Supreme Court Rejects Guantanamo Military Tribunals

In a sharp rebuke of President George W. Bush's tactics in the war on terrorism, the U.S. Supreme Court on Thursday struck down as unlawful the military tribunal system set up to try Guantanamo prisoners.

By a 5-3 vote, the nation's highest court declared that the tribunals, which Bush created right after the September 11 attacks, violated the Geneva Conventions and U.S. military rules.

"We conclude that the military commission convened to try (Salim Ahmed) Hamdan lacks power to proceed because its structure and procedures violate" the international agreement that covers treatment of prisoners of war, as well as the Uniform Code of Military Justice, Justice John Paul Stevens wrote for the court majority.

The decision was a stinging blow for the administration in a case brought by Hamdan, who was Osama bin Laden's driver in Afghanistan. Hamdan, one of about 450 foreign terrorism suspects at the U.S. naval base in Guantanamo Bay, Cuba, was captured in November 2001.

At the White House, Bush said he had not fully reviewed the ruling and would consult with the U.S. Congress to attain appropriate authority for military tribunals. "We take the findings seriously," he said.

A Pentagon spokesman declined immediate to comment but reiterated the need for a U.S. facility to hold dangerous captives.

The ruling, handed down on the last day of the court's 2005-06 term, followed the deaths of three Guantanamo prisoners this month and increased calls for Bush to close the prison camp. U.S. treatment of inmates at Guantanamo and in Iraq and Afghanistan has drawn international criticism.

One of Hamdan's lawyers, Lt. Cmdr. Charles Swift, praised the high court action. "All we wanted was a fair trial," he said outside the Supreme Court. "Yes, it is a rebuke for the process. ... It means we can't be scared out of who we are."

Anthony Romero of the American Civil Liberties Union said, "The Supreme Court has made clear that the executive branch does not have a blank check in the war on terror and may not run roughshod over the nation's legal system."

Stevens, at 86 the high court's longest serving justice and a leading liberal, said the military commissions were not expressly authorized by any act of the U.S. Congress. But in reading part of the decision from the bench, he said Bush was free to go to lawmakers to ask for the necessary authority.

Stevens also wrote the Supreme Court decision two years ago that handed the Bush administration another major setback in ruling the Guantanamo prisoners can sue in U.S. courts.

RULES ARE ILLEGAL

Stevens said in his 73-page opinion, "The rules specified for Hamdan's trial are illegal." He said the system has to incorporate even "the barest of those trial protections that have been recognized by customary international law."

He said the tribunals failed to provide one of the most fundamental protection under U.S. military rules, the right for a defendant to be present at a proceeding.

The case produced a total of six opinions totaling 177 pages.

Stevens was joined by the other liberal justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, and moderate-conservative Anthony Kennedy.

The conservatives -- Justices Antonin Scalia, Clarence Thomas and Samuel Alito, who was appointed by Bush -- dissented.

The ninth member of the court, Chief Justice John Roberts, who also was appointed by Bush, removed himself because he previously was on the U.S. appeals court panel that ruled for the Bush administration in Hamdan's case.

The dissenters agreed with the administration's argument that the case must be dismissed because a recent law stripped the high court of its jurisdiction over Hamdan's appeal.

Thomas also said the court needed to respect Bush's power as commander in chief while Alito said he disagreed with the majority that Hamdan's tribunal was illegal.

By James Vicini

(additional reporting by Deborah Charles)

Reuters

Justice Dept. Reports Inaction on Police Brutality

Thousands of public complaints are made against police officers for using violence against civilians, but an overwhelming majority do not result in disciplinary action against the officers in question, according to a new report from the US Department of Justice.

‘Copwatch’ Activists Patrol Communities to Thwart Police Misconduct (Mar 3, 2005)
The agency reviewed 26,556 "citizen complaints" filed during 2002 at state and local law-enforcement agencies. Out of that number, just 8 percent were sustained with enough evidence to justify taking punitive action against the accused officer. The report did not say how often or in or what ways officers in this group were disciplined.

In nearly one-half of the cases reviewed, authorities exonerated officers despite allegations that they acted excessively; in about a third of incidents, investigators said they did not find enough evidence that unlawful force was used.

The DoJ report lacks specific accounts of police conduct, let alone victims’ or witnesses’ perspectives.

The author also neglected to define "use of force," a term used regularly in the report, which was released Sunday. The Department states on its website that there is "no single, accepted definition among the researchers, analysts or the police." The report does, however, take pains to define "use of excessive force" – when officers uses too much violence – and "excessive use of force" – when officers use violence legally but in too many incidents.

In nearly one-half of the cases reviewed, authorities exonerated officers despite allegations that they acted excessively.
The report also cautioned that complaint data is inconsistent across agencies. The report’s author, statistician Matthew Hickman, wrote that the quality of records – in addition to differences in receiving, processing, and recording complaints – affects the volume and rate of complaints reported across law-enforcement agencies.

