As we recently discussed, it’s becoming readily apparent that the FBI’s most vaunted counter-terrorism wins are almost all stings for “crimes” they made up all by themselves and then coerced others to join. Even for those that don’t have a problem with this kind of practice in theory, it has to be jarring to learn just how many of these “terrorists” are either suffering serious mental or social illnesses or have had their confessions beaten out of them. By all appearances, it looks pretty clear that the FBI is bumping up their “win” statistics on the backs of these highly questionable stings.
So of course local law enforcement is getting in on the action as well. Take the police in Washington D.C., for instance, who are featured in a Washington Post story detailing how they invent armed robbery plans whole-cloth and then recruit civilians to join up shortly before arresting these future-criminals. Some of the plots the police devised are quite detailed and terrifying, involving robbing liquor stores and targets that are supposedly drug dealers. After discussing the plans with an undercover cop, everyone is then arrested and charged with a variety of “conspiracy to commit” charges. According to some experts, the government is on firm legal ground with regards to entrapment.
The government is on solid legal ground, experts say, when it comes to fending off allegations that suspects were set up — or entrapped — by the police. Even if the government entices the defendant, the target has to show that he was not predisposed to commit the crime.
Sure, and if you’re a defendant in one of these cases, good luck convincing anyone that you didn’t have a predisposition for the crime you were tricked into thinking you were going to commit. Again, it’s easy to opine that these are bad people, but that doesn’t take into account mental illness and pressure applied by undercover officers eager to bolster their arrest statistics. According to reports, that kind of pressure included giving minors alcohol and/or taking them to strip clubs, because nobody has ever made themselves out to be something they’re not when drunk or in the presence of naked members of the opposite sex. The question becomes whether anything like the made up crime would have ever happened had it not been first invented by the police.
“When you have the government offering guns or the getaway car and making it really attractive, you have to ask: Is this an opportunity that would have really come around in real life? Would this person have been able to put together this type of crime without government assistance?” said Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York who has studied undercover policing tactics.
It’s even worse when the police engineer aspects of the made up crimes in the sting in order to manufacture longer sentences for the would-be criminals they ensnare.
Tinto and others also take issue with the government’s ability to essentially engineer tough penalties by controlling the details of the made-up crime. Part of the reason the District cases have been so successful, according to defense lawyers, is that the potential jail time for the federal conspiracy charge is steep enough that many defendants are more inclined to make a deal with prosecutors than risk losing at trial.
The global problem in all of this is the aim: this is all about bolstering crime-fighting statistics rather than responding to any actual crimes or criminals. Will the police likely get some violent criminals off the streets with this tactic? Sure, but so could actual police work and, as I indicated, that isn’t what this is all about. On top of that, the questions raised by the tactic are serious and some of the people caught up in all this probably aren’t benefited most by engineered jail time. Add to all that questions about who the police are generally going to look towards as targets of this kind of sting operation (gasp, minorities), and we should be left wondering why they aren’t fighting the crime that exists rather than making up crime that otherwise wouldn’t.
Imagine entering family court and knowing that what’s at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he’s removing your child from your custody, from your home. When you ask him why, the judge’s replies, “I honestly can’t tell you.” The judge then signs an order giving custody of your son to Social Services.
You might think that such a court proceeding could never happen in the United States – but you’d be wrong.
It happened not long ago to the father of an American Indian child in South Dakota. What’s more, many similar hearings in which Indian children are removed from their homes for no reasons given to the parents occur at least 100 times a year in Rapid City, South Dakota, alone.
Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stop American Indian families from having their children removed by state and local officials for invalid and sometimes even racist reasons. Yet 36 years later, Indian children in South Dakota are 11 times more likely to be removed from their families and placed in foster care than non-Indian children.
The ACLU filed a lawsuit in March 2013 in federal court on behalf of the Oglala Sioux and the Rosebud Sioux tribes in South Dakota and on behalf of a class of all Indian families living in Rapid City, South Dakota, the state’s second largest city. We sued state and local officials who, we contend, repeatedly violate ICWA.
We recently examined 120 transcripts of initial custody hearings – known as “48-hour” hearings – held during the past four years involving Indian children. Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state’s petition for temporary custody of their children in the hearing on the petition.
During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit.
And what were the parents in these hearings “guilty” of? Here is a snapshot of some of the cases discussed in the transcripts:
- A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge’s decision, the mother pleaded with the judge not to punish her for what the abuser had done.
- A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
- A mother lost custody of her daughter merely because the daughter’s babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
- A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father’s custody.
Our lawsuit seeks to stop state judges and social workers from continuing to remove Indian children from their homes unless the parents are provided with basic guarantees of due process of law and rights afforded 36 years ago in ICWA These include the right to a fair and prompt hearing, the right to notice of the charges against them, the right to an attorney, the right to present evidence, and the right to cross-examine the state’s witnesses.
Based on the 120 transcripts, we recently filed motions asking the federal court to rule that South Dakota officials engage in a pattern and practice of denying Indian families and Indian tribes their basic rights to fairness under ICWA and the Constitution. And next month, the UN Committee on the Elimination of Racial Discrimination will consider a report submitted by the ACLU on U.S. failure to meet its international treaty obligations to end pervasive and institutionalized discrimination, including the lack of due process in American Indian child custody proceedings in South Dakota.
Ultimately, we hope to restore justice to a group of people who our legal system has repeatedly failed.
The late Dr. Tony Martin’s diligent research had been provoked by several events with faculty members in the educational institutions where he taught. The tactics they tried using to silence the focus of his lessons only motivated him even more.
