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Removing Gonzales Will Not Remove Systemic Problems

By Aziz Huq – 03/12/07

*Cross-posted from The Huffington Post

After the summary defenestration of Donald Rumsfeld and the slow martyrdom of Scooter Libby, the New York Times' call yesterday for the President to fire his Attorney General, Alberto Gonzales, no longer seems unrealistic. Yet the firing of one person, no matter now misguided or sub par their performance as the leader of a critical federal institution might have been, will not solve the deep institutional problems that are becoming increasingly evident in our national security policy.

Calls for Gonzales' exit stem from two seemingly separate scandals, the politicization of U.S. Attorneys, tasked with making independent prosecutorial decisions for federal law violations, and from the FBI's misuse of national security letters, or NSLs. The latter, as Geoffrey Stone explains here are a sort of subpoena that allows the FBI to secure documents from businesses without judicial warrants. Not only has the number of NSLs skyrocketed, their misuse has also gone underreported.

These two stories are, in fact, symptoms of a common problem. Eighty years ago, President Franklin Delano Roosevelt marshaled a group of progressive reformers to establish new federal agencies to confront the Great Depression. FDR's reformers understood the importance of professionalized, empirically-based solutions to the nation's pressing problems. Thus, in addition to tackling the nation's financial woes, they tried, with some success, to create new institutions that would provide expert, non-ideological solutions to real problems.

Now, the FBI was not always the model of disinterested professionalism. It was, after all, J. Edgar Hoover, who led the bugging of Dr. Martin Luther King, Jr., and the efforts to destroy his name and precipitate his suicide. This was just the tip of a larger iceberg of abuses. But the Bureau, and other security agencies, was eventually reined in by Congress at the end of the 1970s, as Fritz Schwarz and I have explained. Many success controls and oversight mechanisms were set in place.

More so than at any other time, we have seen during this Administration a concreted effort to demolish these mechanisms for the FBI and its larger institutional home, the Department of Justice.

For starters, the machinery of justice has been politicized. The civil rights division of the department of justice, for example, has been shanghaied into endorsement of dubious redistricting in Texas and a voter id law in Georgia. Anecdotally, one hears that hiring in the Justice Department is no longer done by career lawyers, as it was from the Ford to the Clinton years. Now it is the responsibility of political appointees.

At the same time that professional standards are under assault, oversight has been evaded or gutted. It is not only the use of NSLs that has not gone reported. Both Congress and the public are still in the dark about a gamut of national security measures that directly impinge on our civil liberties.

Take, for example, the NSA's warrantless surveillance program. Earlier this year, the Government announced that it had got that approved by the FISA Court, a body of judges that is supposed to screen all intelligence search warrants. That sounds comforting, until you realize that the surveillance protocols endorsed by the generally conservative FISA panels may be just as sweeping and open-ended as the past secret programs. Or until you learn that the Administration has insisted that only a handful of members of Congress will be briefed in a limited form that effectively disables legislative oversight.

Another example of worrying non-disclosure concerns a 2002 law, introduced by Senator Patrick Leahy, that requires the Attorney General to disclose any times when the President decides a law is unconstitutional, and thus should be ignored. From the President's own signing statements, and from internal Justice Department memos, we know that the President invokes this power with dangerous regularity, claiming prerogatives far beyond those the Constitution gives him. And yet the Attorney General has never filed a report with Congress on the number of times the executive has declined to comply with federal law.

Combine the assault on professionalism with the refusal of oversight, and you get a dangerous vacuum: decisions about investigation and prosecution are no longer made on the basis of objective criteria. They are used to leverage partisan gain (as decisions about the Texas redistricting and the Georgia id law certainly seemed to be). Or they will be made for even narrower, selfish purposes.

The result is a set of policies that leaves us less safe as well as less free. Concrete proof of this came a couple of weeks ago in another report by the Justice Department's Inspector General (who was also responsible for the revelations about the NSLs). This report concerns the Justice Department's prosecution and reporting of terrorism cases within the United States, and makes disturbing reading. It turns out that various components of the Justice Department have "decentralized and haphazard" ways of reporting terrorism cases. In presenting their records to Congress and the American public, investigators and prosecutors have been systemically overreporting both the number of terrorism cases in the United States, and their successes in these cases.

They do this by treating any prosecution that comes from an investigation vaguely linked with "terrorism" as being a "success" in the War on Terror. For example, there has been a sequence of airport sweeps for undocumented workers, most famously one called "Operation Tarmac." Of course, these operations pulled in dozens of undocumented workers (mostly Hispanic), who were duly prosecuted: All of these prosecutions were counted as "terrorism" cases even though there was never any connection between the individuals concerned and any hint of terrorism. Yet this large investment of federal resources hasn't necessarily made the nation any safer - even as it strokes nativist sentiments.