For example, the review found that departments with an internal audit division had a higher rate of complaints than those without. Additionally, officers were more than twice as likely to be exonerated at departments that lacked such a division.

Furthermore, wrote Hickman, "[use-of-]force complaints represent a subset of all force events. That is, not all [use-of-]force events result in citizens filing formal complaints."

According to another DoJ-authored report, based on the Department’s 2002 "Contacts Between the Police and the Public" survey, less than 20 percent of respondents who reported experiencing what they said was excessive threat or use of force, took formal action such as filing a complaint or lawsuit. The study extrapolated that a total of 664,500 people in the United States – or about 1.5 percent of those who had contact with police – experienced a use of force by police. Three quarters of them perceived it to be "excessive."

Police watchdogs agree that complaint statistics are inaccurate. The American Civil Liberties Union states on its website that figures are marred by agencies’ reluctance to provide information and by data that is difficult to interpret. According to the ACLU, "the number of complaints counted is also affected by whether or not the internal-affairs system accepts anonymous complaints and complaints by phone or mail, or requires in-person, sworn statements."

Minnesota lawmakers passed a “false reporting” bill last year that makes it illegal to report a claim of police misconduct that is not proven to be true.
Human Rights Watch has also documented hurdles in the police-accountability process. "Complainants, whether they are victims or witnesses, may not know where to go to file a complaint," the group wrote in 1998. "They may have difficulty communicating due to language barriers, or they may be met with hostility by officers who do not wish to receive a complaint about a colleague. … Officers receiving complaints may ask questions that reveal they do not believe the complainant, or they may ask about the complainant's criminal history or charges that may be pending as a result of the arrest that gave rise to the alleged abuse incident."

Even greater obstacles are cropping up in some places. In Minnesota, a new law could further discourage people from filing complaints. Lawmakers passed a "false reporting" bill last year that makes it illegal to report a claim of police misconduct that is not proven to be true.

Communities United Against Police Brutality, a Twin Cities police watchdog group, questions just who would be determining whether or not a brutality complaint is false under the bill. "This law is clearly meant to frighten people away from filing complaints against abusive police officers," the group said in a petition.

Earlier this month, a coalition of community groups in Richmond, Virginia held a protest to voice frustration with police using what they considered excessive force, especially against black residents. The rally followed the city’s decision not to prosecute an officer involved in a fatal shooting of an unarmed man, and a judge’s dismissal of criminal charges against an officer accused of assaulting and cursing at a woman during a traffic stop.

Many community activists have long agitated for more accountability of officers who brutalize civilians. Some have formed Copwatch groups to "police the police" in places like Berkley, Brooklyn and Portland, Oregon.

In a growing number of cities, communities have lobbied for and organized civilian complaint review boards (CCRB) to review allegations of police misconduct. According to the DoJ report released this week, about one-fifth of large municipal police forces are overseen by such a board. The report noted that cities with CCRBs tend to receive more complaints, but it did not address the cause-or-effect relationship between the boards, incidences of alleged abuse and actual complaint-filing rates.

Some groups have criticized CCRBs, claiming they are not truly independent and lack the tools necessary to effectively hold officers accountable for wrongdoing. The DoJ report found that only about one-in-four CCRBs had independent investigative authority with subpoena powers.

The recent DoJ report also found that in the three quarters of municipalities that allowed police to unionize, residents filed police brutality complaints at significantly higher rates and those complaints were less than half as likely to be sustained.

The DoJ said the citizen-complaint survey report was part of its "continuing efforts to develop data resources on police use of force."

by Catherine Komp
June 27

http://newstandardnews.net/content/index.cfm/items/3343

Bush’s Wiretap Crimes and the FISA Farce

President Bush proudly announced last December that he is violating federal law. He declared that in 2002 he had ordered the National Security Agency to begin conducting warrantless wiretaps and email intercepts on Americans. He asserted that the wiretaps would continue, regardless of the law.

Bush claims that he must ignore the law because the secret federal court created to authorize such wiretaps moves too slowly to protect U.S. national security. Amazingly, his claim has been treated with respect by much of the nation’s media. Much of the media groveled at his claim the same way that the special court grovels to federal agencies.

In 1978, responding to scandals about political spying on Americans in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA created a new “court” to oversee federal surveillance of foreign agents within the United States.

The FISA court may be the biggest bunch of lapdogs in the federal government, even worse than the Fourth Circuit Court of Appeals. The court approved almost every one of the 15,000 search-warrant requests the feds submitted between 1978 and 2002, and continues to approve more than 99 percent of requests.

FISA provides a judicial process only in the sense that the room where the political appointees convene is called a “court.” As national security expert James Bamford observed,

Like a modern Star Chamber, the FISA court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The eleven judges (increased from seven by the Patriot Act) hear only the government’s side.
This speeds matters up and minimizes procedural delays.

Congress set a very low standard for FISA search warrants. In federal criminal investigations, the government must show probable cause that a person is involved in criminal activity before it is permitted to impose a wiretap. Under FISA, the government need show only that a person is a suspected agent of a foreign power or terrorist organization.

