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Group Wants Courts to Play ‘Keep Away’ from Torture Lawyers February 23, 2010

Posted by rogerhollander in Criminal Justice, Torture.
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Published on Monday, February 22, 2010 by Raw Storyby Sahil Kapur

Critics are working to disbar Bush administration “torture architects” from practicing law in courts again, and if that doesn’t work they’re enlisting attorneys to move to disqualify them as judges.

[Ninth Circuit Court of Appeals Judge Jay Bybee (pictured) and fellow author of Bush administration torture memos John Yoo were last week found guilty of "professional midconduct" and "poor judgment" for ignoring established case law. They were nevertheless cleared of any criminal charges. (File)]
Ninth Circuit Court of Appeals Judge Jay Bybee (pictured) and fellow author of Bush administration torture memos John Yoo were last week found guilty of “professional midconduct” and “poor judgment” for ignoring established case law. They were nevertheless cleared of any criminal charges. (File)

Ninth Circuit Court of Appeals Judge Jay Bybee and fellow author of Bush administration torture memos John Yoo were last week found guilty of “professional midconduct” and “poor judgment” for ignoring established case law. They were nevertheless cleared of any criminal charges. 

The Disbar Torture Lawyers campaign, which is part of a consortium that boasts over 120 transparency and watchdog groups, is now working to disbar Bybee and others complicit in advocating illegal interrogation methods.

“Judge Bybee can no longer pretend to be fair, impartial, or to exercise good judgment,” said attorney and campaign spokesperson Kevin Zeese in a statement. “He has been found to possess all the qualities that people do not want in a judge – bias, poor judgment, predetermination, failure to follow established law, and professional misconduct.”

DisbarTortureLawyers.com, a project of Velvet Revolution, states as its guiding principle, “Torture is illegal under both United States and international law” and prohibited as “cruel and unusual punishment” under the Eighth Amendment.

The group has filed complaints to sanction Bybee and remove him from his judge post, backed with specific language from the Department of Justice’s Office of Personal Responsibility that details his wrongdoings.

“No plaintiff or defendant should be subjected to the authority of a judge who has been so thoroughly discredited,” said Zesse, who is also urging lawyers and their clients to move to disqualify Bybee.

“We call on every plaintiff and defendant whose case is assigned to Judge Bybee to demand that their lawyer file a motion to disqualify him, and if the lawyer refuses, to take action against the lawyer for failing to protect their interests and the integrity of the judicial process.”

Also targeted in the campaign are Bybee’s fellow torture memo author John Yoo and former Attorney General Alberto Gonzales. The group intends to work with and support Congress in taking further steps to sanction these individuals and disbar those who are still working as judges.

Rep. John Conyers (D-MI) has announced plans to hold House Judiciary Committee hearings on the Bush administration lawyers whose legal memos justified the use of torture on terrorism detainees.

Last year, John Podesta, a leader of President Obama’s transition team and former chief of staff to President Bill Clinton, said Bybee should be impeached.

There “is a distinction between going back and prosecuting in the criminal courts the actors who were involved in these memos and letting Judge Bybee continue to sit on a court one step removed from the Supreme Court,” Podesta said. “He’s acting and listening to cases and making judgments of others, and we know that he authorized things that were illegal under U.S. law and violated the U.S. obligations under international treaties.”

Podesta heads the Center for American Progress Action, a liberal think tank.

© 2010 Raw Story

DOJ Report on Torture Memo: Yoo Said Bush Could Order Civilians “Exterminated” February 20, 2010

Posted by rogerhollander in Criminal Justice, Torture.
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(Roger’s note: Harry Truman famously said, “The buck stops here.”  This is a rare admission of accountability coming from government.  The entire cover up of the notorious and illegal Cheney/Bush torture program, including the conviction of the likes of Lynndie England at Abu Ghraib and focusing on “rogue” CIA agents, is a typical government maneuver to shirk ultimate responsibility.  Many of us thought the OPR report might finally give some satisfaction at a higher level, but the buck has been passed from President Obama to Attorney General Holder to Associate Deputy Attorney General David Margolis, who has put a kibosh on the findings that would have led to sanctions against Yoo and Bybee.

 

[Oct.9, 2009: Yoo and Bybee submit their responses to final report to Associate Deputy Attorney General David Margolis, who is tasked with reviewing OPR’s conclusions.                                                                                                                    http://www.mainjustice.com/2010/02/19/a-timeline-of-the-opr-report/ ]

My question is: who “tasked” David Margolis to whitewash the OPR report’s conclusions?  Call my cynical, but could it have been Holder who was told by Obama to find a reliable subaltern to do the dirty deed?

I would also point out that the jurists who provoided the legal framework for Hitler’s halocaust were subject to accountability by the Nuremberg Tribunal along with the high level government officials who carried out the genocide.  We can be thankful that the likes of Obama and Holder were not calling the shots then, which would have resulted in some low level “rogue Nazis” convicted and punished for the extinction of millions of Jews, Gypsies, Gays, communitsts, etc. while Hess, Goring, Bormann and the rest of the Hitler A Team got off scott free.)

 

Friday 19 February 2010

by: Jason Leopold, t r u t h o u t | Report

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(Image: Lance Page / t r u t h o u t; Adapted: amarine88, Bebopsmile, dog ma)

For background on Jason Leopold’s extensive work on the Yoo/Bybee torture memo report please see here, here, here, and here. Leopold will also be writing a through analysis of the voluminous report this weekend.

A long-awaited report into the legal memos former Justice Department attorneys John Yoo and Jay Bybee prepared for the Bush administration on torture was released Friday afternoon and concluded that the men violated “professional standards” and should be referred to state bar associations where a further review of their legal work could have led to the revocation of their law licenses. 

But career prosecutor David Margolis, who reviewed the final version of the report, changed the disciplinary recommendations to “exercised poor judgment.” [There are three versions of the report, all of which can be found here.]

That means Yoo and Bybee will not be punished for having fixed the law around Bush administration policy that allowed the CIA to subject suspected terrorists to torture techniques, such as waterboarding, beatings, and sleep deprivation, as the report notes.

Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge. Former Justice Department official Steven Bradbury also authored several torture memos and was criticized in the OPR report. Investigators said they had “serious concerns about his analysis.” But the report did not charge him with ethical violations.

Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department’s criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation.

According to a January 5 memo Margolis sent to Attorney General Eric Holder, the Justice Department’s Office of Professional Responsibility (OPR) issued a final report on July 29, 2009 and “concluded that former Office of Legal Counsel (OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to provide ‘thorough, candid, and objective’ analysis in memoranda regarding the interrogation of detained terrorist suspects.”

Yoo specifically was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

The report says that Yoo believed that George W. Bush’s Commander-in-Chief powers gave him the authority to unilaterally order the mass murder of civilians.

In the final version of the report, an OPR investigator questioned Yoo about what he referred to as the “bad things opinion,” where Yoo discussed what the president could do during wartime.

“What about ordering a village of resistants to be massacred?” an OPR investigator asked Yoo. “Is that a power that the president could legally—”

“Yeah,” Yoo said.

“To order a village of civilians to be [exterminated]?” the questioner replied.

“Sure,” Yoo said.

But Margolis, who suggested Yoo and Bybee’s flawed legal work was due to efforts to prevent another 9/11, said he was “unpersuaded” by OPR’s “misconduct” conclusins and declined to endorse its findings.