Of course, the kind of policy makes individual prosecutors look good. And it bulks up the numbers that Justice reports to Congress at the end of each year, justifying greater appropriations. But it also gives a misleading impression of the scope of the terrorist threat in the United States, which in turn is used to underwrite new, and harsher, policies.

Until we have a return to real oversight, and a fresh commitment to professionalism with the Justice Department, we won't be able to get our counter-terrorism policies straight. We will continue to misallocate resources and misjudge the threat. This means holding hearings on how internal oversight within the Justice Department is done. It means examining the functioning of critical institutions like the Office of Legal Counsel, which has an important influence on legal policy. And it means strengthening disclosure laws - and the sanctions for non-disclosure - to ensure a meaningful conversation between the ranches of government.

Getting rid of Gonzales, in short, may be satisfying for some in Congress who have been frustrated by his stonewalling - but it will not solve these systemic problems, which demands wholesale legislative reform as answers.

Aziz Huq: "Removing Gonzales Will Not Remove Systematic Problems" (pdf) 

Tags: Justice, Liberty & National Security, Checks & Balances, Privacy & Profiling

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Faulty History at the D.C. Circuit

By Jonathan Hafetz – 02/26/07

*Cross-posted from Balkinization

The District of Columbia Circuit’s 2-1 decision in Boumediene v. Bush directing dismissal of Guantanamo Bay detainee habeas corpus petitions turned partly on a historical assessment of the scope and meaning of the Great Writ. The judges all agreed that section 7 of the Military Commissions Act of 2006 (“MCA”) eliminated habeas jurisdiction over petitions filed by or on behalf of aliens detained at Guantanamo. Writing for the court, Judge A. Raymond Randolph found that the MCA did not violate the Constitution’s Suspension Clause because, he concluded, the writ of habeas corpus was not available to non-citizens detained outside the sovereign territory in 1789. Dissenting Judge Judith Rogers disagreed, finding that the writ would have been available in a territory like Guantanamo at the time of the nation’s founding. The MCA was void, she concluded, because Congress had eliminated habeas jurisdiction without suspending the writ or providing an adequate and effective substitute.

What role history will play at the Supreme Court remains uncertain. But it is useful to identify some shortcomings in the court’s analysis and in the inferences drawn from the historical record.

To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)). There, the Supreme Court concluded that the “[a]pplication of the habeas statute to persons detained at the [Guantanamo naval] base is consistent with the historical reach of the writ of habeas corpus.” Importantly, in Rasul the Court rejected the government’s argument that the writ’s reach at common law turned on territorial sovereignty rather than on “the practical question” of the crown’s control over the particular territory. The Court relied, for example, on King v. Cowle (97 Eng. Rep. 587 (K.B. 1759)), where Lord Mansfield explained that the writ would run to territories “under the subjection of the Crown.”

The D.C. Circuit also misconstrued the historical record. Contrary to the court’s conclusion, and as noted by the dissent, the common law writ was available in territory where the Crown exercised de facto but not de jury sovereignty. In India, English courts issued writs of habeas corpus to non-citizens unlawfully detained by crown officials. Moreover, in India Britain intentionally delayed the assertion of formal sovereignty over crown-controlled territories for decades after judges had begun issuing writs of habeas corpus on behalf of prisoners there to curb arbitrary exercises of power. (Disclosure: I represented a group of historians as amici curiae who argued these issues to the court). What this history shows is that there were no legal black-holes at common law, not that sovereignty was the touchstone, let alone the sine qua non, of habeas jurisdiction.

In fact, in no case before 1789 was the common law writ of habeas corpus held not to extend to territory under the crown’s exclusive control and jurisdiction. To the contrary, courts historically resolved any questions about the writ’s territorial reach in favor of its availability. The default rule in favor of habeas jurisdiction should apply with even greater force where the executive deliberately seeks to create a prison in a territory under its complete and permanent control to circumvent judicial review, as it has done at Guantanamo.

Judge Randolph also ignored the distinction between statutory and common law habeas. Judge Randolph pointed to Habeas Corpus Act of 1679, reasoning that the act’s time-limits for producing a prisoner showed that the writ would not run outside the sovereign territory of the crown. But this statute applied only to criminal cases and did not affect the common law writ which remained available in cases of executive and other non-criminal detention, including detention by the military. No territorial limits were placed on the common law writ’s reach, and it was this writ, not the 1679 act, that traveled to America and was operating in all thirteen colonies that rebelled in 1776. (Judge Randolph’s statement that there is no common law jurisdiction misses the point; as the Supreme Court explained in INS v. St. Cyr (533 U.S. 289 (2001)), the Suspension Clause guarantees statutory habeas jurisdiction at least in all cases where the writ would have been available at common law). In addition, it is ironic indeed to claim that the 1679 act – whose procedural reforms prompted William Blackstone to extol the statute as a “bulwark of individual liberty” – sanctions the creation of lawless enclaves in the twenty-first century. Merely because it might have been impractical to impose the 1679 act’s time-limits on habeas petitions filed by or on behalf of individuals held overseas four centuries ago does not support limiting constitutional habeas jurisdiction today to territory where the United States exercises sovereignty.