When FISA authorizes surveillance, the feds switch on all the turbos. In a 2002 decision, the Foreign Intelligence Surveillance Court noted that after it grants a surveillance request,

the FBI will be authorized to conduct, simultaneously, telephone, microphone, cell phone, e-mail and computer surveillance of the U.S. person target’s home, workplace and vehicles. Similar breadth is accorded the FBI in physical searches of the target’s residence, office, vehicles, computer, safe deposit box and U.S. mails where supported by probable cause.
Federal agencies can submit retroactive search-warrant requests up to 72 hours after they begin surveilling someone. In 2002, for instance, Attorney General John Ashcroft personally issued more than 170 emergency domestic spying warrants permitting agents to carry out wiretaps and to search homes and offices for up to 72 hours before the feds requested a search warrant from the FISA court. Ashcroft used such powers almost a hundred times as often as attorneys general did before 9/11.

After 9/11, the Justice Department vigorously lobbied for Congress to revise FISA to permit it to be used for spying on Americans with little or no relation to foreign powers or terrorist plots. Ashcroft claimed that the reform was needed because FISA had impeded efforts to track terrorists. The dispute was not over whether foreign agents should be tracked: no one in Congress was opposed to that. The issue was whether the feds could launch massive surveillance operations against a U.S. citizen on the pretext of fighting terrorism, even though there was no evidence of the citizen’s criminal wrongdoing. Congress acquiesced to Ashcroft’s demands.

Federal incompetence and Moussaoui

The USA PATRIOT Act changed the law to make it far easier to use FISA search warrants against Americans. During the PATRIOT Act mini-deliberations, the Justice Department claimed that the FISA restrictions had fatally delayed its efforts to secure a search warrant for Zacarias Moussaoui, the suspected “20th hijacker,” who was arrested in Minnesota on August 16, 2001. But, as a 2003 Senate Judiciary Committee report noted, the FBI had sufficient information to get a FISA wiretap before 9/11 but failed to do so because “key FBI personnel responsible for protecting our country against terrorism did not understand the law.” FBI agents in Minneapolis could also have easily gotten a regular search warrant from a federal judge — if they had not been hogtied by FBI headquarters.

FBI agents in Minneapolis asked FBI headquarters for permission to request a search warrant from a federal judge in Minnesota. FBI headquarters refused permission, instead insisting that the Minnesota agents file a FISA search request — which had to be handled by “experts” (who turned out to be nitwits) at FBI headquarters. FBI headquarters agents believed that, before a FISA wiretap could be granted, Moussaoui had to be linked to an organization that the U.S. government formally labeled as “terrorist.”

But that was not the case. Eleanor Hill, the staff director for the Joint Intelligence Committee investigation into pre-9/11 failures, observed,

The lesson of Moussaoui was that F.B.I. headquarters was telling the field office the wrong advice.
A 9/11 commission staff report concluded,

A maximum U.S. effort to investigate Moussaoui could conceivably have unearthed his connections to the Hamburg cell [of 9/11 hijackers]. The publicity about the threat also might have disrupted the plot.
Commission chairman Thomas Kean commented,

Everything had to go right for [the hijackers]. Had they felt that one of them had been discovered, there is evidence it would have been delayed.
But the FBI blew the Moussaoui investigation, perhaps costing thousands of Americans their lives.

The Moussaoui debacle was typical of how the feds botched FISA cases. A 2003 Senate report noted,

In the time leading up to the 9/11 attacks, the FBI and DOJ had not devoted sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized line agents.
The 9/11 commission staff reported,

Many FBI agents also told us that the process for getting FISA packages approved at FBI Headquarters and the Department of Justice was incredibly lengthy and inefficient. Several FBI agents added that, prior to 9/11, FISA-derived intelligence information was not fully exploited but was collected primarily to justify continuing the surveillance.
Besides, the intercepts often languished unused: “The FBI did not have a sufficient number of translators proficient in Arabic and other languages useful in counterterrorism investigations, resulting in a significant backlog of untranslated FISA intercepts by early 2001.”

FISA and the PATRIOT Act

The expansion of FISA-authorized surveillance in the PATRIOT Act was one of the clearest examples of rewarding federal incompetence and misconduct with greater power. In September 2000, the Justice Department notified the Foreign Intelligence Surveillance Court (FISC) that the FBI had made at least 75 false representations to the court about wiretaps. The court was so enraged that one senior FBI counter-terrorism official was forbidden to ever appear again before the court. A few months later, the Justice Department notified the court of another rash of false representations about how closely prosecutors were involved with FISA wiretaps. The Justice Department did not notify any member of Congress of its FISA-related misconduct, even though Congress has a statutory right and duty of oversight.

A few months after the PATRIOT Act was signed, Ashcroft proposed new regulations to “allow FISA to be used primarily for a law enforcement purpose.” The FISC judges unanimously rejected his power grab as contrary to federal law.