An earlier version of the report rejected that line of reasoning.

“Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear,” says the earlier draft of the report from OPR head Mary Patrice Brown. Her report, like the original draft, was sharply critical of the legal work that went into the torture memos and found that it lacked “thoroughness, objectivity and candor.”

“OPR’s own framework defines ‘professional misconduct’ such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct,” Margolis wrote in the 69-page memo. “I am unpersuaded that OPR has identified such a standard. For this reason…I cannot adpot OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.”

Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration’s torture policy, Margolis said he did “not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions.”

“While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” Margolis added. 

Margolis concluded his review, stating that “these memos contained some significant flaws.

“But as all that glitters is not gold, all flaws do not constitute professional misconduct,” he wrote. “The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the Department will make no referral.”

Margolis described himself in the memo as a “Department of Justice official who [beginning in the 1990s] has resolved challenges to negative OPR findings against former Department attorneys, most often in the context of proposed bar referrals.”

Yoo’s attorney, Miguel Estrada, said in an October 9, 2009 rebuttal to the final version of the report that “this perversion of the professional rules and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror.”

“But policy disputes are for the ballot box, not for the bar,” Estrada said. “Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security.”

Estrada claims that Yoo and Bybee were well aware of what the “CIA wanted” in the areas of subjecting detainees to brutal torture techniques.

“Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so,” he said. 

OPR investigators noted that during the course of their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said that “most” of Yoo’s emails they sought during the critical time period the memos were drafted prior to August 2002 “had been deleted and were not recoverable.”

House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing to discuss the findings “shortly.”

In a statement accompanying the report, Conyers said the report makes clear that the torture memos “were legally flawed and fundamentally unsound.”

“Even worse,” Conyers said. “It reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this.”

Senate Judicary Chairman Patrick Leahy also condemned the findings and announced that he will hold a hearing on the report’s findings next Friday. In a statement, Leahy said the report “is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees.”

“The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country,” Leahy added. “I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.”

The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached and for Holder to order a criminal probe headed by a special prosecutor.

In a statement, CCR said the report makes it “makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program.”

“Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately,” CCR aaid. “We call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command.”

Jameel Jaffer, director of the ACLU’s National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”

“It also makes clear that the investigation initiated by the Justice Department last year, which focuses on ‘rogue’ interrogators, is too narrow,” Jaffer added. “Interrogators should be held accountable where they violated the law, but the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes. The Justice Department should immediately expand its investigation to encompass not just the interrogators who used torture but the senior Bush administration officials who authorized and facilitated it.”

Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit newsjunkiebook.com for a preview. 

Obama’s Health Care Waterloo June 19, 2009

Posted by rogerhollander in Barack Obama, Health.
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Dave Lindorff

www.opednews.com, June 19, 2009

The Obama administration and the Congressional Democrats are finally hitting the inevitable wall that was bound to confront them because of the president’s congenital inability to be a bold leader, and because of the party’s toxic decades-old decision to betray its working class New Deal base in favor of wholesale corporate whoredom.

The wall is health care reform, which both Barack Obama and the Democratic Party had hoped would be the ticket for them to ride to victory in the 2010 Congressional elections and the 2012 presidential election.

But you cannot achieve the twin goals of reducing health care costs and providing access to health care to 50 million uninsured people, while leaving the profit centers of the current system—doctors, hospitals and the health insurance industry—in charge and in a position to continue to reap profits.

Watching President Obama address the American Medical Association was a cringe-inducing experience as he assured the assembled doctors he was not going to expand Medicare payments “broadly” to cover all patients, or end the current “piece-work reimbursement” system that has so enriched physicians, or as he told them that savings would “not come off your backs.” It was particularly cringe-inducing when he told the AMA that he knew that making money was not why its members were in the profession, saying, “That is not why you became doctors. That is not why you put in all those hours in the Anatomy Suite or the O.R. That is not what brings you back to a patient’s bedside to check in or makes you call a loved one to say it’ll be fine. You did not enter this profession to be bean-counters and paper-pushers. You entered this profession to be healers – and that’s what our health care system should let you be. “

Oh please. I know there are plenty of wonderful doctors who are dedicated to their patients and to patient care. But I also know plenty of doctors who have told me how half their classmates in medical school were mainly in it for the money, and that study halls and cafeterias of American med schools echo with the conversations about what can be made working in particular specialties. Not to mention the corrupt and insidious profit-sharing arrangements doctors enter into with labs, CAT-Scan and MRI test centers, pharmaceutical companies and other businesses, to earn profits by sending patients for unnecessary tests and treatments.

One can only imagine what he would be saying to insurance industry executives about his “reform” plans.

Because Obama and Congressional Democrats are unwilling to cut themselves off from the lucrative campaign-funding bonanza that is the health care industry, they cannot address seriously either the cost or the access crisis that plagues health care in the US, and that makes health care in this country cost 20 percent of GDP—twice what it costs in any other modern nation on a per capita or GDP basis, and that still leaves one in six Americans without ready access to even routine health care.

The answer to this crisis is obvious: a single-payer “socialized” system, in which you still have private doctors, and private or publicly run hospitals, but where the government sets the payment rates for treatment, and provides all compensation to health care providers.

If Democrats in Congress were serious about health care reform, they would immediately order the Congressional Budget Office to conduct a cost study of instituting such a program—a study that would include an estimate of the savings to individuals and employers if health care costs were lifted entirely off their backs (because obviously it would require considerable new government revenue to fund a single-payer program, but that’s only half the equation—the other half, the savings, is simply ignored by critics and doomsayers on the right and in the health care industry). Instead, Obama and the Democratic Congress are studiously avoiding even allowing any mention of the single-payer option. (A New York Times report today on the various health care plans working their way through Congress, and coming out of the White House, completely blacked out any mention of a single-payer bill in the House authored by Rep. John Conyers (D-MI), chairman of the House Judiciary Committee, which the House leadership has prevented from even getting a token hearing.)

Obama’s unwillingness to lead on this issue will doom his health care plan. There is obviously no way Congress is going to shake off its corrupt leech-like attachment to corporate sponsors and their cash-spreading lobbyists, but had the new president wanted to make a historic mark and cruise to victory in 2012, he could have, like President Lyndon Johnson before him in his campaign for Medicare in 1965, put himself solidly behind a single-payer plan and made the case that it could cut America’s collective health bill in half while opening the door to every American.

Instead, he’s likely to end up with worse than nothing—that is with even more uninsured Americans come 2012, and with health care costs moving up as a share of GDP—and could well find himself out of a job. The policy that his handlers, like White House Chief-of-Staff Rahm Emanuel, had conceived of as Obama’s ticket to re-election, health care reform, could well prove instead to be his Waterloo.

That is if his adoption of a policy of expanded war in Afghanistan—another example of a failure to lead—doesn’t prove to be this president’s bigger policy disaster.

___________________

DAVE LINDORFF is a Philadelphia-area journalist. He is author of “Marketplace Medicine: The Rise of the For-Profit Hospital Chains” (Bantam Books, 1992), and most recently of “The Case for Impeachment” (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net

Baucus to Meet with Single-Payer Advocates June 2, 2009

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by John S. Adams

HELENA – Sen. Max Baucus is set to meet with five single-payer health care advocates in Washington, D.C., this week.