The court also mistakenly suggested that the Suspension Clause protects only the writ as it existed in 1789. As Judge Rogers notes, the court ignored the Supreme Court’s repeated statements that the Suspension Clause, at a minimum, protects the writ as it existed in 1789. (Marty Lederman also makes this point in his account of the decision). Judge Randolph thus neglected to consider whether the writ should extend to Guantanamo even if it would not have extended to such a territory in 1789. Assuming there were no common law case directly on point, the availability of habeas at Guantanamo is central to the writ’s core purpose as a safeguard of individual liberty. Legal challenges to executive detention at Guantanamo thus fall squarely within the heartland of habeas protected by the Suspension Clause, direct analogies from history aside.

Because the court found that the detainees had no constitutional right to habeas, it did not consider whether review by the D.C. Circuit of Combatant Status Review Tribunal (“CSRT”) decisions under the Detainee Treatment Act of 2005 could provide the adequate and effective substitute that the Suspension Clause requires. Judge Rogers, however, found this review scheme inadequate and ineffective, even though she rejected the claim that the detainees have rights under the Due Process Clause of the Fifth Amendment, as the district court had held in In re Guantanamo Detainee Cases (355 F. Supp. 2d 443 (D.D.C. 2005)). Judge Rogers thus recognized that Guantanamo detainees possess a core right against executive detention inherent in the common law writ of habeas corpus distinct from rights they may assert under the Fifth Amendment (rights the Supreme Court seemingly acknowledged in footnote 15 of Rasul). Judge Rogers concluded that the DTA’s narrow review of the flawed CSRT process, which lacks any meaningful factual inquiry, cannot provide adequate and effective substitute for common law habeas, a process codified in the habeas statute, 28 U.S.C. 2241 et seq. Indeed, Justice O’Connor described a similar habeas process, distinct from the Due Process Clause, in Hamdi v. Rumsfeld (542 U.S. 507 (2004)), as did Judge Michael Mukasey in Padilla ex rel. Newman v. Bush (233 F. Supp. 2d 564 (S.D.N.Y. 2002)). In short, at common law, prisoners routinely obtained a meaningful judicial inquiry into the factual as well as legal basis for their detention – precisely what the combined effect of DTA review of CSRT decisions precludes.

Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention. The notion that the President can maintain Guantanamo as a prison beyond the law based on the legal fine print of sovereignty is antithetical to the basic principles habeas corpus and the Suspension Clause embody. It does not take a historian to recognize this much.

Jonathan Hafetz: "Faulty History at the D.C. Circuit" (PDF) 

Tags: Justice, Liberty & National Security, Detainee Policy

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Winning Back the Checks and Balances of American Government?

By Aziz Huq – 02/01/07

*Cross-posted from The Huffington Post

It's hardly the fall of the Berlin wall, more a knocking away of a block or two away: Yesterday, the Justice Department announced that it would allow a handful of legislators to look at a key document related to National Security Agency's newly amended domestic spying program. Like other concessions, today's development is far less than first appears. Worse, it risks obscuring the truly troubling questions about accountability and oversight, questions that are becoming all the more pressing now Congress is making tentative moves to play its proper constitutional role.

Some background: In December 2005, James Risen and Eric Lichtblau of the New York Times broke news that the NSA was spying without warrants on Americans in the homeland. Past Administration denials morphed overnight into vigorous defense: How dare the Times, or anyone else, even discuss, let alone question, the illegal and secret tactics that the President chose to use in derogation of Americans' privacy rights? To do so was, the Administration implied, to give aid and comfort to the enemy.

Law suits followed, with the ACLU and CCR leading the charge in suits in Detroit and New York. (Full disclosure: I am counsel on an amicus brief filed by the NAACP and other civil rights in opposition to the NSA's spying). In August 2005, Judge Anna Diggs Taylor of the federal district court in Detroit issued an opinion finding the executive in violation of the First and Fourth Amendments. What followed was an avalanche of calumny on Judge Taylor's head, especially from conservative commentators.

The government appealed Judge Taylor's decision to a federal appeals court, the Sixth Circuit. Just as that case was about to be heard, it tried to the cut the legs out from under it: A little more than a week before the hearing, which took place yesterday, Attorney General Alberto Gonzales announced that the Administration would henceforth secure judicial warrants from the Foreign Intelligence Surveillance Court, rather than operating without warrants under a new arrangement worked out with that court. And even though that court's chief judge openly said there would be no problem in releasing details of the new arrangement, Gonzales resisted any disclosure of the "arrangement," leaving grave doubts about whether the new policy falls within the law.