The Justice Department refused to provide senators with a copy of the FISC decision that rejected Ashcroft’s bid. Though the decision was a blunt rejection of his attempt to use FISA to unleash federal prosecutors to spy on Americans, the Justice Department believed that no one in Congress was entitled to a copy of the decision of the secret court.

The senators eventually got a copy of the decision directly from the court and released it to the public in August 2002. Ashcroft appealed the decision to the U.S. Foreign Intelligence Surveillance Court of Review — a special court that exists to hear cases in which the government loses in its first swing at a wiretap. The judges of this court (which had never met before) were picked by Supreme Court Chief Justice William Rehnquist, a jurist renowned for his minimalist interpretation of the Fourth Amendment.

The FISA appeals court met in secret and only the Justice Department was permitted to argue its side. Steve Aftergood, editor of the Federation of American Scientists’ Secrecy News, commented that the transcript of the hearing (released months after the fact) showed that “the judges generally assumed a servile posture toward the executive branch, even consulting the Justice Department on how to handle its critics.”

The FISA appeals court, in a November 2002 decision, unleashed the Justice Department and gave Ashcroft everything he wanted. He proclaimed that its decision “revolutionizes our ability to investigate terrorists and prosecute terrorist acts.”

The FISA appeals court decision encourages federal agents to seek FISA warrants even in cases where the links to terrorism or terrorist activity are very doubtful. American Civil Liberties Union lawyer Ann Beeson observed that the FISA appeals court decision “suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants.” Miami Attorney Neal Sonnett, chairman of an American Bar Association panel on terrorism law, observed that FISA “has now turned into a de facto domestic intelligence act. The line was blurred with FISA for a long time. And when [Congress] passed the PATRIOT Act, they wiped it out completely.”

Unfortunately, Americans are unlikely to learn how this domestic intelligence operation actually functions. Sen. Patrick Leahy (D-Vt.) proposed a bill entitled the Domestic Surveillance Oversight Act that would require that the Justice Department report the “aggregate number of FISA wiretaps and other surveillance measures directed specifically against Americans each year.” Leahy also sought to compel the Justice Department to reveal to Congress the secret rules by which the secret court operated. Because of staunch Justice Department opposition, Leahy’s measure was not enacted.

Breaking the law

Even though the FISA court is often a farce, providing only a façade of judicial procedure, any restriction on domestic spying was too much for the Bush administration. Or perhaps Bush believes that being obliged to request retroactive search warrants tarnishes his imperial majesty. It remains to be seen whether Congress or federal courts will hold the president liable for proclaiming that he is above the law.

Yet, despite the back-flipping bias of the FISA court, Bush would not bother seeking warrants for wiretaps of American citizens. He took a swing at critics shortly after he announced he was entitled to tap calls. Speaking after he had visited wounded soldiers in San Antonio, he declared, “The NSA program is one that listens to a few numbers called from the outside of the United States of known al-Qaeda or affiliated people.”

Except that the program also listens to calls from inside the United States to abroad. And, in some cases, it has wiretapped calls exclusively within the United States. And as for the notion “known al-Qaeda or affiliated people” — what is the Bush team’s definition of “affiliated”? Does it require something aside from being a Muslim? Newsweek reported that the warrantless program tapped 500 people a day.

The president was not content with being able to totally stack the deck: instead, he resented the indignity of being required to deal with the courts and to tacitly concede that the federal government does not have an unlimited right to surveil Americans.

Former White House counsel John Dean observed,

There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons.
Dean suggested that Bush left Tricky Dick in the dust: “Nixon’s illegal surveillance was limited; Bush’s, it is developing, may be extraordinarily broad in scope.”

The response of the American people and the American legal and political system to Bush’s warrantless wiretaps will be a bellwether for the future of American liberty.

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation. Send him email.

This article originally appeared in the March 2006 edition of Freedom Daily.

Supreme Court Ruling on Police Raids Endangers Citizens

Last week, the Supreme Court ruled in its 5-4 decision in the case of Hudson v. Michigan that when police conduct an illegal, no-knock raid, any evidence they seize in the raid can still be used against the suspect at trial, even though the raid was conducted illegally.

I’ve spent the last year researching these types of volatile, highly-confrontational, paramilitary raids for a forthcoming report for the Cato Institute. The decision in Hudson is almost certain to lead to more illegal no-knock raids, more mistaken raids on innocent people, and more unnecessary deaths, both of civilians and of police officers.

Experts on both sides of the ruling have debated the issue for a week now. I’d like to make another point. The Supreme Court split on this case, right down the middle. The four most liberal justices voted in favor of the defendant, while the five most conservative justices voted in favor of the police.

The Court’s "swing voter," Justice Kennedy, filed a middling concurrence that sided with the conservatives, but warned them not to take their line of argument any further, or they’d lose his vote. But the majority opinion in this case, written by Anthony Scalia, was not actually all that conservative. Here’s why:

The Rule of Law

As recently as 1995, the Court ruled in the case of Wilson v. Arkansas that the centuries-old common law notion that police should announce themselves before entering a private home was engrained in the Fourth Amendment. That is, it is an inherent part of the Constitution. The Court issued this ruling unanimously, including votes by Justices Thomas and Scalia.