 

[Senate Finance Committee Chairman Max Baucus, D-Mont., talks with reporters after a closed-door committee meeting on financing an overhaul of the health care system, on Capitol Hill in Washington, Wednesday, May 20, 2009. (AP Photo/Manuel Balce Ceneta)]Senate Finance Committee Chairman Max Baucus, D-Mont., talks with reporters after a closed-door committee meeting on financing an overhaul of the health care system, on Capitol Hill in Washington, Wednesday, May 20, 2009.(AP Photo/Manuel Balce Ceneta)

Baucus, as chair of the Senate Finance Committee, has made health care reform his top priority this session. However, Baucus has consistently said single-payer – a system in which the federal government acts as the nation’s sole health insurance provider – is off the table. 

“For more than a year, Senator Baucus has met with thousands of people, representing hundreds of views on how to reform our health care system,” Baucus spokesman Ty Matsdorf stated in an e-mail. “This meeting is no different. Max hopes to talk, and listen, to these folks totry and find the best way to make sure every Montanan has access to quality, affordable health care.”

Last week, members of Baucus’ staff held 20 listening sessions across the state on health care reform. At several of those meetings, Montanans expressed anger over Baucus’ steadfast refusal to consider a single-payer option.

Last month Baucus had 13 protesters removed from Senate Finance Committee hearings after the protesters demanded that single-payer advocates be given a seat at the table during health care reform hearings.

According to the Web site SinglePayerAction.org, Baucus will meet with Dr. David Himmelstein, associate professor of medicine at Harvard Medical School and co-founder of Physicians for a National Health Program (PNHP); Dr. Marcia Angell, senior lecturer, Harvard Medical School and former editor-in-chief of the New England Journal of Medicine; Dr. Oliver Fein, associate dean, Cornell Weill Medical School and president of PNHP; Rose Ann DeMoro, executive director of the California Nurses Association; and Geri Jenkins, president of California Nurses Association.

Angell said the group plans to urge Baucus to give serious consideration to Congress’ two primary single-payer bills, S. 703, by Sen. Bernie Sanders, I-Vt., and H.R. 676, by Rep. John Conyers, D-Mich.

“We will make a case that there should be full hearings on Sanders’ bill, and we’ll make the case that the (Congressional Budget Office) should cost-out the Sanders and Conyers bills,” Angell said in an interview Monday. “We’ll make the case that single-payer advocates should have a chance to meet with the president. We will argue for holding public hearings on health reform that include single payer witnesses.”

Matsdorf said the June 3 meeting was scheduled prior to last week’s well-attended health care listening sessions, but Angell said she believes the pressure Montanans put on Baucus in recent weeks helped open the door for Wednesday’s meeting.

“I think Sen. Baucus may be surprised at the amount of push-back he has gotten for just ruling (single-payer) off the table,” Angell said. “It may indicate that he’s starting to feel pressure, and that’s all for the good.”

 

Copyright ©2009 Great Falls Tribune

Backlash grows against Obama’s preventive detention proposal May 25, 2009

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Uncategorized.
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Glenn Greenwald
www.salon.com, May 25, 2009
(updated below – Update, Update II )
The backlash against President Obama’s extraordinary proposal for indefinite “preventive detention” — already widespread in the immediate aftermath of his speech — continues to grow.  On Friday, Sen. Russ Feingold sent a letter (.pdf) to Obama which, while praising some aspects of his speech, vowed to hold hearings on his detention proposal, and in the letter, Feingold rather emphatically highlighted the radical and dangerous aspects of Obama’s approach:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.
While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.  It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold’s last point — that the more Obama embraces radical Bush/Cheney polices, the more entrenched they become as bipartisan consensus — is critically important, and extends to other policies as well, from the use of state secrets to block judicial review of executive branch lawbreaking, the concealment of evidence of government crimes, the veneration of “looking-forward political harmony” over the rule of law in cases of extreme government lawbreaking, and the denial of habeas corpus rights to individuals we abduct and transport to a war zone (such as Bagram).
On Twitter on Friday, Rachel Maddow pointed to the civil liberties questionnaire from Charlie Savage which Obama answered during the Democratic primary and asked rhetorically:  “This is the same guy now proposing ‘prolonged detention’ without trial?”  The New York Times‘ William Glaberson wrote that Obama’s detention policy “would be a departure from the way this country sees itself”; observed that “in some countries, it is called ‘administrative detention,’ a designation with a slightly totalitarian ring”; and quoted the Center for Constitutional Rights’ Michael Ratner as pointing out that “holding detainees domestically under a new system of preventive detention would simply ‘move Guantánamo to a new location and give it a new name.'”  And on Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama’s “counter-terrorism” policies (National Review‘s Rich Lowry:  “it’s kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it’s wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism”).
It’s a bit difficult to claim that what Obama is proposing is nothing new, nothing out of the ordinary, given that his own White House Counsel just last February told The New Yorker‘s Jane Mayer that it would be “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law.”  As acknowledged by two of the leading proponents of preventive detention — Bush OLC lawyer Jack Goldsmith and Obama’s Deputy Solicitor General Neal Katyal — the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as “prisoners of war” (since some of them, by Obama’s own description, will get trials in real courts and others in military commissions), but rather, to give “the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates” (h/t EJ).  I defy anyone to re-read that description of what this “preventive detention” system does and then claim that what is being described is a “justice system” in any meaningful sense of that term.
* * * * * 
On Friday, I spoke with the ACLU’s Ben Wizner about these issues and the transcript is here.
 
UPDATE:  In this morning’s New York Times, the aforementioned Charlie Savage examines Obama’s choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies — denial of habeas rights at Bagram, revised military commissions, preventive detention — places Obama on what Savage called “his own collision course with the court.”
As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush’s executive power assertions (which were almost invariably 5-4 decisions against Bush).  Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.  
Savage examines the record, which reveals that one leading candidate — Seventh Circuit Court of Appeals Judge Diane Wood — has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama’s just-announced plan for military commissions (“‘the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,’ [Wood] wrote”).  By contrast, Obama’s Solicitor General — Elena Kagan — has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush’s OLC circa 2004.
That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed — all in order to ensure that the Court approves of his “counter-terrorism” policies — simply underscores the irony of what Obama is doing in this area.
 
UPDATE II:  When he introduced his proposal for preventive detention during  Thursday’s speech, Obama said he wants to “work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.”  But as CQ reports today (h/t EJ), key members of his own party are baffled by how any such preventive detention system could ever possibly be consistent with the Constitution:

President Obama may not get a lot of help from Congress in designing the detention system he says he wants: something that can hold people who haven’t committed any terrorists acts, but probably will, in a way that’s consistent with the Constitution.
So far, congressional Democrats have no idea how he can do that — which pretty much leaves him with the burden of figuring it out himself. . . .
The problem is, the congressional Democrats he’d consult on the issue don’t seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.
“I don’t know,” said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. . . .
Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution” . . . .
“That was one of the troubling moments in his speech, which was generally very strong on the rule of law,” said Sarah Mendelson, director of the Human Rights and Security Program at the Center for Strategic and International Studies. “Either you have committed a crime, and we’re prosecuting you, or you haven’t. I know there’s no silver bullet, believe me, but I think he’s got some mixed messages.”

If incarcerating people with no charges and no trial indefinitely — while making clear that the imprisonment will likely last decades — isn’t unconstitutional, then it’s hard to imagine what would be.
 