A man is taken from his home by 20 armed, militarized police in fascist black uniforms. They break in through the doors and windows, rappel from the roof with ropes, storm the home where he lives with his wife and four children, in the dead of night.
They take him away, and no one hears from him for days, and then weeks, and then months. He isn’t charged with anything; for a long time he is simply disappeared. There is no official charge, but he is a known political activist, a writer, a lecturer.
This isn’t news, because the country is Jordan, the orders come from the US or from Israel, and the man is an Arab, a Palestinian.
I met Amer Jubran 13 years ago when he was living in the United States. He was arrested for the first time at a protest in Brookline, MA that he helped to organize against a yearly celebration of the colonization of Palestine called “Israel Day.” Police arrested him, broke up the demonstration, held him over night in jail with hand and leg shackles, and then charged him with assaulting a passerby. After a lengthy series of court hearings, the judge found the charges to be baseless. Information obtained in the course of the hearings revealed instead that the police had been in the pay of the Israel Day organizers, including the Israeli consulate. The police had been communicating with them about the protest–including details about individual protest organizers–and had more or less acted as agents of a foreign government.
At that time, I knew almost nothing about the history of Palestine. I attended Amer’s trial because the civil rights violations involved in his arrest were so egregious that his case required support from anyone who sincerely believed in basic political rights.
The bulk of Amer’s trial in Brookline took place in the immediate aftermath of September 11, 2001. The US had just declared an open-ended “war against terrorism,” and already news had begun to trickle out about mass detentions of Arab and Muslim men who were being held beyond the reach of any legal authority, detained indefinitely without access to fundamental rights of due process, and stories were starting to come out about the extensive use of torture.
And at the same time the US passed the Patriot Act and reorganized its security apparatus to create a new “Department of Homeland Security.” With it came new types of federal agents with expanded powers over both citizens and non-citizens; federal, state, and local police were increasingly networked with private agencies in JTTFs; ‘fusion centers’ emerged as nodes of uncontrolled ‘information sharing’ about everyone.
Those of us who were politically active at the time could see what was coming. I remember friends circulating a famous quote from Hanna Arendt:
“The first essential step in the road to total domination is to kill the juridical person in man. This was done, on the one hand, by putting certain categories of people outside the protection of the law and forcing at the same time, through the instrument of denationalization, the nontotalitarian world into recognition of lawlessness; it was done, on the other, by placing the concentration camp outside the normal penal system, and by selecting its inmates outside the normal judicial procedure in which a definite crime entails a predictable penalty.” (Origins of Totalitarianism)
We could see what was coming and those of us who cared got involved however we could.
I got to know Amer in the course of his trial and began to learn about Palestine: the expulsion of Palestinians in 1948, the occupation of the remainder of Palestine in 1967, the continuing circumstances of racist oppression and land theft, not only in all of historic Palestine, but in the entire region surrounding it. To be Palestinian in Nazareth, or in Gaza, or in al Quds (also called Jerusalem), or Khalil (“Hebron”), is much the same as to be Palestinian in Amman (Jordan) or in Sabra and Shatila (Lebanon). The refugees fled murder on their land and it sought them out in the camps. To be Palestinian anywhere in historic Palestine is to be subject to arbitrary detention without trial (‘administrative detention’), and it’s the same in Amman or in Cairo.
I visited Khalil for the first time in 2003. What I saw there became for me an image of the entire region. Some 120,000 Palestinians live in the greater area of Khalil–the city and interconnected villages surrounding it. 400 zionist settlers live in a garrison called Kharsina. For their sake, a regime of total lockdown was imposed on all the Palestinians in the city and villages. All village entries and exits were blocked with boulders and other roadblocks. Curfew imposed. Children couldn’t attend school, elders couldn’t reach hospitals, no one could move goods. All this so that 400 settlers can feel ‘secure’ living on stolen land. This is the meaning of ‘security.’
And this is the image of the region. For the sake of less than 6 million highly privileged colonial-settlers, over 150 million Arabs in the surrounding region live under circumstances of political repression, foreign invasion, occupation, and poverty. No freedom of movement, no freedom of expression, no basic political rights. This is what it means when we say ‘for Israel’s security.’
I learned about Palestine and I became active along with Amer and others we knew in trying to speak for the cause of Palestine where we lived in the United States. Together with other Palestinians living in the area, Amer created an organization called the New England Committee to Defend Palestine.
We spoke of the unity of the Palestinian cause, of liberation for all of historic Palestine, for the rights of refugees to return to their homes.
Two days after the first demonstration of the NECDP, FBI and INS agents broke into Amer’s home in Rhode Island and demanded that he answer some questions. “Please the ears of this gentleman,” said the INS agent pointing to the FBI agent, “or you’ll rot in jail for fifty years.” Amer demanded his right to an attorney. They jailed him, at first without charges or access to a lawyer. We obtained a lawyer for Amer, but they refused to give any information to him when he called, and hung up on him. They held him that way for 17 days. It took an international campaign just to get him a bond hearing.
Eventually the INS (which became the ICE) manufactured immigration charges against Amer to justify–and at the same time conceal–the US government’s political persecution. They now claimed that the marriage through which he had obtained his green card had been fraudulent.
For over a year, we fought the case in hearings before the immigration court. The Department of Homeland Security devoted more than 12 FBI agents to “gathering information” on what was ostensibly an immigration matter. Agents visited members of Amer’s ex-wife’s family and tried to intimidate them into testifying against him. In some cases they showed pictures of Amer taken at demonstrations in the US and claimed that they were images from a “terrorist training camp” in Afghanistan. They tried to connect Amer with 9/11, and to suggest that people who didn’t fully cooperate might make themselves liable to prosecution in connection with “terrorism.”