In Hudson the Court didn’t overturn Wilson. The announcement requirement still exists. But the Court did take away the only realistic way of enforcing it, which is to punish police by barring evidence when they break it.

In his opinion, Scalia argued that there are better ways to punish police who break the rule, such as suing them. But both the state of Michigan and the U.S. government both acknowledged in their briefs in the case that they couldn’t come up with a single case where such a lawsuit had been successful.

In other words, with Hudson and Wilson, the Court has said not only is the requirement that police announce themselves before entering a private home law, it’s in the Constitution, the highest law in the land. Yet the Court has also said it’s not too concerned with enforcing that law.

The Rule of Law is a value held dear by most conservatives. Conservatives tend to loathe the fact that we have laws on the books that go unenforced. And rightly so. Unenforced law undermines respect for the law and for the criminal justice process. Yet that’s exactly what has happened with Hudson.

Originalism

The most puzzling part of Scalia’s opinion comes in a passage where he states that over the last half century, police have become more professional, and more likely to observe and respect our civil liberties. Therefore, according to Scalia, punishing police officers who break the law shouldn’t be of much concern.

Today, they’re less likely to break the law, and more likely to address and correct those who do internally. I don’t happen to agree (neither, apparently, does at least one of the sources he cites for this passage, who has since said Scalia misinterpreted his work).

But let’s assume Scalia is right. What he’s saying, then, is that things have changed. Police have become better trained and better educated. They are less violent and more cognizant of civil liberties. Therefore, we ought to interpret the Constitution differently – in this case removing the remedy of excluding evidence for search violations – to reflect those changes.

This is the very "living, breathing Constitution" argument the left often makes, and that usually drives conservatives batty. It’s an argument that is inconsistent with the originalism or "strict constructionism" conservatives claim to embrace.

The Castle Doctrine

The knock-and-announce rule has a common law tradition that goes back centuries. It is grounded in the "Castle Doctrine," which states that a man’s home is his castle, his place of asylum, and he has the right to defend it against intruders who would do him harm. The sanctity of the home is the same principle that, for example, led conservatives (and libertarians like me) to so loathe the eminent domain decision the Court issued in the Kelo v. New London case.

The knock-and-announce requirement held that when police have a warrant, the owner of a home ought to be given time to compose himself, come to the door, and submit to a peaceful search, and not incur the property damage, fright and possible violence of a forced entry.

Hudson obliterates the Castle Doctrine. It essentially gives police a pass to enter private homes without announcing. It thus makes it much more difficult for a man to adequately defend his home. When intruders force their way inside in the middle of the night, a waking homeowner -- particularly one who lives in a low-income, or high-crime area -- must now pause in the heat of the moment and ask himself, "what if it’s the police?"

Homeowners who understandably mistake police for criminal intruders and put up resistance risk injury, death, or prosecution (see the case of Cory Maye for one example of how these tactics are both dangerous to police and unfair to homeowners). The situation grows even more perilous when one considers that criminals have now caught on to the rising police raid trend.

In my research, I’ve found dozens of examples of criminals posing as raiding police officers to gain entry into a private home.

The most troubling thing about the Hudson case, then, is not that the Supreme Court’s most right-leaning justices are too conservative to uphold our civil liberties. It’s that when it comes to upholding our civil liberties, we can’t even count on them to be sufficiently conservative.


Radley Balko is a policy analyst for the Cato Institute specializing in "nanny state" and consumer choice issues, including alcohol and tobacco control, drug prohibition, obesity, and civil liberties. Separately, he maintains the The Agitator weblog. The opinions expressed in his column for FOXNews.com are his own and are not to be associated with Cato unless otherwise indicated.

FBI: Prison Guard Opens Fire On Feds Sent To Arrest Him

Three people were shot, two fatally, at a Tallahassee, Florida, federal detention center Wednesday as federal agents went to arrest six corrections officers, authorities said.

The six guards were being arrested in an investigation into allegations that guards were trading drugs for sex with female inmates, federal law enforcement sources said.

One of those being arrested opened fire, said Jeff Westcott, spokesman for the FBI's Jacksonville bureau.

Federal agents returned fire, killing the suspect, Westcott said. An agent with the Department of Justice's Office of Inspector General died in the shootout, he said. (Watch what may have prompted the gunfight -- 1:48)

A Bureau of Prisons official was wounded.

The victims' identities and details of the arrest warrants were not released.

The shooting occurred about 7:45 a.m. at a federal detention facility in Tallahassee. (See facility, map)

The Tallahassee facility holds mainly women, but includes an area holding men awaiting trial.

The facility was put on lockdown after the shooting, officials said.

CNN's Patrick Oppmann and Terry Frieden contributed to this report.

CNN.com

No Knock-Knock

Gamble Rogers, the late Florida folksinger and story-teller, used to spin a hilarious tale about the execution of what he called an "Alabama search warrant."