 

 

Backlash grows against Obama’s preventive detention proposal May 25, 2009

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice.
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Glenn Greenwald

www.salon.com, May 25, 2009

(updated below – Update II)

The backlash against President Obama’s extraordinary proposal for indefinite “preventive detention” — already widespread in the immediate aftermath of his speech — continues to grow.  On Friday, Sen. Russ Feingold sent a letter (.pdf) to Obama which, while praising some aspects of his speech, vowed to hold hearings on his detention proposal, and in the letter, Feingold rather emphatically highlighted the radical and dangerous aspects of Obama’s approach:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.  It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold’s last point — that the more Obama embraces radical Bush/Cheney polices, the more entrenched they become as bipartisan consensus — is critically important, and extends to other policies as well, from the use of state secrets to block judicial review of executive branch lawbreaking, the concealment of evidence of government crimes, the veneration of “looking-forward political harmony” over the rule of law in cases of extreme government lawbreaking, and the denial of habeas corpus rights to individuals we abduct and transport to a war zone (such as Bagram).

On Twitter on Friday, Rachel Maddow pointed to the civil liberties questionnaire from Charlie Savage which Obama answered during the Democratic primary and asked rhetorically:  “This is the same guy now proposing ‘prolonged detention’ without trial?”  The New York Times‘ William Glaberson wrote that Obama’s detention policy “would be a departure from the way this country sees itself”; observed that “in some countries, it is called ‘administrative detention,’ a designation with a slightly totalitarian ring”; and quoted the Center for Constitutional Rights’ Michael Ratner as pointing out that “holding detainees domestically under a new system of preventive detention would simply ‘move Guantánamo to a new location and give it a new name.'”  And on Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama’s “counter-terrorism” policies (National Review‘s Rich Lowry:  “it’s kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it’s wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism”).

It’s a bit difficult to claim that what Obama is proposing is nothing new, nothing out of the ordinary, given that his own White House Counsel just last February told The New Yorker‘s Jane Mayer that it would be “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law.”  As acknowledged by two of the leading proponents of preventive detention — Bush OLC lawyer Jack Goldsmith and Obama’s Deputy Solicitor General Neal Katyal — the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as “prisoners of war” (since some of them, by Obama’s own description, will get trials in real courts and others in military commissions), but rather, to give “the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates” (h/t EJ).  I defy anyone to re-read that description of what this “preventive detention” system does and then claim that what is being described is a “justice system” in any meaningful sense of that term.

* * * * * 

On Friday, I spoke with the ACLU’s Ben Wizner about these issues and the transcript is here.

 

UPDATE:  In this morning’s New York Times, the aforementioned Charlie Savage examines Obama’s choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies — denial of habeas rights at Bagram, revised military commissions, preventive detention — places Obama on what Savage called “his own collision course with the court.”

As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush’s executive power assertions (which were almost invariably 5-4 decisions against Bush).  Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.  

Savage examines the record, which reveals that one leading candidate — Seventh Circuit Court of Appeals Judge Diane Wood — has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama’s just-announced plan for military commissions (“‘the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,’ [Wood] wrote”).  By contrast, Obama’s Solicitor General — Elena Kagan — has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush’s OLC circa 2004.

That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed — all in order to ensure that the Court approves of his “counter-terrorism” policies — simply underscores the irony of what Obama is doing in this area.

 

UPDATE II:  When he introduced his proposal for preventive detention during  Thursday’s speech, Obama said he wants to “work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.”  But as CQ reports today (h/t EJ), key members of his own party are baffled by how any such preventive detention system could ever possibly be consistent with the Constitution:

President Obama may not get a lot of help from Congress in designing the detention system he says he wants: something that can hold people who haven’t committed any terrorists acts, but probably will, in a way that’s consistent with the Constitution.

So far, congressional Democrats have no idea how he can do that — which pretty much leaves him with the burden of figuring it out himself. . . .

The problem is, the congressional Democrats he’d consult on the issue don’t seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.

“I don’t know,” said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. . . .

Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution” . . . .

“That was one of the troubling moments in his speech, which was generally very strong on the rule of law,” said Sarah Mendelson, director of the Human Rights and Security Program at the Center for Strategic and International Studies. “Either you have committed a crime, and we’re prosecuting you, or you haven’t. I know there’s no silver bullet, believe me, but I think he’s got some mixed messages.”

If incarcerating people with no charges and no trial indefinitely — while making clear that the imprisonment will likely last decades — isn’t unconstitutional, then it’s hard to imagine what would be.

Held Hostage by the Health System May 24, 2009

Posted by rogerhollander in Health.
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by Dr. Marcia Angell

The Senate Finance Committee’s hearings on health reform earlier this month did not include testimony from any advocate for single-payer insurance. Physicians for a National Health Program, which represents 16,000 doctors, asked the committee to invite me to testify, but it chose not to. If I had been invited, this is what I would have said:

The reason our health system is in such trouble is that it is set up to generate profits, not to provide care. We rely on hundreds of investor-owned insurance companies that profit by refusing coverage to high-risk patients and limiting services to others. They also cream off about 20 percent of the premiums for profits and overhead.

In addition, we provide much of our medical care in investor-owned health facilities that profit by providing too many services for the well-insured and too few for those who cannot pay. Most physicians are paid fee-for-service, which gives them a similar incentive, particularly specialists who receive very high fees for performing expensive tests and procedures. Nonprofits behave much like for-profits, because they must compete with them. In sum, healthcare is directed toward maximizing income, not maximizing health. In economic terms, it’s a highly successful industry, but it’s a massive drain on the rest of the economy.

The reform proposals advocated by President Obama are meant to increase coverage for the uninsured. That is certainly a worthwhile goal, but the problem is that they leave the present profit-driven and highly inflationary system essentially unchanged, and simply pour more money into it – an unsustainable situation. That is what is happening in Massachusetts, where we have nearly universal health insurance, but costs are growing so rapidly that its long-term prospects are poor without cutting benefits and greatly increasing co-payments. Initiatives such as electronic records, case management, preventive care, and comparative effectiveness studies may improve care, but the Congressional Budget Office and most health economists agree that they are unlikely to save much money. Promises by for-profit insurers and providers to mend their ways voluntarily are not credible.

Nearly every other advanced country has a largely nonprofit national health system that provides universal and comprehensive care. Expenditures are on average about half as much per person, and health outcomes are generally much better. Moreover, these countries offer more basic services, not fewer. They have on average more doctors and nurses, more hospital beds, longer hospital stays, and there are more doctor visits. But they don’t do nearly as many tests and procedures, because there is little financial incentive to do so.

It is often argued that the first order of business should be to expand coverage, and then worry about costs later. But it is essential to deal with both together to stop the drain on the rest of the economy and the further fraying of healthcare. The only way to provide universal and comprehensive coverage and control costs is to adopt a nonprofit single-payer system. Medicare is a single-payer system, with low overhead costs, but it uses the same profit-oriented providers as the private system and also preferentially rewards specialists for tests and procedures. Consequently, its costs are rising almost as rapidly as those in the private sector. Representative John Conyers introduced an excellent bill that calls for extending Medicare to everyone in a nonprofit delivery system. That could be done gradually, by lowering the Medicare age a decade at a time.

A single-payer system is ignored by lawmakers because of the influence of the health industry lobbies. They raise the specter of rationing and long waits for care. There are indeed waits for some elective procedures in some countries with national health systems, such as the United Kingdom. But that’s because they spend far less on healthcare than we do. For them, the problem is not the system; it’s inadequate funding. For us, it’s not the funding; it’s the system. We spend more than enough.