We fought the case in the immigration court for more than a year. In the course of the proceedings, we submitted FOIA petitions that turned up evidence of widespread cooperation between local police and federal agents in monitoring us and other activists for political activities such as demonstrations, educational websites, and court solidarity. These included the following:
*Still photographs of Amer, his friends, witnesses and supporters taken inside the courtroom during his Brookline trial, and sent to the Boston Police
*A fax cover sheet documenting the communication of records between the Brookline Police and the FBI in July, 2003
*More than twelve video tapes made by the Boston police of pro-Palestine, anti-war, and civil liberties/immigrant rights rallies, which all found their way into a file concerning Amer Jubran
*A memo from the FBI refusing to grant the FOIA petition on the grounds that the subject was “under investigation.”
When it became clear that the immigration court was not a venue in which justice could be obtained, Amer took ‘voluntary departure’ and returned to Jordan in 2004.
Amer’s hearings were well attended by activists. The media closely followed his case, and there was considerable outrage that the government would use immigration proceedings to silence political speech.
A decade has passed. In that time, the arrest and prosecution of Arabs and Muslims for ‘terrorism’ based on speech–especially the defense of the rights of their peoples to resist invasion and occupation by the US or Israel–has been normalized in the framework of domestic security. There is openly a 1st Amendment exception for Arabs and Muslims. Torture and extrajudicial killing (assassination) are no longer dirty secrets, but official policy. Habeas corpus died with the Supreme Court decision in the Hamdi case; the body of policies and cases surrounding indefinite detention outside the reach of the law have now been codified in the National Defense Authorization Act of 2012, giving the US military the power to detain anyone without recourse to meaningful judicial oversight.
So that now, when 20 black-clad militarized police arrest a Palestinian in his home in Jordan for criticizing US and Israeli policies in the region–an arrest carried out almost certainly at the behest of the US–it just isn’t news. No journalist is interested in the story; no major media outlet will cover it.
Amer continues to be held in Jordan without charges, but has finally been allowed a visit by family, and his whereabouts are now known. His spirit remains strong.
Jordan recently passed legislation further criminalizing political speech as part of its “anti-terrorism” laws. The new amendments specifically criminalize activities that are harmful to Jordan’s relationship with foreign governments. Even before the passage of the new legislation, Jordan had already tried Mwaffaq Mahadin for “endangering relations with a foreign state” for speaking about Jordan’s security cooperation with the US on Al-Jazeera, so it isn’t hard to imagine how the new legislation will be applied. Over the past year, Amer has been sending out critical information and articles about Israeli, US and Jordanian cooperation in destabilizing Syria.
But at this point, it’s hardly even necessary to invent crimes and pass legislation. Jordan’s General Intelligence Directorate (GID)–the agency responsible for Amer’s arrest– is a black hole, accountable to no one, except possibly its paymaster, the US. One Jordanian lawyer told me, when I asked about the possibility of filing habeas corpus on Amer’s behalf, “There’s no such thing here. Our country is being maintained as a conduit to Guantanamo.”
Amer might sit indefinitely in detention without charges. Or he may be brought up at any time and charged with “terrorism” before the State Security Court, a rubber stamp court for the GID. If so, his lawyer might be told the charges a day or two before the sham trial, which then leads to inevitable conviction–a mere formality.
Only a concerted political campaign that gets widespread international attention can make any difference. It’s up to us to create enough visibility to make that possible.
Noah Cohen is active with the Amer Jubran Defense Campaign (freeamer.wordpress.com) and can be reached through the campaign at defense (at ) amerjubrandefense.org.
Court Conclusively Finds Material Support Not a War Crime
Washington, D.C. – In response to today’s en banc ruling by the D.C. Court of Appeals in Al-Bahlul v. United States, the Center for Constitutional Rights (CCR) issued the following statement:
Today’s Court of Appeals ruling defers resolving important questions — Can conspiracy charges be tried by military commission? Is domestic law relevant to that decision? — to a future case. But the five separate opinions, totaling 150 pages, are entirely clear on one point: all seven judges agreed that material support for terrorism is not a war crime triable by military commission, even for a defendant who forfeited his defenses at trial. That decision mandates that our client David Hicks’s conviction for material support, pending on appeal before the Court of Military Commission Review, be vacated. Today’s ruling is a reminder that a military commission prosecution or conviction can unravel at any time.
The court merely deferred the inevitable by failing to recognize that conspiracy is no more appropriately tried in a military commission than material support. We urge the Supreme Court to review today’s ruling regarding conspiracy and dispense with all fabricated war crimes charges once and for all.
The Center for Constitutional Rights represents Australian David Hicks, convicted of a sole count of material support by a military commission at Guantanamo, whose appeal seeking to have his conviction overturned has been stayed pending today’s D.C. Circuit decision.
The Center for Constitutional Rights has led the legal battle over Guantánamo for more than 12 years – representing clients in two Supreme Court cases and organizing and coordinating hundreds of pro bono lawyers across the country, ensuring that nearly all the men detained at Guantánamo have had the option of legal representation. Among other Guantánamo cases, the Center represents the families of men who died at Guantánamo, and men who have been released and are seeking justice in international courts.
Last month, a military judge dealt a significant blow to U.S. prosecutors’ efforts to suppress torture evidence in the Guantanámo military commissions.