That, Rogers would say, is when the sheriff stands at the front door and knocks, whereupon the deputy standing at the back door yells "Come on in!"

But now the U.S. Supreme Court has spun a different kind of knock-knock joke, albeit not nearly so amusing. In this one, the sheriff doesn't even have to bother to knock. Just shout "Police!" and burst through the door.

The Fourth Amendment's prohibition against unreasonable searches of one's home simply doesn't mean much anymore. That's because this court seems less committed to protecting the constitutional rights of Americans than expanding the already fearsome authority of government to intrude upon our privacy.

In deciding, on a 5-4 vote, that police executing search warrants are no longer obliged to observe a "knock-and-announce" rule that has its roots in 13th century English common law, the court has fairly gutted the constitutional right of Americans to feel secure in the privacy of their own homes.

Indeed, so far as Justice Antonin Scalia, author of the majority opinion, is concerned, all that Fourth Amendment expectation really boiled down to was "the right not to be intruded upon in one's nightclothes." Reduced to such triviality, it was certainly not deemed to be of significant weight to offset the government's right to send squads of masked SWAT officers into private homes in the dead of night in search of evidence of criminal activity.

This decision for all practical purposes voids the "exclusionary rule" that prohibits the prosecution from using evidence that was seized illegally. It is also just one more indication that this new Supreme Court majority has a frightening bias toward government authoritarianism.

When even the formality of an "Alabama search warrant" is no longer deemed necessary, is the Fourth Amendment still worth the parchment it was printed on?

http://www.gainesville.com/apps/pbcs.dll/article?AID=200660620032&source=email

How US Hid The Suicide Secrets Of Guantanamo

After three inmates killed themselves, the Pentagon declared the suicides an act of 'asymmetric warfare', banned the media and went on a PR offensive. But as despair grows within the camp, so too does outrage mount at its brutal and secretive regime.


In Guantanamo Bay's Alpha Block, the night was like any other: sweltering and seemingly endless. Although the temperature was down to the high 70s outside, the block's steel roof and walls were radiating heat, and in the two facing rows of 24 cells it felt little cooler than it had at midday. 'The nights are worse than the days,' the British former prisoner Shafiq Rasul recalled yesterday. 'You hear the rats running and scratching. The bugs go mad and there's no air. Especially where that block is: there's no breeze whatsoever.'

According to Guantanamo's rules, a six-person team of military police should have been patrolling constantly, and as usual the bright neon lights stayed on. A guard should have passed each detainee's cell every 30 seconds. 'From the landing, you can see right into every cell,' said Rasul. 'They don't have doors, just gates made from wide-spaced mesh. There's no privacy. If you hang up a towel because you want to go to the toilet, they make you take it down.'

The high degree of surveillance has foiled dozens of previous attempts by prisoners to take their own lives. 'It happened in front of me several times. The soldiers would see what was happening and they were in the cell in seconds,' Rasul said. But somehow, in circumstances that the Pentagon has succeeded in keeping totally obscure, late on Friday, 9 June, three detainees, all weak and emaciated after months on hunger strike and being force-fed, managed to tease bedsheets through their cells' mesh walls, tie them into nooses and hang themselves. With the cells little taller than the height of a man, they stood no chance of breaking their necks: the only way they could die was slowly, by hypoxia.

'That would take at least four or five minutes, probably longer,' said Dr David Nicholl, consultant neurologist at Birmingham's Queen Elizabeth Hospital, who has been co-ordinating international opposition to Guantanamo by physicians. 'It's very difficult to see how, if the landing was being properly patrolled, they could have managed to accomplish it.'

Accomplish it, however, they did. And virtually simultaneously. A little before midnight the bodies of Manei Shaman Turki al-Habadi, 30, and Yasser Talal al-Zahrani, 21, both from Saudi Arabia, and of a Yemeni, Ali Abdullah Ahmed, 29, were found on Alpha Block. How long they had been like that, the Pentagon will not disclose. Their mouths were stuffed with cloth, apparently to muffle any cries.

As often before in its four-and-a-half-year propaganda war over Guantanamo, the US military and its masters in Washington decided that the best means of defence to what looked - at best - like a case of criminal negligence was to go on the offensive. The dead men, said Guantanamo's commander, Navy Rear Admiral Harry Harris, when the news broke last Saturday, had 'no regard for human life, neither ours nor their own. They are smart, they are creative, they are committed. I believe this was not an act of desperation, but an act of asymmetric warfare against us.'

Colleen Graffy, a senior State Department official who recently visited London to make the case for Guantanamo with the UK media, called the suicides a 'good PR move' and 'a tactic to further the jihadi cause'. The US government tried to distance itself from Graffy's remarks. But early on Sunday The Observer talked to the camp's top Washington spin doctor, Lieutenant Commander Jeffrey Gordon, an official in Defence Secretary Donald Rumsfeld's office and the Pentagon's chief press officer. According to Gordon, whatever the outcome of the investigation now being conducted by the Naval Criminal Investigative Service, there was no need to regret the deaths. All three men, Gordon said, had been dedicated terrorists: 'These guys were fanatics like the Nazis, Hitlerites, or the Ku Klux Klan, the people they tried at Nuremberg.'