I urge you to consider a nonprofit single-payer system. The economic interests of the health industry should not be permitted to hold the rest of the economy hostage and threaten the health and well-being of the public.

 © Copyright 2009 Globe Newspaper Company.

Dr. Marcia Angell is a senior lecturer in social medicine at Harvard Medical School and former editor-in-chief of the New England Journal of Medicine.

The Angola Three: Torture in Our Own Backyard May 2, 2009

Posted by rogerhollander in Criminal Justice, Human Rights.
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solitary-confinement

By Hans Bennett, AlterNet. Posted April 2, 2009.

Together, Robert King, Albert Woodfox, and Herman Wallace have spent more than 100 years in solitary confinement.

“My soul cries from all that I witnessed and endured. It does more than cry, it mourns continuously,” said Black Panther Robert Hillary King, following his release from the infamous Louisiana State Penitentiary at Angola in 2001, after serving his last 29 years in continuous solitary confinement. King argues that slavery persists in Angola and other U.S. prisons, citing the 13th Amendment to the U.S. Constitution, which legalizes slavery in prisons as “a punishment for crime whereof the party shall have been duly convicted.” King says: “You can be legally incarcerated but morally innocent.”

Robert King, Albert Woodfox, and Herman Wallace are known as the “Angola Three,” a trio of political prisoners whose supporters include Amnesty International, Archbishop Desmond Tutu, Congressman John Conyers, and the ACLU. Kgalema Mothlante, the President of South Africa says their case “has the potential of laying bare, exposing the shortcomings, in the entire U.S. system.” Woodfox and Wallace are the two co-founders of the Angola chapter of the Black Panther Party (BPP) — the only official prison chapter of the BPP. Both convicted in the highly contested stabbing death of white prison guard Brent Miller, Woodfox and Wallace have now spent over 36 years in solitary confinement.

The joint federal civil rights lawsuit of King, Woodfox, and Wallace, alleging that their time in solitary confinement is “cruel and unusual punishment,” will go to trial any month in Baton Rouge, at the U.S. Middle District Court. Herman Wallace’s appeal against his murder conviction is currently pending in the Louisiana Supreme Court, and on March 18, he was transferred to the Hunt Correctional Facility in St. Gabrielo, Louisiana, where he remains in solitary confinement. On March 2, the U.S. Fifth Circuit Court heard oral arguments regarding Albert Woodfox’s conviction, after the Louisiana Attorney General appealed a lower court’s ruling that overturned the conviction.

An 18,000-acre former slave plantation in rural Louisiana, Angola is the largest prison in the U.S. Today, with African Americans composing over 75% of Angola’s 5,108 prisoners, prison guards known as “free men,” a forced 40-hour workweek, and four cents an hour as minimum wage, the resemblance to antebellum U.S. slavery is striking. In the early 1970s, it was even worse, as prisoners were forced to work 96-hour weeks (16 hours a day/six days a week) with two cents an hour as minimum wage. Officially considered (according to its own website) the “Bloodiest Prison in the South” at this time, violence from guards and between prisoners was endemic. Prison authorities sanctioned prisoner rape, and according to former Prison Warden Murray Henderson, the prison guards actually helped facilitate a brutal system of sexual slavery where the younger and physically weaker prisoners were bought and sold into submission. As part of the notorious “inmate trusty guard” system, responsible for killing 40 prisoners and seriously maiming 350 between 1972-75, some prisoners were given state-issued weapons and ordered to enforce this sexual slavery, as well as the prison’s many other injustices. Life at Angola was living hell — a 20th century slave plantation.

The Angola Panthers saw life at Angola as modern-day slavery and fought back with non-violent hunger strikes and work strikes. Prison authorities were outraged by the BPP’s organizing, and overwhelming evidence has since emerged that authorities retaliated by framing these three BPP organizers for murders that they did not commit.

Albert Woodfox and Herman Wallace

Both convicted of murder for the April 17, 1972 stabbing death of white prison guard Brent Miller, Albert Woodfox and Herman Wallace have recently had major victories in court that may soon lead to their release. In response, Angola Warden Burl Cain and the Louisiana State Attorney General, James “Buddy” Caldwell, are doing everything they can to resist this and to keep the two in solitary confinement. In sharp contrast, Miller’s widow, Leontine Verrett, now questions their guilt. Interviewed in March, 2008, by NBC Nightly News, she called for a new investigation into the case: “What I want is justice. If these two men did not do this, I think they need to be out.”

Woodfox and Wallace were inmates at Angola, resulting from separate robbery convictions, when they co-founded the Angola BPP chapter in 1971. Woodfox had escaped from New Orleans Parish Prison and fled to New York City, where he met BPP members, including the New York 21, before he was recaptured and sent to Angola. Wallace had met members of the Louisiana State Chapter of the BPP, including the New Orleans 12, while imprisoned at Orleans Parish.

On September 19, 2006, State Judicial Commissioner Rachel Morgan recommended overturning Wallace’s conviction, on grounds that prison officials had withheld evidence from the jury that prison officials had bribed the prosecution’s key eyewitness in return for his testimony. However, in May 2008, in a 2-1 vote, the State Appeals Court rejected Morgan’s recommendation and refused to overturn the conviction. Wallace’s appeal is now pending in the State Supreme Court, with a decision expected any month.

On June 10th, 2008, Federal Magistrate Christine Noland recommended overturning Woodfox’s conviction, citing evidence of inadequate representation, prosecutorial misconduct, suppression of exculpatory evidence, and racial discrimination. Then, on November 25, U.S. District Court Judge James Brady upheld Noland’s recommendation, overturned the conviction, and granted bail. Attorney General Caldwell responded by appealing to the U.S. Fifth Circuit. In December, the Fifth Circuit granted Caldwell’s request to deny Woodfox bail, but indicated sympathy for the overturning of the conviction, writing: “We are not now convinced that the State has established a likelihood of success on the merits.” On March 3, oral arguments were heard by appellate Judges Carolyn Dineen King, Carl E. Steart and Leslie H. Southwick, and a decision from them is now expected within six months. If the three judge panel affirms the overturning of Woodfox’s conviction, the state will have 120 days to either accept the ruling or to retry Woodfox. The state has already vowed to retry him if necessary. If the Fifth Circuit rules for the state, Woodfox’s conviction will be reinstated.

Ira Glasser, formerly of the ACLU, criticized AG Caldwell, writing that following the October 2008 announcement that Woodfox’s niece had agreed to take him in if granted bail, Caldwell “embarked upon a public scare campaign reminiscent of the kind of inflammatory hysteria that once was used to provoke lynch mobs. He called Woodfox a violent rapist, even though he had never been charged, let alone convicted, of rape; he sent emails to [Woodfox’s niece’s] neighbors calling Woodfox a convicted murderer and violent rapist; and neighbors were urged to sign petitions opposing his release. In the end, his niece and family were sufficiently frightened and threatened that Woodfox rejected the plan to live with them while on bail.” In his Nov. 25 ruling, Judge Brady himself criticized the intimidation campaign: “it is apparent that the [neighborhood] association was not told Mr. Woodfox is frail, sickly, and has a clean conduct record for more than twenty years.”