Hence the relevance of yesterday's announcement: Even as the Sixth Circuit was pressing Deputy Solicitor General Greg Garre on his argument that the case should be dismissed as moot, the Administration was backing off from its "no disclosure" position, and saying that members of the intelligence committees and certain House and Senate leaders would be able to see the details of the new arrangements.

Yet what seems to be a comprehensive climb-down both in the courts and in Congress is far less than meets the eye.

Take first the government's apparent retreat from warrantless spying on Americans: In the Sixth Circuit hearing yesterday, it became quickly apparent that the government has not backed down from the claim that it has the power to override privacy laws, not to mention the First and Fourth Amendments, in the name of national security. By backing off just as the Court was poised to decide, Garre explained, the Government wanted to pre-empt a potentially unfavorable ruling while also preserving its ability to re-start warrantless spying. It gets, in other words, to have its cake and eat it.

Then consider the decision to disclose to Congress. A year ago, when news of the NSA's warrantless spying broke, the Bush Administration said that it had provided "more than a dozen briefings" to Congress. As I explain at length in a forthcoming book, the Administration limited its briefing to a small group of legislators and barred their staff. For busy legislators, this arrangement meant that they might gain some limited insight into what was happening - but then they had no way of developing either the facts or the legal bases of what was being done. That is, the Administration was able to claim it had disclosed to Congress but at the same time it had deprived legislators of the opportunity for oversight.

The kind of openness being promised now is exactly the same kind that was used before to create disclosure-without-accountability. Hence, unless the legislators concerned push, and make sure their staff and their colleagues can examine the new "arrangement," there cannot be the kind of robust debate and interrogation of the Administration's newfound respect for the law.

Worse, the Administration is insisting that this disclosure does not create any precedent: It intends to remain as tight-lipped as always, keeping from Congress the documents and facts that legislators need to do their job.

Indeed, the document that was disclosed yesterday is one that implicates the most minimal of secrecy concerns, and raises the largest red flags when left undisclosed: It is a document not about the facts, but about the legal regime that governs counter-terrorism operations. But should the law ever be secret? The argument that terrorists can learn anything from the abstract categories used to establish the metes and bounds of a program is absurd, particularly in the wiretapping context: Laws or legal rules, which are framed in terms of generalities, have never been thought to "tip off" terrorists - but they are vital to oversight. How can citizens hold their elected leaders to account if they don't even know what policies they adopt?

In fact, there is ample historical precedent for forcing the executive to yield up information even in the national security context. One of the earliest invocations of executive privilege, was by President George Washington. It concerned a congressional inquiry into a failed November 1791 military expedition. Washington eventually gave the information up (although he insisted on his right to withhold information). Since then Congress has been vigorous in seeking disclosure from the executive, especially when there is evidence of wrong-doing or law-breaking).

Disclosure should not be at the executive's pleasure, as the Justice Department yesterday suggested: It is a constitutional compulsion, necessary for Congress to do its job. Rather than accepting piecemeal revelations at the whim of Mr. Gonzalez, Congress needs not only to start issuing subpoenas but to start holding hearings and legislating on new disclosure rules and new structures to ensure meaningful accountability not just today, but for the future.

Aziz Huq: "Winning Back the Checks and Balances of American Government?" (pdf) 

Tags: Justice, Liberty & National Security, Checks & Balances

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Reform Federal Civil Justice Policy to Meet the High-Stakes Legal Needs of Low-Income People

By Laura Klein Abel – 01/05/07

By Laura K. Abel & David Pedulla

*Cross-posted from TortDeform.com 

In November, the voters called for a different approach to national policy. With the New Year, it is time for Congress to make that new approach happen. These are some policy reforms that would help fix one fundamentally flawed aspect of our government – the inability of low-income people with pressing civil legal needs to get a fair day in court.

1. Allocate more funding to the Legal Services Corporation.
Every county of every state is served by civil legal aid lawyers receiving federal funding through the Legal Services Corporation (“LSC”). Those lawyers provide representation in cases regarding the daily, crucial legal needs of low-income people, in matters such as child custody, evictions, and subsistence-level public benefits. Repeated studies show that about 80% of those legal needs go unmet because LSC lacks adequate funding. Pro bono and other palliative measures are unable to fill the gap. The minimum Congress should allocate is $411 million – the amount called for by LSC and the American Bar Association. Even that amount will leave many dire legal needs unmet, but it will be an improvement over the current LSC funding level of $330 million.