He went on to make specific allegations against each: Ahmed had been a 'mid-to-high-level al-Qaeda operative' with key links to Abu Zubaydah, an al-Qaeda leader captured in 2002; Habadi had been a 'militant recruiter' who worked with a second tier group called Jama'at Tabligh, and knew of operations in Qatar and Pakistan. As for Zahrani, he was a 'frontline Taliban fighter' who had played a prominent part in the November 2001 prison uprising in Mazar-e-Sharif, in which a CIA man died.

All this may be true. On the other hand, they had not been charged with anything. Questionable as it often is and consisting of statements made after torture or coercion, the Pentagon has disseminated some evidence against more than 300 Guantanamo detainees, in federal court filings and at internal camp boards that reviewed their detention. Against the three suicides, it has presented nothing.

Meanwhile, the information available suggests that the explanation of the deaths rejected by Harris - that the men tried to kill themselves through despair and succeeded through the incompetence of his staff - remains more plausible.

Rasul said: 'I was shocked by what happened, though not surprised, because I saw it almost happen so often. It was always scary: I would see people deteriorating mentally in front of my eyes until they tried to take their own lives, and you always thought: "That could be me". There were even times when I thought about it myself, but I wanted to be strong for my family. When I did, believe me, it wasn't because I was trying to hurt the United States, but on days when I'd just been told I'd never see England again, and that I was a terrorist, and when I denied it they wouldn't listen.'

The suicides triggered new calls to close Guantanamo, from the Lord Chancellor, Lord Falconer, the European Union and others. But the Pentagon will go to considerable lengths to block any independent scrutiny of what happened.

News of the suicides broke while I was flying to Washington from London, in order to travel to Guantanamo on a military flight next day and cover a military commission tribunal. A message on my mobile phone - from a fellow reporter, not the Pentagon - said that both had been cancelled. Thus I made the first of many calls to Jeffrey Gordon. At first, he could not have been more helpful. To enter Guantanamo, he said, one needed an 'area clearance', and because mine had been issued for the tribunal it was no longer valid. However, the press office at Guantanamo or Southern Command in Miami might be able to issue a new one, Gordon said. Clearance was not, he pointed out, the only problem. Now that the military plane had been cancelled, the only way to reach Guantanamo was on scheduled 18-seat flights from Florida and Kingston, Jamaica. They tended to be fully booked well in advance.

I teamed up with another British journalist, David Jones of the Daily Mail, to organise clearance and investigate flights. By the end of Sunday, we thought we were on our way. Jones found a private charter firm willing to fly us to the camp from Kingston. Guantanamo's head of public affairs, Commander Robert Durand, explained in an email he was seeking authorisation from Harris. 'He's a pretty open sort of guy,' Durand said, 'and I can't see any reason for not granting you clearance since you were coming already.' At 7.30pm one of Durand's staff phoned to say there were new clearances. He faxed them a few minutes later.

Next day Jones and I got up at 4am to fly to Miami, where we checked with Guantanamo one last time that everything was in order and got on a plane to Kingston. There, at check-in for our private flight, the manager was apologetic. 'Guys, I'm so sorry. Jeffrey Gordon called me from the Pentagon five minutes ago. Your clearances have been revoked.' Over the next 48 hours, I had several heated conversations and email exchanges with Gordon. At first he was apologetic: the new clearances had been 'a mistake' and he would try to get us a refund on the plane costs. Later he became more aggressive: forgetting that he had advised me to approach Durand at Guantanamo, he claimed that we tried to 'get round' the Pentagon by obtaining clearance from a clerk. His last email stated that our conduct had been 'ethically questionable, at best'. It was left to Durand to shed a little light. For the time being, he said, his ability to issue clearances had been removed and assumed by Rumsfeld's office alone.

Meanwhile, three US reporters at the base were ordered to leave. According to a Pentagon spokesman quoted by the US media, the reason was that two barred British reporters - us - had threatened to sue if the Americans were allowed to stay. This was, of course, untrue.

Closing Guantanamo to the media meant there were no reporters there as the Naval Criminal Investigative Service team went about its work; none when pathologists conducted post mortem examinations; and none last Friday when, after a Muslim ceremony conducted by a military chaplain, the first body - Ahmed's - was prepared to be flown home. It was also impossible to gauge the impact of the deaths on the 460 inmates.

Yet our bizarre experience raises a fundamental question: when it comes to Guantanamo, can the world believe a single word that Gordon and his numerous cohorts say? There is, to say the least, an alternative explanation for the three Guantanamo deaths. Since early 2003, when the Red Cross issued the first of many reports stating that inmates were experiencing high levels of depression, there has been mounting evidence that detention there has wrought havoc on some prisoners' mental health. It is not so surprising: most prisoners get just two 30-minute periods out of their cells - the size of a double bed - each week, except when being interrogated. Some have endured this since 2002, and have no idea when, if ever, they may leave.