When the October 27-29 National Public Radio (NPR) series on the case reported directly from Angola, reporter Laura Sullivan observed, “a hundred black men are in the field, bent over picking tomatoes. A single white officer on a horse sits above them, a shotgun in his lap … It’s the same as it looked 40 years ago, and 100 years ago.” Commenting that many at Angola today “seem to want to bury this case in a place no one will find it,” NPR reported that Warden Burl Cain and others refused to comment. However, Caldwell told NPR he is convinced that Woodfox and Wallace are guilty, and that he will appeal Woodfox’s case all the way to the US Supreme Court. “This is a very dangerous person,” Caldwell says. “This is the most dangerous person on the planet.”

As NPR documented, there is no physical evidence linking Woodfox or Wallace to the murder. A bloody fingerprint was found at the scene but it matches neither prisoner’s prints. Prison officials have always refused to test that fingerprint against their own inmate fingerprint database. Caldwell vows to continue this policy, telling NPR: “A fingerprint can come from anywhere … We’re not going to be fooled by that.”

Caldwell also told NPR that he firmly believes the testimony of the prosecution’s key eyewitness, Hezekiah Brown, a serial rapist who had been sentenced to life without parole. Brown first told prison officials that he didn’t know anything, but he later testified to seeing Miller stabbed to death by four inmates: Woodfox and Wallace, and two others who are now deceased: Chester Jackson (who testified for the state and pled guilty to a lesser charge) and Gilbert Montegut (who was acquitted after an officer provided an alibi).

Pardoned in 1986, and now deceased, Brown always denied receiving special favors from prison authorities in exchange for his testimony. However, prison documents reveal special treatment, including special housing and a carton of cigarettes given to him every week. Testifying at Woodfox’s 1998 retrial, former Warden Murray Henderson admitted telling Brown that if he provided testimony helping to “crack the case,” he would reward him by lobbying for his pardon.

Solitary Confinement for “Black Pantherism”

In early 2008, a 25,000-signature petition initiated by ColorOfChange.org, calling for an investigation into Woodfox and Wallace’s convictions and solitary confinement, was delivered to Louisiana Governor Bobby Jindal by the head of the State Legislature’s Judiciary Committee, Cedric Richmond. To this day, Jindal remains silent on the case.

In March, 2008, following a visit from Congressman John Conyers, Chairman of the US House Judiciary Committee; Innocence Project founder Barry Scheck; and Cedric Richmond, Wallace and Woodfox were transferred from solitary and housed together in a newly-built maximum security dormitory for twenty men. This temporary release from solitary lasted for eight months, during which time Woodfox reflected: “The thing I noticed most about being with Herman is the laughing, the talking, the bumping up against one another … we’ve been denied this for so long. And every once in a while he’ll put his arm around me or I’ll put my arm around him. It’s those kinds of things that make you human. And we’re truly enjoying that.”

In April, following his visit, Conyers wrote a letter to the FBI requesting their documents relating to the case, stating: “I am deeply troubled by what evidence suggests was a tragic miscarriage of justice with regard to these men. There is significant evidence that suggests not only their innocence, but also troubling misconduct by prison officials.” The FBI responded by claiming that they had no files on the case, because, they had supposedly been destroyed.

In his deposition taken October 22, 2008, Warden Burl Cain explained why he opposed granting Woodfox bail and removing him from solitary confinement. Asked what gave him “such concern” about Woodfox, Cain stated: “He wants to demonstrate. He wants to organize. He wants to be defiant … A hunger strike is really, really bad, because you could see he admitted that he was organizing a peaceful demonstration. There is no such thing as a peaceful demonstration in prison.” Cain then stated that even if Woodfox were innocent of the murder, he would still want to keep him in solitary, because “I still know he has a propensity for violence … he is still trying to practice Black Pantherism, and I still would not want him walking around my prison because he would organize the young new inmates. I would have me all kinds of problems, more than I could stand, and I would have the blacks chasing after them. I would have chaos and conflict, and I believe that.”

The only other known U.S. prisoner to have spent so many years in solitary confinement is Hugo Pinell, in California. One of the San Quentin Six, Pinell was a close comrade of Black Panther and prison author, George Jackson. Currently housed in Pelican Bay State Prison’s notorious “Security Housing Unit”, Pinell has been in continuous solitary since at least 1971. The recently freed Angola 3 prisoner Robert Hillary King says Pinell “is a clear example of a political prisoner.” This January, Pinell was denied parole for the next 15 years, which King says “is a sentence to die in prison. This is cruel and unusual punishment, which may be legal but is definitely not moral.”

Robert Hillary King

The new book From the Bottom of the Heap: The Autobiography of Robert Hillary King has just been released by PM Press. This inspiring book tells of King’s triumph over the horrors of Angola. Born poor in rural Louisiana, he was raised mostly by his heroic grandmother, who King recounts “worked the sugar cane fields from sun up ’til sun down for less than a dollar a day. During the off-season, she washed, ironed clothes, and scrubbed floors for whites for pennies a day or for leftover food. Her bunions and blisters told a bitter but vivid tale of her travails.”

King first entered Angola at the age of 18, for a robbery conviction. In his book, he admits to doing some non-violent burglaries at the time, but maintains his innocence regarding this conviction and every one since. Granted parole in 1965, at the age of 22, he returned to New Orleans, got married, and began a brief semi-pro boxing career as “Speedy King.” He was then arrested on charges of robbery, just weeks before his wife Clara gave birth to their son. After being held for over 11 months, his friend pled guilty to a lesser charge and was released on time served. Simultaneously, the DA dropped the charges against King, but he was not released, because his arrest, coupled with his friend’s guilty plea was deemed a parole violation. Therefore, King was sent back to Angola where he served 15 months and was released again in 1969.

Upon release, King was again arrested on robbery charges, and was convicted, even though his co-defendant testified that he had only picked King out of a mug shot lineup after being tortured by police into making a false statement. King appealed, and while being held at New Orleans Parish Prison, he escaped, but was re-captured weeks later. Upon returning to Orleans Parish he met some of the New Orleans 12–BPP members arrested after a confrontation with police at a housing project. He was radicalized and worked with the Panthers organizing non-violent hunger strikes, and engaging in self-defense against violent attacks from prison authorities.

In 1972, King moved to Angola shortly after the death of prison guard Brent Miller. Upon arrival, on grounds that King “wanted to play lawyer for another inmate,” he was immediately put into solitary confinement: first in the “dungeon,” then the “Red Hat,” and finally to the Closed Correction Cell (CCR) unit, where he remained until his 2001 release. At CCR, King writes that the Angola BPP chapter and others continued to struggle, using the one hour a day outside their cells (when they were allowed to shower and interact in the walkway) to organize: “That was how we talked, passed papers, educated each other, and coordinated our actions.”

King writes about the fight, started in 1977, to end the practice of routine rectal searches of prisoners: “Coming to a consensus conclusion that this practice was a carryover from slavery (before being sold, the slave had to be stripped and subjected to anal examination), and after months of appealing to our keepers, we decided to take a bold step: we would simply refuse a voluntary anal search. We would not be willing participants in our own degradation.” When King and others refused, they were viciously beaten. Woodfox hired a lawyer on the prisoners’ behalf and they filed a successful civil suit. The court ruled to ban “routine anal searches.” Another victory came after a one month hunger strike that stopped the unhealthy and dehumanizing practice of putting the inmate’s food on the floor to be slid underneath the cell door, whereby food would often be lost and the remaining food would usually get dirty.

