hot iron, burning various parts of his body with scalding water, including forcing the victim to hold scalding water in his hands at gunpoint, repeatedly electrically shocking the victim's genitalia and other body parts, and rubbing salt into the victim's wounds.”

This case represents the first time that U.S. prosecutors have sought to hold an individual criminally liable for torture. Taylor was indicted under the Torture Convention Implementation Act (18 U.S.C. §§ 2340-2340A), a 1994 federal statute making it a federal crime to commit, or attempt to commit, torture outside of the United States. Under the TCIA, individuals may be prosecuted if they are either U.S. citizens, or if they are found within the United States, regardless of their nationality. Having been born in the United States, Chuckie’s U.S. citizenship renders him subject to liability under the Act. Taylor was initially captured and detained in Miami in March 2006 for passport fraud.

If found guilty, Chuckie Taylor could be imprisoned for up to 20 years, fined, or both. The maximum sentences allowable under the are a life sentence, or the death penalty when an act of torture results in death.

Nigerian Woman Fleeing Forced Marriage Granted Asylum

I-E-, a young woman who fled Nigeria after her father sold her in marriage to a polygamous village leader, was granted asylum by the San Francisco Asylum Office early this year. Human Rights USA served as co-counsel in the case, and prepared briefs demonstrating her eligibility for asylum.

This substantial legal victory laid a foundation for Human Rights USA's continued efforts over the past calendar year to secure asylum and refugee protection for women and girls fleeing forced marriage and other forms of sexual slavery including sex trafficking. We are involved in forced marriage and trafficking cases pending at all levels of the federal court system, and continue working to identify new test cases on these issues.

Special thanks and congratulations to the attorney-of-record, Miriam Porter, who sought our assistance with this case. Our best wishes go to I-E-, who according to Ms. Porter hopes to work as an advocate for other women facing gender-based violence when she completes her education.

MB/MS

Major lawsuit filed by Human Rights USA against Yahoo! highlights the internet company's complicity in human rights abuses in China

Yahoo! is quickly learning that the cost of doing business in China is not free. Unfortunately, this lesson is already all too familiar to Chinese citizens like Wang Xiaoning who, thanks to the complicity between Yahoo! and the Chinese government, face increasing threats to their rights to free speech and association, not to mention other fundamental human rights such as the right to freedom from torture.

On April 18th, Wang Xiaoning filed suit against Yahoo! Inc. and its subsidiaries for their role in aiding and abetting torture abuses against Chinese journalists and human rights advocates in China. In 2002, Wang was arbitrarily detained and subsequently arrested by Chinese authorities for having written and published articles advocating for democracy and a multiparty system in China. His arrest was made only after Yahoo!’s Chinese subsidiary handed over Wang’s identification to the government. By turning over identifying information of its customers, Yahoo! is enabling acts of torture, forced labor, and arbitrary and prolonged detention to occur. As a result, Wang Xiaoning and others like him now sit in prison for having done nothing more than exercise their free speech rights.

Above, Wang's wife, Yu Ling, holds a copy of the Chinese court's judgment against her husband, which cites Yahoo's complicity in sharing with Chinese authorities Wang's anonymous e-mail information. Wang is now serving a 10-year sentence for having expressed pro-democratic views via his Yahoo! e-mail account and Yahoo! Groups, and has suffered abuse and torture at the hands of Chinese officials during his imprisonment.

The Chinese government, as a condition of allowing foreign internet companies to access its market by hosting internet servers in China, requires that foreign companies agree to turn over identifying information of internet users, block access to certain websites, and prevent internet users from being able to search certain words, like “freedom.” The identification information turned over by internet companies is used by the Chinese government, as it was in Wang Xiaoning’s case, to repress individuals who advocate for democratic reforms and greater human rights protections in China by subjecting them to arbitrary arrest, long-term imprisonment, and torture.

In 2005 – three years after Wang’s arrest – Yahoo! Inc. partnered its Chinese subsidiary, Yahoo! China, with the Chinese internet company Alibaba.com, and granted Alibaba the right to use its brand name. This move represents Yahoo’s attempt to gain access to the up-and-coming internet market in China, while trying to shield itself from liability for violating international human rights standards by distancing itself from China’s operations. Yet Yahoo! retains substantial organizational control over its China subsidiaries. By disregarding the rights of their Chinese customers, Yahoo! only facilitates the Chinese government’s repressive practices.

The American public has become increasingly perturbed by the negative social impact that U.S. enterprise can have on individuals in other countries. Perhaps the most notable example of the public outcry against corporate involvement in human rights abuses is the U.S. House of Representatives hearing in 2006, in which Yahoo! and several other U.S. internet companies were brought before the House to explain their complicity with the Chinese government’s censorship policies. Congressman Tom Lantos likened Yahoo!’s actions to the corporations that contributed to the atrocities of the Holocaust in Nazi Germany.

The lawsuit against Yahoo! and its subsidiaries by Wang Xiaoning and his wife, Yu Ling, underscores the dire need for U.S. corporations to put human rights and international law first in all of their business dealings, especially when operating in countries like China that commit torture and other major human rights abuses on a systemic basis.

With increasing attention being given to the business practices of U.S. companies, this lawsuit ought to convince other U.S. companies to think twice before doing business with the Chinese government, especially when ‘doing business’ means placing people at peril of their lives. U.S. companies would do well to remember that corporate profit does not justify human rights abuses.

Download the complaint here.

Laura Sydell's interview with Yu Ling on NPR is available here.
Bo Hill's interview with Morton Sklar on Radio Australia is available here.

Additional reporting available at:

AP
CBS 5 (Sunnyvale, CA)
The Independent (UK)
Jurist Paper Chase
LA Times
NBC 11 (San Francisco)
NY Times
Reuters
San Francisco Chronicle
Washington Post
Yahoo! News

CC

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.

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.

MS

"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:

• The CIA's illegal rendition to torture program;
• Infringement upon, and censorship of, free speech of anti-Bush protesters;
• Unlawful arrests, indefinite detentions, and disregard of the right to habeas corpus of Guantanamo detainees;
• Illegal spying on Americans by the National Security Agency; and
• Presidential signing statements that are issued, not to aid in interpretation of Congressional legislation, but rather, to override it.

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"?

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.

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.

MS