In a ruling in the U.S.S. Cole case, unsealed last week, Judge James Pohl told prosecutors they must hand over CIA black site information to the defense attorneys of Abd al-Rahim Hussayn al-Nashiri. Back in April, Judge Pohl similarly ordered the prosecution to give extensive information to Mr. al-Nashiri’s lawyers about his “4-year odyssey” through the CIA’s rendition and torture program. In the new ruling, Judge Pohl confirmed the core of the earlier order and issued important findings that will reverberate not only in Mr. al-Nashiri’s case but also in the 9/11 case, where one of the five defendants has already asked for similar information.
Judge Pohl found that Mr. al-Nashiri was subjected to “enhanced interrogation techniques” – the government’s euphemism for torture and cruel treatment, such as waterboarding and stress positions. More importantly, he ruled that information about that abuse is relevant and helpful to the defense. In particular, it will be relevant at sentencing because Mr. al-Nashiri faces the death penalty. His lawyers have said they will argue that he cannot be executed because he was tortured by the CIA – an argument that 9/11 defense lawyers will also likely make for their own clients.
Judge Pohl also said that the use of torture techniques will impact whether any statements Mr. al-Nashiri made afterwards are too tainted to be used at trial. Under the military commissions rules, the prosecution must convince the judge that the statements were “voluntarily given” in order to use them. The prosecution has already indicated that it will seek to use statements Mr. al-Nashiri made to the FBI after he arrived at Guantánamo. But with the new ruling, the prosecution will be required to turn over the information the defense says it needs to argue that these statements were tainted by the CIA’s earlier torture and abuse.
Judge Pohl’s order requires the prosecution to give the defense lawyers 10 categories of information, including where Mr. al-Nashiri was held, the conditions in each site, whom he interacted with, and how he was rendered from site to site. What’s not clear is the extent to which the prosecution will seek to provide summaries or other substitutes for some documents or to redact the names of personnel. According to Mr. al-Nashiri’s lawyers, this will be litigated in the coming months. Still, the ruling has definitively established that the information is relevant and helpful to the defense, and any new requests by the prosecution to narrow what it has to turn over will be limited by the ruling.
That’s a sea change, although a long-delayed one on a fundamental fair trial right: access to evidence. Judge Pohl has decided to step down from this case to concentrate on the commission trial of the 9/11 defendants. It’s now up to his successor to ensure this important decision is properly implemented.
What does an 86-year-old art photographer have in common with a young man with a video game habit?
Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.
Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.
James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.
Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”
Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.
These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.
Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.
- Hotels are advised to be on the lookout for guests who “request specific room assignments or locations” or use “payphones for outgoing calls.”
- Rental car companies are instructed that “providing multiple names” on rental paperwork is to be “considered suspicious.”
- Hobby shops should be wary of customers with an “unusual interest” in remote-controlled aircraft and those who pay in cash.
- The general public is cautioned to report “unusual activity,” including “people acting suspiciously” and “people in places where they do not belong.”
If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”
Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny. This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.
In a letter to President Obama, 38 journalism groups criticized his administration for severely limiting access to federal agencies and a general politically-motivated suppression of information despite the president’s pledge of historic transparency.
Led by the Society of Professional Journalists (SPJ), the groups said that efforts by government officials to curb free-flow of news and information to the public has reached a peak during the Obama administration following a similarly stifling culture during prior president George W. Bush’s tenure in the White House.
“Over the past two decades, public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees,” wrote SPJ president David Cuillier. “This trend has been especially pronounced in the federal government. We consider these restrictions a form of censorship — an attempt to control what the public is allowed to see and hear.”
Cuillier added that while agency personnel are kept mostly off limits to journalists, they are ”free [to] speak to others — lobbyists, special-interest representatives, people with money — without these controls and without public oversight.”
The groups said that Obama’s recent lamentations of a growing cynicism of government were peculiar given his administration’s broad efforts to shroud official action and policy maneuvers in secrecy, all of which “undermines public understanding of, and trust in, government,” the letter reads.
“You need look no further than your own administration for a major source of that frustration – politically driven suppression of news and information about federal agencies. We call on you to take a stand to stop the spin and let the sunshine in,” wrote Cuillier.
The administration has previously dismissed similar sentiment from other journalism and watchdog groups, including the White House Correspondents’ Association.
The letter cites examples of alleged information censorship, including officials repeatedly blocking reporters’ requests to talk with specific agency staff, long delays in answering questions that disregard reporters’ deadlines, officials’ proclivity for offering information anonymously or “on background,” and federal agencies completely blackballing of certain journalists who write critically of them.
“In many cases, this is clearly being done to control what information journalists — and the audience they serve — have access to. A survey found 40 percent of public affairs officers admitted they blocked certain reporters because they did not like what they wrote,” the letter stated.
The groups recommended that the president should encourage all federal agencies and their public employees to speak freely with reporters. In addition, they called for an ombudsman to keep track of any suppression efforts.
“Create an ombudsman to monitor and enforce your stated goal of restoring transparency to government and giving the public the unvarnished truth about its workings,” the letter said. “That will go a long way toward dispelling Americans’ frustration and cynicism before it further poisons our democracy.”
In March, journalists at the Associated Press reported that their research indicated that the US government has withheld more information than ever under the authority of President Obama. Their findings were based mainly on how difficult it is to successfully request documents from the White House through the US Freedom of Information Act.
In addition, the Obama administration has been criticized for using the punitive, World War I-era Espionage Act to punish whistleblowers who leak classified government information to journalists, in effect chilling press freedoms.