In 1973, King was accused of murdering another prisoner, and was convicted at a trial where he was bound and gagged. After years of maintaining his innocence and appealing, his conviction was overturned in 2001, after he reluctantly pled guilty to a lesser charge of “conspiracy to commit murder” and was released on time served.

Kenny “Zulu” Whitmore

On June 21, 2008, Robert King attended the unveiling of a 40-foot mosaic dedicated to Angola prisoner and Angola BPP member Kenneth “Zulu” Whitmore, launching the “Free Zulu” campaign. King is working to publicize his case, saying “Zulu is a true warrior, Panther, a servant of the people. He has fought a good battle, for so long, unrecognized, unsupported!”

The mosaic adorns the back of activist/artist Carrie Reichardt’s home in the West London suburb of Chiswick. Reichardt says “we chose to base the design around a modern day interpretation of the Goddess Kali. She is considered the goddess of liberation, time and transformation. We wanted to use a strong, positive image of a female that would give hope and encourage others to join the struggle to bring about social change. Her speech bubble says ‘The revolution is now’.”

Imprisoned since 1977, Whitmore met Herman Wallace while imprisoned in 1973 at the East Baton Rouge Prison. Whitmore was released but then arrested and subsequently imprisoned at Angola when he was convicted of robbery and second-degree murder after he had returned to the community and been a political organizer. Just like the Angola 3, the case against him is full of holes, and he is appealing his conviction. Whitmore does not have a lawyer yet, so the freezulu.co.uk website is raising money to support his appeal.

Angola: The Last Slave Plantation

Three court cases are now pending: the federal civil rights lawsuit at the U.S. Middle District Court, Albert Woodfox’s appeal at the U.S. Fifth Circuit, and Wallace’s appeal at the State Supreme Court. At this critical stage, a new DVD has just been released by PM Press, titled The Angola 3: Black Panthers and the Last Slave Plantation. The DVD is narrated by death-row journalist Mumia Abu-Jamal, and features footage of King’s 2001 release, as well as an interview with King and a variety of former Panthers and other supporters of the Angola 3, including Bo Brown, David Hilliard, Geronimo Ji Jaga (formerly Pratt), Marion Brown, Luis Talamantez, Noelle Hanrahan, Malik Rahim, and the late Anita Roddick.

The perpetuation of white supremacy and slavery at Angola is a central theme throughout the film. Fred Hampton Jr., emphasizes that “we’ve got to make the connection between these modern day plantations, and what went down with chattel slavery.” Scott Fleming, a lawyer for the Angola 3, says: “That prison is still run like a slave plantation … People like Albert Woodfox and Herman Wallace are the example of what will happen to you if you resist that system.”

Longtime Japanese-American activist Yuri Kochiyama says that Woodfox and Wallace “love people and will fight for justice even if it puts them on the spot. I think of them as real heroes … who hated to see people in the prison get hurt.” San Francisco journalist and former BPP member Kiilu Nyasha adds that “it behooves us to not forget those who were on the frontlines for us. … We need to come to their rescue because they came to ours.”

The many years of repression and torture have failed to extinguish the Angola 3’s spirit or will to resist, as Woodfox explains in the DVD: “At heart, mind and spirit, we’re still Black Panthers. We still believe in the same principles as the BPP, we still advocate the ten point program. We still advocate that all prisoners, black or white, are human beings. They deserve to be treated as human beings.”

Disclosure of ‘Secrets’ in the ’70s Didn’t Destroy the Nation April 29, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, Torture.
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by Amy Goodman

President Barack Obama promised “more transparent … more creative” government. His release of the torture memos, and the Pentagon’s expected release of more photos of detainee abuse, is a step in the right direction. Yet he assured the CIA that he will not prosecute those who followed the instructions to torture from the Bush administration. Congress might not agree with this leniency, with prominent senators calling for investigations.Sen. Carl Levin, D-Mich., the chairman of the Senate Armed Services Committee, just released a 262-page report titled “Inquiry Into the Treatment of Detainees in U.S. Custody.” Levin said the report “represents a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse … to low-ranking soldiers. Claims … that detainee abuses could be chalked up to the unauthorized acts of a ‘few bad apples’ were simply false.” Sens. Patrick Leahy, D-Vt., and Dianne Feinstein, D-Calif., also are proposing investigations.

The Senate interest in investigation has backers in the U.S. House, from Speaker Nancy Pelosi, D-Calif., to Chairman of the House Judiciary Committee John Conyers, D-Mich., who told The Huffington Post recently, “We’re coming after these guys.”

Amrit Singh, staff attorney for the American Civil Liberties Union, said the Pentagon’s photos “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.” The ACLU also won a ruling to obtain documents relating to the CIA’s destruction of 92 videotapes of harsh interrogations. The tapes are gone, supposedly, but notes about the content of the tapes remain, and a federal judge has ordered their release.

In December 2002, when the Bush torture program was well under way, then-Secretary of Defense Donald Rumsfeld signed off on a series of harsh interrogation techniques described in a memo written by William Hayes II (one of the “Bush Six” being investigated by Spanish Judge Baltasar Garzon). At the bottom of the memo, under his signature, Rumsfeld scrawled: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” Rumsfeld zealously classified information in his years in government.

A similar crisis confronted the U.S. public in the mid-1970s. While the Watergate scandal was unfolding, widespread evidence was mounting of illegal government activity, including domestic spying and the infiltration and disruption of legal political groups, mostly anti-war groups, in a broad-based, secret government crackdown on dissent. In response, the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities was formed. It came to be known as the Church Committee, named after its chairman, Idaho Democratic Sen. Frank Church. The Church Committee documented and exposed extraordinary activities on the CIA and FBI, such as CIA efforts to assassinate foreign leaders, and the FBI’s COINTELPRO (counterintelligence) program, which extensively spied on prominent leaders like Dr. Martin Luther King Jr.

It is not only the practices that are similar, but the people. Frederick A.O. Schwarz Jr., general counsel to the Church Committee, noted two people who were active in the Ford White House and attempted to block the committee’s work: “Rumsfeld and then [Dick] Cheney were people who felt that nothing should be known about these secret operations, and there should be as much disruption as possible.”

Church’s widow, Bethine Church, now 86, continues to be very politically active in Idaho. She was so active in Washington in the 1970s that she was known as “Idaho’s third senator.” She said there needs to be a similar investigation today: “When you think of all the things that the Church Committee tried to straighten out and when you think of the terrific secrecy that Cheney and all of these people dealt with, they were always secretive about everything, and they didn’t want anything known. I think people have to know what went on. And that’s why I think an independent committee [is needed], outside of the Congress, that just looked at the whole problem and everything that happened.”

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on 700 stations in North America. She was awarded the 2008 Right Livelihood Award, dubbed the “Alternative Nobel” prize, and received the award in the Swedish Parliament in December.