By the time of my own visit in October 2003, a fifth of them were on Prozac and there had been so many suicide attempts - 40 by August 2003 - that the Pentagon had reclassified hangings as 'manipulative self-injurious behaviours'. Cannily, perhaps, it has refused to give exact statistics on how many SIBs have occurred, claiming that since the reclassification there have been (until last week) only two genuine attempted suicides.

Tarek Dergoul, another freed British former detainee, knew two of the dead men well. 'I was next to or opposite Manei [Habadi] for weeks, maybe months,' he said, 'and like me his morale was high. He was always up for a protest: a hunger strike or a non-co-operation strike. He used to recite poetry, not just Arabic, but English - he knew chunks of Macbeth and he taught me how to read the Koran correctly. When you go through that sort of experience with someone, you really get to know them. I just can't believe he would take his own life. He would have had to be really desperate.' Likewise, Dergoul said, Zahrani was 'a person everyone loved. It's offensive to me to say he could have killed himself.' Apart from anything else, all three men would have been deeply aware of Islam's prohibition of suicide.

However, the men may well have been so desperate that they ignored the prohibition - even if, as seems likely, they co-ordinated their deaths in the hope of increasing their political impact. Many lawyers who have visited clients at Guantanamo have spoken eloquently of their despair: this year a prisoner tried to kill himself in front of his US attorney, somehow managing to open his veins, covering himself in blood, as the lawyer watched in horror, unable - because of the screen that separated them - to intervene.

Dergoul also suggested how the three may have been able to kill themselves undetected. Sometimes, he said, instead of patrolling the guards 'used to sit in their room at the end. It's a long walk from end to end of the block and some nights they didn't feel like it: they'd sit in their room, smoking and playing cards. You'd need toilet paper or something and you'd yell "MP, MP!" But they wouldn't come - it could be as long as an hour.'

One might, just about, imagine such a scene in a British prison. One can also envisage what might happen if three men committed suicide on the same landing at the same time: public inquiries, sackings, outrage. All three had been on hunger strike, with few breaks, since the middle of last summer. This meant that, four times a day, they were strapped down in restraining chairs so that they could not move their limbs and force-fed through nasal tubes, inserted and removed each time - a process the Pentagon's own court documents state causes bleeding and nausea. It is not hard to see why that may have made them depressed.

According to newly declassified testimony by another prisoner shortly before the suicides, a guard recently told him: 'They have lost hope in life. They have no hope in their eyes. They are ghosts and they want to die. No food will keep them alive right now.' This prisoner, the former British resident Shaker Aamer, told his lawyer, Clive Stafford Smith, that the three dead men and other hunger strikers were so ill whenever their feeds contained protein that it went 'right through them' causing severe diarrhoea.

Last week Rumsfeld got what he wanted: the removal of media scrutiny from Guantanamo's deepest crisis. Potentially embarrassing, perhaps very damaging, headlines have been averted, and tomorrow, with the most sensitive tasks in the wake of the deaths complete, Guantanamo's public affairs office will resume its chaperoned tours. But the bigger costs of shutting out the daylight are making themselves felt.

On BBC1's Question Time last week, Falconer called the camp 'intolerable and wrong', adding that it acted as a recruiting agent for those who would attack all our values. Proving his point next day, some former Guantanamo detainees suggested the three dead men had been murdered, a claim echoed by their families and the government of Yemen next day.

The Pentagon response to the suicides was characterised by panic, smears and blatant obstruction. One might be forgiven for thinking that its vehement denials lacked a little weight.

David Rose
Sunday June 18, 2006
The Observer


http://observer.guardian.co.uk/world/story/0,,1800218,00.html?gusrc=rss

Abolish the Death Penalty

Message from Amnesty International USA

Dear Felix,

You are one of Amnesty International USA's most dedicated online activists and we need you to protest a terrible injustice.

Did you know that at one time there was no death penalty in the United States? The Supreme Court ruled that the death penalty was arbitrary, capricious and discriminatory - as random as being struck by lightning. But things changed with the Gregg v. Georgia ruling on July 2, 1976 and the death penalty was reinstated. In the 30 years since the Gregg decision over 1,000 people have been executed and we have become increasingly aware of how arbitrary, capricious and discriminatory our death penalty system still is.

Raise your voice and call for an end to this outmoded, outlandish and outrageous system of injustice on the 30th anniversary of the Gregg decision.

Three things we're asking you to do:

Write a letter to the editor,
Organize an event with your friends and family, or
Organize a public event with other concerned citizens.
How? Find out at www.amnestyusa.org/abolish/gregg/act.html. We'll give you a special grassroots organizing kit, a study guide on the Gregg decision, and a way to promote your local events.

We know this is harder than just clicking and sending an email. But we believe that you have the will and heart to go the extra mile, and will stand with us to uphold our basic human rights.

In solidarity,
Sue Gunawardena-Vaughn
Director, Program to Abolish the Death Penalty
Amnesty International USA