Dogmatists in the Justice System
Scattered throughout the ranks of U.S. federal prosecutors and judges there have always been men and women who are unwilling to make a distinction between their own biases and the rules of evidence that are designed to keep the system focused on the goal of justice. Such closed-minded individuals, embedded in the system, can find themselves set free to act out their prejudices by special circumstances. One might think back to the “hanging judges” who appeared here and there on the American frontier in the 19th century. Being among the few enforcers of law and order in an otherwise anarchic environment, they indulged their fantasies of playing the wrathful god.
The “War on Terror” has likewise created a special circumstance that has liberated Justice Department dogmatists: Islamophobes, Zionists, neoconservatives and others who fancy themselves on a special mission to protect the nation from evil and conspiratorial forces. And, as with the hanging judges before them, the result has been an enhanced possibility not of justice, but rather of the miscarriage of justice.
The Case of Sami Al-Arian
In the past twenty years one of the most notable victims of doctrinaire judges and prosecutors has been Sami Al-Arian. Al-Arian is the son of Palestinian-refugee parents. He came to the United States in 1975 to attend university and earned his degree in computer systems engineering. Eventually he earned a Ph.D. and obtained a tenure-track position at the University of South Florida.
Not only did Al-Arian become a prominent professor, winning several teaching awards, but he also became a community activist, defending the civil liberties of minority groups, particularly Muslim Americans. During the Clinton administration he was an active campaigner against the Justice Department’s pre-9/11 use of “secret evidence” to hold people in jail indefinitely. He also actively and publicly supported the right of Palestinians to resist Israeli oppression.
At some point in the mid-1990s what may have been a coordinated effort to ruin Dr. Al-Arian developed among neoconservative and Zionist elements. Steven Emerson, a man who has made his living as a faux expert on terrorism and a professional Islamophobe, accused one of Al-Arian’s organizations, the World and Islam Studies Enterprise, of being a “terrorist front.” This accusation proved to be baseless, but it nonetheless led other Islamophobe radicals to focus on Al-Arian. Some of these people resided within the Justice Department and the FBI, and they went on a fishing expedition looking for alleged connections between Al-Arian and a recently designated “terrorist organization” called the Palestine Islamic Jihad (PIJ).
During the 2000 presidential election Al-Arian became a prominent figure in national politics as it played out in Florida. His major concern was the government’s use of secret evidence, and it was George W. Bush who promised to rein in the practice. Therefore Al-Arian backed Bush in the election. His trust in this regard proved horribly misplaced.
On September 26, 2001, Bill O’Reilly invited Al-Arian onto his TV show ostensibly to discuss Arab-American reactions to the 9/11 attacks. It was a trap. O’Reilly immediately asked Al-Arian if he had said “Jihad is our path. Victory to Islam. Death to Israel” at a rally thirteen years before (in 1988). Though Al-Arian tried to explain that it was a reference to his support for Palestinian resistance against apartheid policies in Israel, O’Reilly proclaimed that the CIA should watch Al-Arian from now on. Almost at once Al -Arian started to receive death threats. At this point the University of South Florida placed him on administrative leave. He would eventually be fired by the University.
The O’Reilly interview may have been a public relations booster for the ongoing Justice Department investigation mentioned above. That lasted until September 2003, when Al-Arian and three others were indicted on 25 counts of “racketeering” for the PIJ. The Bush administration’s Attorney General John Ashcroft went on television to extol the indictment as a great blow against terrorism (thus confusing an indictment with a conviction) that was made possible by the extensive powers of the USA PATRIOT Act. Among these powers were those George W. Bush had promised Al-Arian he would rein in.
After a 5-month, 13-day trial Al-Arian was acquitted on 8 counts and the jury deadlocked on the remaining 17. When a juror was interviewed after the trial and asked what was lacking in the government’s case he replied, “evidence.” Nonetheless, the outcome allowed the government to hold Al-Arian pending retrial on those deadlocked counts. The case had a distinctly contrived and corrupt feel to it – the result of Islamophobes turned loose by the events of 9/11 to substitute their own biases for the rules of legal evidence.
In 2006 Dr. Al-Arian was still in prison. His health was deteriorating and the strain on his family (his wife and five children) was great. Given the situation he agreed to a plea bargain agreement whereby he would plead guilty to one count of acting in a fashion that benefited the PIJ. In exchange the other counts would be dismissed by the government. He would be incarcerated for a relatively short period on the guilty count with time already served counting toward this sentence. In order to secure the plea bargain, Al-Arian also had to agreed to be deported upon release.
Once more the government, in this case the judge and the federal prosecutor, proved untrustworthy. Despite the jury verdict, the judge had decided that Sami Al-Arian was a “master manipulator” and “a leader of Palestine Islamic Jihad.” This was exactly what the jury decided the evidence could not substantiate. However, the judge, moved by emotional convictions, had equated statements on the part of Al-Arian showing understanding of acts of Palestinian resistance with actual material support of those actions. In doing so the judge went beyond the rules of evidence and corrupted the system he was sworn to serve. The judge gave Dr. Al-Arian not the minimum recommended in the plea bargain but the maximum of 57 months for the one count to which he pled guilty.
Then began a series of additional prosecutorial steps involving the issuing of repeated subpoenas demanding that Al-Arian testify at grand jury investigations. This was also in defiance of his plea bargain and so he refused. He was held in civil and later criminal contempt which added substantially to his jail time.
So egregious was the behavior of the prosecutors seeking his testimony that another, more objective judge eventually stepped in and halted the government’s efforts to force Sami Al-Arian’s to appear before grand juries. Dr. Al-Arian was also let out of prison and allowed to live under a liberal form of house arrest at his daughter’s home in Virginia. His case was held in a kind of legal limbo until just recently, when on 27 June 2014, prosecutors decided to drop all charges against Al-Arian. One should not think of this as a total victory, for the government still intends to deport Sami Al-Arian.