2. Ensure that Interest on Lawyers’ Trust Accounts accrue the same level of interest as other bank accounts.
Interest on Lawyers’ Trust Accounts (“IOLTA”) – a program in which attorneys bundle client funds in order to generate interest revenue where no interest would otherwise be generated – is one of the nation’s largest funding sources for civil legal aid. Unfortunately, banks sometimes pay less interest on IOLTA accounts than they do on other similar bank accounts. Congress should follow the practice of many state legislatures and state court systems by instituting banking reforms to require banks to pay interest at the same rate on IOLTA accounts as they do on comparable accounts.

3. Remove the LSC “physical separation requirement.”
A holdover policy from the Gingrich-era Congress requires civil legal aid programs receiving LSC funds to waste their scarce resources by establishing two different offices if they want to use their non-LSC funds free of cumbersome restrictions. The restrictions bar the programs from representing clients in class action lawsuits, claiming court-ordered attorneys’ fee awards to strengthen clients’ cases, and representing many categories of immigrants, among other activities. Congress should remove the wasteful physical separation requirement to allow civil legal aid lawyers to help their clients in the most efficient and effective manner.

4. Examine whether the LSC Inspector General is overstepping his mandate by interfering with the ability of civil legal aid programs to serve their clients.
Civil legal aid programs receiving LSC funding recently have come under attack by LSC’s Inspector General (“IG”). The IG claims to be trying to ensure that impact work does not interfere with civil legal aid programs’ ability to meet the basic needs of low-income clients. Our fear is that the IG’s investigations themselves are interfering with the ability of civil legal aid lawyers to meet the needs of their client communities in the most efficient and effective manner. Congress must investigate whether this is the case.

5. Reform the Bankruptcy Act.
In 2005, Congress enacted sweeping changes in the bankruptcy laws. One change that went too far was the imposition of personal liability on lawyers representing clients in bankruptcy proceedings. This reform has scared countless lawyers in public interest organizations and in private practice away from representing clients seeking bankruptcy protection. Congress must roll back this provision to increase financial protection for low-income people and to ensure that the bankruptcy system can benefit from the participation of lawyers skilled at counseling and representing clients.

6. Fund student loan forgiveness programs for civil legal aid lawyers.
Another reason low-income people have a hard time finding high-quality legal representation is that few recent law school graduates can afford to take public interest jobs. A recent study found that more than 80% of law students borrow money to pay for law school, with an average loan burden of $78,763 for students attending private schools. For these students, taking a legal aid job paying an average of $35,000 is not an option. Congress should expand a pilot program operated by the Legal Services Corporation, which helps civil legal aid attorneys repay their loans.

7. Pass legislation similar to the Civil Rights Act of 2004 (the FAIRNESS Act).
Over the course of the past decade, the federal courts have stripped themselves of the ability to enforce many important civil rights protections. The result is that people suffering discrimination often find that they have no way to enforce their rights. The FAIRNESS Act would restore access to the courts for seniors seeking to challenge age discrimination, for immigrants seeking to enforce their language access rights, and for many others seeking fair treatment under the law.

Tags: Justice, Civil Justice, Attorneys' Fee Awards, Civil Legal Aid, Fair Forums, Language Access

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Why Virgil Goode is So Wholly Wrong

By Aziz Huq – 12/22/06

*Cross-posted from The Huffington Post

As Cenk Uygur has explained, Virgil Goode's slur is a naked attempt to link terrorism, immigration, and Islam in a way that panders to the ugliest kind of nativism. It's worth stepping back too to look at why Goode is so wholly wrong.

For Goode is far wide of the mark when he suggests that Muslims in the States are all immigrants. Indeed, the history of Islam in America, as documented most recently by Genieve Abdo shows how Muslims, have been part of the American story from the very beginning, albeit sometime at the margins.

Muslims have been embroiled in the task of becoming Americans from the very beginning of the nation. I'm certain that Goode is not alone in forgetting that many Muslims were living in the United States before there even was a United States--as slaves. Islam was common in the West Africa (many Muslims were merchants in the region) when that part of the world was a hunting ground for slaves. Records from the Revolutionary era list slave names and reveal many Muslims among those who made the Middle Passage. And Islam was not snuffed out by the horrors of slavery. As late as 1837, a slave narrative by one Charles Ball documents slaves engaged in the five daily prayers that Muslims do.

A second wave of Muslim immigrants came as part of the effort to conquer the American West at the end of the nineteenth century. The first mosque in the United States was built, according to Abdo, in Ross, North Dakota. A commemorative plaque in Quartzsite, Arizona celebrates a Syrian immigrant known as "Hi Jolly" (in fact, Hajji Ali), as "a faithful aid to the U.S. government."

Today, Hajji Ali finds his latter-day counterpart in the FBI agent Ali Soufan: As Lawrence Wright has movingly recounted, Soufan came within inches of unraveling the 9/11 plot, failing largely due to the CIA's failure to share its data hoard. When Goode attacks Muslims as incapable of being Americans, he spits not only on the grave of men such as Hajji Ali who have (quite literally) built America, he also tars the dignity and loyalty of proud government servants such as Soufan.