What if Instead of the Nuremberg Trials There Was Only a Truth Commission? April 29, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, George W. Bush, Torture.
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by Jeremy Scahill

Representatives John Conyers and Jerrold Nadler are officially asking Attorney General Eric Holder to appoint an independent Special Prosecutor “to investigate and, where appropriate, prosecute” participants in the Bush-era US torture system. “A Special Counsel is the most appropriate way to handle this matter,” Nadler said. “It would remove from the process any question that the investigation was subject to political pressure, and it would preempt any perceptions of conflict of interest within the Justice Department, which produced the torture memos.” But, as Politico reports, “Holder is likely to reject that request – his boss, the president, has indicated he doesn’t see the need for such a prosecutor.” The Democratic Leadership, particularly Obama, Senate Majority Leader Harry Reid and Sen. Diane Feinstein have pushed for secret, closed-door hearings in the Senate Intelligence Committee. Other Democrats, like Patrick Leahy, advocate establishing a Truth Commission, though that is not gaining any momentum. The fact remains that some powerful Democrats knew that the torture was happening and didn’t make a public peep in opposition.

This week, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell came out in favor of prosecutions of “the decision-makers and their closest advisors (particularly the ones among the latter who may, on their own, have twisted the dagger a little deeper in Caesar’s prostrate body – Rumsfeld and Feith for instance). Appoint a special prosecutor such as Fitzgerald, armed to the teeth, and give him or her carte blanche. Play the treatment of any intermediaries – that is, between the grunts on the ground and the Oval – as the law allows and the results demand.”

Wilkerson, though, understands Washington. “Is there the political will to carry either of these recommendations to meaningful consequences?” he wrote to the Huffington Post. “No, and there won’t be.”

As of now, Conyers and Nadler aren’t exactly looking for over-flow space for their meetings on how to get criminal prosecutions going.

Officially joining the anti-accountability camp this week was The Washington Post‘s David Broder who wrote this gem in defense of the Bush administration: “The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places – the White House, the intelligence agencies and the Justice Department – by the proper officials.” (For a great response to this, check out Scott Horton). Broder is urging Obama to “stick to his guns” in standing up to pressure “to change his mind about closing the books on the ‘torture’ policies of the past.” Don’t you love how Broder puts torture in quotes? I really wonder how Broder would describe it if he was waterboarded (and survived). Can’t you just imagine him making the little quote motion with his hands? Broder’s Washington Post column was titled “Stop Scapegoating: Obama Should Stand Against Prosecutions:”

[Obama was] right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices.But now Obama is being lobbied by politicians and voters who want something more – the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps – or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability – and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger.

Thank goodness we have a president who opposes “even the blandest form of investigation”-how uncouth such savagery would prove to be. While the elite Washington press corp works hard to make sure things don’t get too uncomfortable at the wine and cheese cocktail parties, some liberal journalists are also making the case against a special prosecutor (or at least the immediate appointment of one). Last week it was Elizabeth de la Vega, who made an interesting case for waiting to prosecute while evidence is gathered:

We must have a prosecution eventually, but we are not legally required to publicly initiate it now and we should not, as justifiable as it is. I’m not concerned about political fallout. What’s good or bad for either party has no legitimate place in this calculus. My sole consideration is litigation strategy: I want us to succeed.

This week it is Mother Jones Washington editor David Corn, who comes out in favor of a congressional investigation “that placed a premium on public disclosure” or “an independent commission.” Corn describes how he recently warned a Congressmember who supports the appointment of a Special Prosecutor, “That’s not necessarily a good idea.” Corn talks about how a coalition of groups from the Center for Constitutional Rights and the ACLU to Democrats.com and MoveOn.org have all petitioned for a prosecutor:

These liberals all want to see alleged Bush administration wrongdoing exposed. But there’s one problem with a special prosecutor: it’s not his job to expose wrongdoing. A special prosecutor does dig up facts-but only in order to prosecute a possible crime. His mission is not to shine light on misdeeds, unless it is part of a prosecution. In many cases, a prosecutor’s investigation does not produce any prosecutions. Sometimes, it leads only to a limited prosecution.That’s what happened with Patrick Fitzgerald. He could not share with the public all that he had discovered about the involvement of Bush, Cheney, Karl Rove, and other officials in the CIA leak case… A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.

[…]

Prosecuting government officials for providing legal opinions that greenlighted waterboarding and the like would pose its own legal challenges. Could a government prosecutor indict the government lawyers who composed and signed the torture memos for aiding and abetting torture without indicting the government employees who actually committed the torture? (President Barack Obama has pledged that the interrogators will not be pursued.) And could a prosecutor win cases in which his targets would obviously argue that they were providing what they believed was good-faith legal advice, even if it turned out that their advice was wrong?… Several lawyers I’ve consulted have said that a criminal case against the authors of these memos would be no slam dunk. One possible scenario is that a special prosecutor would investigate, find out that sordid maneuvering occurred at the highest levels of the Bush-Cheney administration, and then conclude that he or she did not have a strong enough legal case to warrant criminal indictments and trials.

The bottom line: Anyone who wants the full truth to come out about the Bush-Cheney administration’s use of these interrogation practices cannot count on a special prosecutor.

Corn’s advice to that unnamed Democratic Congressmember wasn’t exactly well received by lawyers who have been pushing for prosecutions. Perhaps the most passionate advocate for the appointment of an independent Special Prosecutor right now is Michael Ratner, the president of the Center for Constitutional Rights.

“To argue that we should not have prosecutions because it won’t bring out all the facts when taken to its logical conclusion would mean never prosecuting any official no matter the seriousness of the crimes,” Ratner told me. “Right now is not the time to be backing off on prosecutions. Why are prosecutions of torturers ok for other non-western countries but not for the US?  Prosecution is necessary to deter torture in the future and send a message to ourselves and the rest of the world that the  seven or eight year torture program was unlawful and must not happen again. The purpose of prosecutions is to investigate and get convictions so that officials in the future will not again dispense with the prohibition on torture.”

Constitutional Law expert Scott Horton says that the problems with a Special Prosecutor Corn lays out are “correct, but he makes the latent assumption that it’s either/or.  That’s absurd.  Obviously it should be both a commission and one or more prosecutors as crimes are identified.”

Jameel Jaffer, one of the leading ACLU attorneys responsible for getting the torture memos released by the Obama administration, agrees with Horton. “I don’t think we should have to choose between a criminal investigation and a congressional inquiry,” Jaffer told me. “A congressional committee could examine the roots of the torture program and recommend legislative reform to prevent gross human rights abuses by future administrations. At the same time, a Justice Department investigation could investigate issues of criminal responsibility. One shouldn’t foreclose the other.”

Jaffer adds, “It might be a different story if we thought that Congress would need to offer immunity in exchange for testimony.  But many of the key players – including John Yoo, George Tenet, and Dick Cheney – have made clear that they have no qualms about talking publicly about their actions (Yoo and Tenet have both written books, and Cheney is writing one now).”

The bottom line, Ratner argues, is that “prosecutions will bring out facts.” He cites the example of the Nuremberg Tribunals:

What if we had had a truth commission and no prosecutions?  Right now we have many means of getting the facts: FOIA, congressional investigations such as the Senate Armed Services Report, former interrogators, document releases by the Executive. There are plenty of ways to get information even if it does not all come out in prosecutions. Many of the calls to not prosecute are by those, particularly inside the beltway, who cannot imagine Bush, Cheney et al. in the dock or by those who accept the argument that the torture conspirators were trying their best. This is not a time to hold back on the demand that is required by law and fact: appoint a special prosecutor.

David Swanson, who for years has pushed for prosecutions of Bush administration officials, was one of the organizers of the petitions calling for the appointment of a Special Prosecutor. “My top priority is not ‘truth,'” he said. “My top priority is changing the current truth, which is that we don’t have the nerve and decency to enforce our laws against powerful people.”

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.