Sami Al-Arian and his family had to endure eleven years of persecution on the basis of assumptions that were substituted for evidence. In the process the life of an upright man, devoted to teaching, charitable works and the cause of a persecuted people, was ruined. The people who did this to him simultaneously corrupted the justice system the integrity of which they were sworn to uphold.
While Sami Al-Arian was perhaps the most high-profile of these cases, his was not the only one. Four members of the Holy Land Foundation charity were charged with materially aiding Hamas when, in fact, all the foundation did was supply money to charitable Palestinian organizations which had been accredited by Israel. It took two trials, one in 2007 and another 2008, for the U.S. government to eke out a conviction on weak evidence that included the testimony of anonymous Israeli witnesses. The Supreme Court refused to interfere with this prima facie unconstitutional procedure.
At present a Palestinian civil rights activist in Chicago, Rasmea Odeh, is being prosecuted for an alleged immigration fraud for failing to report on her immigration application that forty-five years ago, when she was a child, she was arrested by the Israeli military and briefly held without charge. The same prosecutor who went after the Holy Land Foundation is involved in the prosecution of Odeh.
Times of high tension often result in the lowering of important standards in the application of law. They do so by heightening the fears of the general public, which in turn gives license to bigots embedded in the justice system such as judges and prosecutors who have Islamophobic prejudices, Zionist biases, or neoconservative delusions. All of these motives may come into play in cases such as those mentioned above.
Normally the appeals process should catch and reverse such problematic behavior. However, if the period of public fear is prolonged, the appeals process might also become corrupted by public hysteria and political pressures. It took Sami Al-Arian eleven years to overcome his prosecutorial ordeal and those of the Holy Foundation members and Rasmea Odeh are ongoing.
The last word on this dilemma should go to Sami Al-Arian’s son, Abdullah, who in a recent statement observed,“It’s a sad day when you have to leave America to be free.” Indeed, when dogmatists are in control none of us are really free.
We already wrote about Glenn Greenwald’s big story concerning how the FBI has been spying on prominent Muslim American politicians, lawyers and civil rights activists. If you follow this stuff closely, you may have heard that Greenwald was originally supposed to publish that story last week, but held off at the last minute due to some “new information” from the government. This resulted in some silly and ill-informed conspiracy theories, but in the article Greenwald explains what actually happened:
The Justice Department did not respond to repeated requests for comment on this story, or for clarification about why the five men’s email addresses appear on the list. But in the weeks before the story was published, The Intercept learned that officials from the department were reaching out to Muslim-American leaders across the country to warn them that the piece would contain errors and misrepresentations, even though it had not yet been written.
Prior to publication, current and former government officials who knew about the story in advance also told another news outlet that no FISA warrant had been obtained against Awad during the period cited. When The Intercept delayed publication to investigate further, the NSA and the Office of the Director of National Intelligence refused to confirm or deny the claim, or to address why any of the men’s names appear on the FISA spreadsheet. Prior to 2008, however, FISA required only an authorization from the attorney general—not a court warrant—for surveillance against Americans located overseas. Awad frequently travelled to the Middle East during the timeframe of his surveillance.
The fact that it was out warning people that the story was inaccurate before anything had even been written is… quite telling. Also, the fact that it only seemed to focus on the lack of a FISA warrant (and against one individual) seems like the standard form of the intelligence community choosing their words especially carefully to say one thing, while implying something else entirely. Now that the report has actually come out, the Office of the Director of National Intelligence (ODNI) has issued a statement that is more of the same. You will note, for instance, that it does not deny spying on the five named individuals — only that it doesn’t spy on people because of their political, religious or activist views:
It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights.
Unlike some other nations, the United States does not monitor anyone’s communications in order to suppress criticism or to put people at a disadvantage based on their ethnicity, race, gender, sexual orientation or religion.
Our intelligence agencies help protect America by collecting communications when they have a legitimate foreign intelligence or counterintelligence purpose.
Again, note the specific denial they’re making. They’re not denying they spied on these five individuals. They’re claiming that if they spied on them, it wasn’t because of their religion — though the evidence presented in the Intercept article certainly rules out many other explanations. And, remember, it was just a week ago that it was revealed that the NSA, does, in fact, consider people interested in Tor or open source privacy to be extremists. So, while it may be technically true that these individuals weren’t targeted because of their religion, it does seem fairly clear that the intelligence community has fairly low standards for what it takes to convince themselves that someone may be a threat.
Furthermore, the statement admits that there are cases where it spies on people without approval from the FISA Court, but doesn’t say what those examples are beyond “in an emergency.” That may imply the only cases are in an emergency, but that’s not what the statement actually says:
With limited exceptions (for example, in an emergency), our intelligence agencies must have a court order from the Foreign Intelligence Surveillance Court to target any U.S. citizen or lawful permanent resident for electronic surveillance.
These court orders are issued by an independent federal judge only if probable cause, based on specific facts, are established that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign power.
And, again, as the Intercept report itself notes, prior to 2008, there were different standards in place for people traveling overseas (even Americans) which could explain how some of these individuals were targeted.
The ODNI statement more or less concludes by suggesting that the five people named may have been agents of foreign powers, which is quite a claim:
No U.S. person can be the subject of surveillance based solely on First Amendment activities, such as staging public rallies, organizing campaigns, writing critical essays, or expressing personal beliefs.
On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.
It’s a neat little out. Accused of spying on five Americans who pretty clearly do not appear to be agents of foreign powers, just hint strongly that they really are agents of foreign powers. It’s back to the good old days of McCarthyism.