To say that Muslims or Islam is somehow "alien" to America is thus at least ironic--and at worst the evidence of an ugly and stupid prejudice.

Today, an accurate count of Muslims in the U.S. is hard to find. Estimates ranging from 1.1 million to 7 million. About a third of American Muslims were born in the United States, and many others are non-citizens. Large Muslim communities now live in New York, Chicago, Detroit, and Dallas/Fort Worth-Houston. They include Sunni and Shia; they encompass the covert, the pious and the lapsed. There are no easy stereotypes about the manifold ways of being a Muslim American in 2007.

Indeed, Islamic doctrines more broadly are also far more complex than first appears. As Cenk explained, there is no doubt that there are some pathological ideologies that claim to be Islamic--and these must be marginalized and wiped out. But it should not need repeating that the overwhelming majority of Muslims have no interest in or appetite for political violence. The sheer number of Muslims in Europe and the United States, set against the single-digit infrequency of ideological violence, ought to give the lie to any such claim.

One hundred and fifty years ago, Virgil Goode might have made the same speech - except where he used "Muslim" today, he would have been using "Catholic" one hundred and fifty years ago. The now-defunct "Know Nothing" party panders to fears about Irish and Italian immigration. It invoked the specter of Northeastern port cities being overrun by the papist lower classes. Know Nothing politicians accused Catholics of "ultramontainism," that is owed a first and foremost allegiance to the Vatican, and thus being incapable of being a loyal American.

Just as the Know-Nothings were proved wrong--and have largely been left in history's dustbin--so too will Virgil Goode's smear one day remain only as evidence that America can overcome its darker impulses. Muslims, like any other community of faith that is rooted here, and that has links overseas, have been and can be a part of the diverse and shifting fabric that is today and will be tomorrow America.

Aziz Huq: "Why Virgil Goode is So Wholly Wrong" (pdf) 

Tags: Justice, Liberty & National Security, Privacy & Profiling

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American Justice on the Line

By Jonathan Hafetz – 12/19/06

*Cross-posted from The Huffington Post 

Last week, a district judge in Washington dismissed the case of Guantanamo Bay detainee Salim Hamdan. In June, Hamdan won a landmark Supreme Court decision striking down President's jerry-rigged system of military trials at Guantanamo. Now, thanks to a new law stampeded through Congress in October, Hamdan cannot even get into court. This decision should alarm all Americans who care about their country's most basic rights and values.

The fate of the remaining 400 prisoners at Guantanamo - now entering their fifth year in detention without charge - hinges on how other courts interpret this new law, known as the Military Commissions Act of 2006 ("MCA"). Most significantly, the act purports to eliminate these prisoners' right to habeas corpus simply because the President has concluded they are "illegal enemy combatants." If appeals courts agree with the district judge's decision, these prisoners will face potential life sentences without a judicial hearing, let alone a trial, to determine their guilt or innocence.

The MCA's harm threatens to spill beyond Guantanamo. The President has taken the radical position that he can now deprive non-citizens living in this country of their right to habeas corpus. In his view, the military can snatch any of the millions of immigrants off the streets of the United States at any time and jail them forever without charge or court review. For the first time in the Nation's history, those who live and work among us can be vanished, just like in a Latin American dictatorship.

More though is at stake than the fate of individual detainees. Habeas corpus embodies America's commitment to justice and fairness, essential principles endangered by the siren call of "national security."

Why then does the President want to get rid of habeas corpus? Because for the past five years habeas has provided the one meaningful check on his power to detain and interrogate suspected terrorists outside the law.

Long celebrated as the Great Writ of Liberty, the Framers made habeas corpus "the bulwark" against arbitrary government in our Constitution. The Great Writ has the power to unmask and reveal abuses of power not through lawyers' arguments but through the power of a judge - as the phrase habeas corpus or "you have the body" suggests - to order a prisoner be produced for a hearing to inquire into the facts.

Habeas, then, is not a get-out-of-jail free card. Instead, it protects what most Americans rightly understand as justice: the opportunity for all prisoners to be judged, fairly and openly, in a court of law.

To be sure, the President claims that Guantanamo detainees are "the worst of the worst." But, if that is true, why has the President has not produced any evidence to sustain these allegations? No person detained as an "enemy combatant" has ever testified in a federal court, and the administration has thus far successfully blocked hearings in the hundreds of habeas cases filed since the Supreme Court ruled in 2004 that federal courts must hear the detainees' petitions. Indeed, whenever confronted with the prospect of meaningful court review, the administration has chosen to free prisoners rather than face a judge's scrutiny of its detention operations.

In place of habeas, the administration says determinations must be made by a Combatant Status Review Tribunal ("CSRT"). The CSRT, however, merely rubber-stamps decisions made by the Defense Department, imprisoning people based on secret evidence and evidence gained by torture. According to a recent report by Seton Hall law school, most detainees were found to be "enemy combatants" based on evidence they never saw or had any chance to respond to. Instead of an attorney, detainees were given "personal representatives," military officers who typically meet with them once for 10 minutes before their hearing. In America, a person gets more due process when he contests a parking ticket than a Guantanamo detainee gets to prove his innocence before he is condemned to years, if not decades, of imprisonment.

Often, it is the graphic image that galvanizes the public's attention, whether it is the picture of a human pyramid of prisoners at Abu Ghraib or of Jose Padilla in blacked-out goggles at a South Carolina navy prison. But, perhaps the worst form of torture perpetrated since September 11, and the one habeas corpus is designed to prevent, is indefinite imprisonment without charge. Unlike convicted criminals, individuals detained as "enemy combatants" at Guantanamo and elsewhere have not been tried or sentenced. They do not know when, if ever, might be released or charged with a crime. Instead, they remain in perpetual limbo in an amorphous and never-ending "war on terrorism," without access to the courts and isolated from family and the rest of the outside world.

Fortunately, there is a rising tide of support for habeas corpus from across the political spectrum. Conservative legal scholars have joined liberals in opposing limits on habeas corpus. Former federal prosecutors, including former Attorney General Janet Reno, have also denounced the administration's policy of illegal detentions. Meanwhile, the television program Sleeper Cell has dramatized the creeping horror of time spent in isolation for millions of Americans. There is a growing sense, then, that administration has gone too far, alienating even some of its staunchest supporters, by imprisoning people without access to the courts.

Habeas corpus protects freedom and justice - values that cross party lines. As the Supreme Court explained, habeas helps maintain the "delicate balance of governance" by "serving as an important judicial check on the Executive's discretion in the realm of detentions." With the administration's "war on terrorism" well into its sixth year, it is essential that the courts and Congress preserve this proud legal tradition from extinction.

Tags: Justice, Liberty & National Security, Detainee Policy, Privacy & Profiling

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Disposable Pawns in a Game of Diplomatic Chess

By Aziz Huq – 12/06/06

*Cross-posted from The Huffington Post

In a federal court of appeals in Washington, DC today, a case has been filed that casts troubling light on the apparent willingness of the United States government to detain innocent men as "enemy combatants" in order to secure international support for its 2003 invasion of Iraq.

Here, in brief, are the facts described in the filing.

In 1949, Maoist China seized a new far western province known to many of its inhabitants as East Turkistan. Calling the new province "Xingjian," the Chinese ruthlessly suppressed political and religious diversity. Thousands of ethnic Uighers, who are Muslim by affiliation, fled the province.

Among those who sought new lives free of Communist oppression were twenty-three Uighers, who ended up in northern Afghanistan--long an entrepot for Afghans, Turkic, and Chinese peoples. They lived in a village near the eastern town of Jalalabad, doing odd construction and manual labor. They never fought with either al Qaeda or the Taliban. After their village was bombed in the American invasion of October 2001, they fled to Pakistan.

In December 2001, the Uighers were seized by Pakistani forces and handed over to America for $5000 ransoms. It is a matter of public record that the Pentagon, on the advice of Justice Department lawyers, did not screen its detainees to determine if it was properly holding them: It simply assumed everyone seized was a terrorist.

Grabbed by bounty hunters hungry for money, far from any battlefield, the Uighers were nevertheless taken to Guantánamo. They were labeled the worst of the worst and confined in cages. In a foreign land, they were stranded, cut off from their culture, their homes, their friends, their families.

After three years' detention without any process whatsoever, the Uighers were given the first chance to present their case to a "Combatant Status Review Tribunal," or CSRT. The military explicitly told detainees that the CSRTs were not "habeas review"--that is, the traditional judicial text for unlawful detentions. It is telling that CSRTs were conducted at a rate of 50 per week. The Uighers had no lawyer. They had no way of getting evidence. They were not permitted to see the evidence against them.

A CSRT, indeed, is a simple affair. The officer says, "You're in al Qaeda." The detainee says, " No, I'm not, and if you allow me to present evidence, I can prove it." The officer refuses, stamps the file "enemy combatant"--and we're done for the day.

Much of this is known. What was not known until now is why this decision was made. In August 2002, as Iraq war drums was neared their zenith, Deputy Secretary of State Richard Armitage traveled to China to talk about the war that the United States had already decided to launch in Iraq.

But, for the Chinese, the Uighers were an issue. They demanded that the United States recognize the Uighers as a terrorists, and designate Uigher political dissidents as members of a terrorist group. Armitage complied.