Amer Jubran Defense Campaign | July 8, 2014
Amer Jubran has now been detained for over 2 months without charge. Until last week, he was being held incommunicado. Because Amer is a political dissident, we are gravely concerned that he may be tried with serious offenses based on his political speech under Jordan’s legal framework. If so, he would be brought before the State Security Court in Jordan soon. The State Security Court is an institution that has been widely criticized by human rights advocates as a tribunal that lacks any real judicial independence from the Mukhabarat (Jordanian Secret Police).
Today, we sent an open letter to the recently elected UN High Commissioner for Human Rights Prince Zeid Ra’ad Zeid Al Hussein of Jordan demanding that he address the atrocious human rights abuses in Jordan, citing Amer’s case.
We are asking all supporters to take action on Wednesday July 9th.
Please take a few minutes to do the following on July 9th:
1) Please forward the open letter to Prince Zeid to all your contacts/lists and post to Facebook;
2) Please write your own letter reiterating the points in the open letter (see below) and e-mail your letter to:
***Prince Zeid Ra’ad Zeid Al Hussein, UN High Commissioner-Elect for Human Rights
***Prime Minister Abdullah Ensour e-mail: email@example.com
***Minister of Interior, Hussein Majali e-mail: firstname.lastname@example.org
***Minister of Justice, Bassam Talhouni e-mail: Feedback@moj.gov.jo
3) Please encourage your contacts to sign the petition to free Amer Jubran if they have not signed it already http://freeamerpetition.wordpress.com/
Amer has always fought for justice. He needs your help now!
Please follow the action steps above on Wed July 9th and let us know if you receive any reply.
Thank you again for your continued support.
July 8, 2014
To UN High Commissioner-Elect for Human Rights, Prince Zeid Ra’ad Zeid Al Hussein:
In light of your recent confirmation as UN High Commissioner for Human Rights, we are writing now to urge you to turn your attention to your own country, the Hashemite Kingdom of Jordan, and its atrocious history of human rights abuses.
The current case of Amer Jubran highlights Jordan’s ongoing contempt for the most basic international standards of civil and political rights. Mr. Jubran, a Jordanian citizen, was arrested at his home on May 5, 2014 by agents of the General Intelligence Directorate (GID) and continues to be detained without charges. For the first seven weeks of his detention, he was held incommunicado, without access to a lawyer or family. The international human rights organization Alkarama recently filed his case with the UN as an instance of arbitrary detention (http://en.alkarama.org/jordan/24-communiqu/1251-jordan-arbitrary-detention-of-human-rights-defender-amer-jubran-since-may-2014 ).
Mr. Jubran is an internationally known activist, speaker, and writer on Palestinian human rights and a critic of US and Israeli policies in the Arab world. All who know him and are familiar with his history recognize his arrest as a politically motivated silencing. We are therefore concerned that the amendments to Jordan’s “anti-terrorism” laws passed on June 1st criminalizing new categories of speech as “terrorism” may be applied in Mr. Jubran’s case. The legislation itself demonstrates the willingness of the Jordanian regime to exploit the label “terrorism” to further limit free speech, especially speech that is critical of the existing system of cooperation between Jordan, Israel and the United States. (See statement from Reporters without Borders: http://en.rsf.org/jordan-king-urged-to-repeal-draconian-16-06-2014,46423.html )
We further call attention to the use of the State Security Court as an instrument for political repression. As a direct extension of the executive branch of government, the State Security Court violates all standards of judicial independence. It is a rubber stamp for arrests and detentions carried out by the GID, which has a well-documented history of arbitrary detention and torture to silence political opposition (http://www.amnesty.org/en/region/jordan/report-2013). The collaboration between the GID and the State Security Court in human rights abuses has been specifically cited by Alkarama: “The methods of torture most commonly employed by GID officers are beatings, beatings with cables, ropes, plastic pipes, whips etc all over the body including the soles of the feet (falaqa), stress positions, sleep deprivation, injections that cause states of extreme anxiety, humiliation, threats of rape against the victim and members of his family, electroshock, prolonged isolation, etc. Abuse is more prevalent in the GID due to its close collaboration with the judges of the State Security Court. Incommunicado detention, which is itself a form of mental torture, is routinely extended for undetermined amounts of time.” (http://www2.ohchr.org/english/bodies/hrc/docs/ngos/Alkarama_Jordan_HRC100_en.pdf)
In your acceptance speech at your confirmation as the UN High Commissioner by the General Assembly in June, you spoke of the commitment to push forward the issue of human rights on the Asian continent. Such a commitment can only be taken seriously if you are willing to begin at home. We ask you to stand behind your words by demanding the release of Amer Jubran from his unjust imprisonment by unaccountable agencies within the state of Jordan, and to use your position to end extensive human rights violations carried out by the GID and the State Security Court.
The Amer Jubran Defense Campaign
National Lawyers Guild, Palestine Subcommittee
Defending Dissent Foundation
cc: Prime Minister Abdullah Ensour (Jordan)
Minister of Interior Hussein Majali (Jordan)
Minister of Justice Bassam Talhouni (Jordan)
UN High Commissioner for Human Rights Navi Pillay
EU Publishers Present Their ‘Vision’ For Copyright: A Permission-Based Internet Where Licensing Is Required For Everything
For too many years, the copyright industries fought hard against the changes being wrought by the rise of the Internet and the epochal shift from analog to digital. Somewhat belatedly, most of those working in these sectors have finally accepted that this is not a passing phase, but a new world that requires new thinking in their businesses, as in many other spheres. A recent attempt to codify that thinking can be found in a publication from the European Publishers Council (EPC). “Copyright Enabled on the Network” (pdf) — subtitled “From vision to reality: Copyright, technology and practical solutions enabling the media & publishing ecosystem” — that is refreshingly honest about the group’s aims:
Since 1991, Members [of the EPC] have worked to review the impact of proposed European legislation on the press, and then express an opinion to legislators, politicians and opinion-formers with a view to influencing the content of final regulations. The objective has always been to encourage good law-making for the media industry.