It appears that the August 2002 agreement reached with China was even more detailed. In September 2002, mere weeks after the Armitage visit, the filing explains, Chinese interrogators visited Guantánamo to question the Uighers--and used with American authorization coercive techniques such as environmental manipulation, stress positions, and stress deprivations.

Let me reiterate what the Uighers' filing credibly asserts: At a U.S. military facility, the United States permitted Chinese intelligence agents to torture detainees as quid pro quo for Chinese support for the Iraq War.

Of course, by time the war began, Chinese support within the U.N. was, shall we say, less than imperative. In April 2003, the Uighers were told, in the words of one interrogator "You are innocent. I am closing the file on you." The United States began looking for a country that would take the Uighers (who would be tortured if sent to China). Three years later, several are still there.

The question today is whether the United States will continue to keep innocent men in cages for years on end. It is a question of whether to treat human beings as disposable pawns in a grand game of diplomatic chess. A question of whether our principled belief in human dignity must yield before the expediencies of illegal and unwise warmongering.

Last week, the Justice Department issued an apology to Brandon Mayfield, an Oregon lawyer who had been wrongly detained as a "material witness" and criminal suspects in the March 2004 Madrid bombing. Mayfield, another innocent swept up in reckless and feckless counter-terrorism operations, could have sued--and would doubtless have secured a considerable (and embarrassing) judgment.

The Uighers, however, cannot invoke the shadow of money damages: Recent legislation cuts off all money damages claims based on abuse and mistreatment in global money damages claims. Unlike Mayfield, they must ask the United States to do the right thing for its own sake.

Apparently, that's not enough for this Administration.

Indeed, the Uighers must cling to sanity and life against dire odds. Their presence in U.S. hands is a continuing shame. A persistent scar on America's reputation for honesty and decency.

In September, Congress passed the Military Commission Act, which purports to limit the ability of federal courts to scrutinize the facts surrounding certain detention decisions. The case of the Uighers shows why the government wants to limit scrutiny.

When the Democrats took control of the House and Senate, they promised accountability. For many Americans and for many citizens of other nations, it is too late. But for some of the victims of collateral damage from the Iraq war, the clock has not struck twelve. We still can do some modicum of justice, save some cinder of face.

We should do so without delay.

Aziz Huq: "Disposable Pawns in a Game of Diplomatic Chess" (pdf) 

Tags: Justice, Liberty & National Security, Detainee Policy

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Developing a Right to Counsel in Civil Cases in Which Basic Human Needs Are at Stake

11/29/06

by Laura K. Abel & David Pedulla

*Cross-posted from TortDeform.com 

If you are charged with a crime, facing prison, and unable to afford an attorney, the U.S. Constitution requires that the court appoint one for you. Did you know, though, that in civil cases, where the consequences may be far more devastating than spending a brief time in prison, counsel generally is not guaranteed? Every day, parents fight to keep their children, and families fight to keep their homes, without a lawyer by their side. Fueled by the knowledge that this is unjust, and by a recent resolution from the American Bar Association, advocates around the country are working to change this sad state of affairs.

It doesn’t take an expert to know that if you represent yourself against someone who has a lawyer, you will be at a severe disadvantage. As the adage goes, “The man who represents himself has a fool for a lawyer.” The result of such a proceeding frequently is that the unrepresented party cannot present the relevant law and facts, the judge has to decide the case in a vacuum, and the outcome is based more on accident than on a careful weighing of the facts. A democracy in which the judiciary has primary responsibility for protecting individual rights cannot afford to require low-income people to go without legal counsel in cases in which basic human needs are at stake.

This past summer, the House of Delegates of the American Bar Association unanimously approved a resolution urging federal, state, and territorial governments to assure that poor people have a right to legal counsel in cases where basic human needs, such as shelter, sustenance, safety, health, or child custody, are at stake. Michael S. Greco, the then-president of the ABA, called the resolution “historic in the realm of an extraordinarily meaningful action by the ABA.” The Conference of Delegates of California Bar Associations passed its own resolution this fall, calling for free legal representation in cases dealing with sustenance, shelter, safety, health, and child custody for people unable to afford to pay for counsel. Other state and local bar associations should follow suit.

Low-income people in several states are asserting a state constitutional right to counsel in various kinds of cases involving family issues. There are also efforts underway around the country to persuade state and local legislatures to pass legislation guaranteeing a right to counsel in civil cases concerning basic human needs. The California Commission on Access to Justice recently released a model civil right to counsel statute, providing a boost to these efforts.

Of particular interest to readers who want to learn more about the state of the right to counsel in civil cases, and the movement to expand it to all cases concerning basic human needs, is a recent edition of the Clearinghouse Review: Journal of Law and Policy dedicated to the right to counsel in civil cases.

Tags: Justice, Civil Justice, Civil Right to Counsel

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