The new report is part of that, and is equally frank about what lies at the heart of the EPC’s vision — licensing:
A thread which runs through this paper is the proliferation of ‘direct to user’ licensing by publishers and other rights owners. Powered by ubiquitous data standards, to identify works and those who have rights in those works, licensing will continue to innovate exponentially so that eventually the cost of serving a licence is close to zero. The role of technology is to make this process seamless and effective from the user’s perspective, whether that user is the end consumer or another party in the digital content supply chain.
Seamless licensing will be made possible through the roll-out of ubiquitous Digital Rights Statements (DRS) containing information about identity, rights and — you guessed it — licenses:
The key point about a DRS is that once it exists, it can be searched, read and actioned by any other machine connected to the Internet. And once the DRS is indexed by a search engine, through the machine readable IDs contained in the DRS it will always be possible to find the person or entity who owns or administers the rights and the rights associated with it. From there, it will be possible to link to the service from which the rights can be obtained and the content accessed and, if applicable, paid for.
Furthermore, this infrastructure is well suited to a world of ‘mash-ups’ where one work will incorporate parts or elements of other works, because the relevant IDs can identify the whole of a work or granular elements of it.
As that makes clear, the EPS vision includes being able to pin down every single “granular” part of a mash-up, so that the rights can be checked and — of course — licensed. Call it the NSA approach to copyright: total control through total surveillance. The paper helpfully explores how that would work out in various specific situations encountered today. For example, the European publishers want to be able to use licensing to restrict access even to material on the open Internet:
Legal clarification is needed about the relationship between hyperlinks and licence terms on the websites (or other platforms) to which they link. It must be clear that rights owners may by their licence terms to “restrict” access to content on an “open website” to a specific category of “the public” (e.g. users who visit the site directly), whether or not accompanied by technical protection measures.
So licenses would be able to forbid the use of hyperlinks to jump directly to pages, even though the latter were not locked down by DRM. The EPC is also worried about an “overbroad” interpretation of a general right to browse copyright material without needing an explicit license:
Whilst the general proposition that Internet browsing does not require a licence is reasonable, there remains a risk that an overbroad interpretation could mean that activities which ought properly to be licensable (e.g. the consumption of press cuttings) might cease to be so.
To tackle that, the EPC wants (pdf) “a new limited neighbouring right to stop unlicensed use of snippets,” and also, for good measure, “[h]yperlinking to illegal copies to be treated as an infringement.” Given this relentless focus on creating a permission-based Internet, it will come as no surprise that the EPC hates the idea of introducing fair use in Europe:
this is an issue which would require considerable evidence-based research in order to make a reasoned evaluation of the benefits of introducing a fair dealing exception compared with the uncertainty and other risks which would be caused by its introduction.
That call for “considerable evidence-based research” is rather rich, given the complete absence of it for all the recent changes to European copyright law in favor of publishers. Indeed, as Techdirt has frequently discussed, there is plenty of research to support reducing copyright’s term and reach, but when this is brought up, publishers are strangely uninterested in evidence-based policy making, preferring to stick with the dogma-based kind. Naturally, the EPC thinks that instead of fair use, what people really need is more licensing:
Europe would be better positioned to reach a dynamic flexibility for increased uses by providing incentives to small scale licensing, both B2B and B2C, and automated licensing solutions.
Part IV of the report is entitled “Meeting users’ needs in the new media & publishing ecosystem.” That’s a welcome emphasis, since it finally recognizes that the users are not just some passive recipient of what the publishers decide to throw at them. However, the section’s focus is still resolutely on seeking permission for every possible use of copyright material.
For example, one of the areas where publishers are fighting fiercely against granting new copyright exceptions is for text and data mining. The refusal to contemplate anything but licensing as an option led to a group of researchers, SMEs, civil society organizations and open access publishers pulling out of the European Commission’s “Licensing for Europe” fiasco. Here’s what EPC has to say on the matter:
A new exception for text and data mining at EU level carries a huge risk from ‘the law of unintended consequences’. A key theme running through our paper is the enabling role of technology in managing copyright. Given the increasing automation of rights management, the full potential of which we have yet to realise, including in the area of specific permissions, access to and use of content, we urge the European Commission to look at practical solutions first for serving the genuine needs of the research community before legislation.
Scare-mongering about an exception for text and data mining is bad enough, but it gets worse. In this same section, we read the following concerning the copyright needs of users with a disability:
There are undoubted challenges faced by this user group in being able to access digital content although publishers have been investing in voluntary solutions, including via ePub3 and voice-enabled services online.
The report then goes on immediately to mention:
The Marrakech Treaty is a recent exemplar. It provides a legal framework to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.
That gives the impression that the Marrakech Treaty was something that publishers backed strongly as a fair way of helping those with disabilities. In fact, quite the reverse is true. To have that hard-won treaty for the visually impaired presented here as an example of how publishers can be relied on to do the right thing by the public is not just misleading but morally repugnant. It shows that despite some fair words in the rest of the “vision” document, in important ways European publishers are just as selfish and cynical as ever.