Friday, March 30, 2007

Padilla Loses - Five Years is "Speedy" Enough

Just because he has been incarcerated almost five years doesn't mean Jose Padilla is not getting a speedy trial. At least that's what the District Court in Miami ruled on March 23, 2007. The judge bought the Government's argument that the 3 1/2 years he was held without charges should not count against the Speedy Trial requirement contained in the Sixth Amendment to the Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Unfortunately for Padilla, and any of the rest of us who may find ourselves in the same situation, that quaint Constitutional provision doesn't mean you can't be held for one, two, three years, heck, indefinitely, without trial. It only means that if the Government ever decides to charge you with something, then at that point they have to start obeying the rules. As reported by AP,

U.S. District Judge Marcia Cooke agreed with prosecutors that Padilla's years in isolation at a Navy brig did not count because he had not yet been charged.

The criminal charges came when Padilla, a U.S. citizen accused of being an al-Qaida operative, was added to an existing Miami terrorism support indictment in November 2005. Only then did the clock start for the Sixth Amendment's right to a "speedy and public trial," Cooke said.

"I agree that the law in this case is that a criminal trial proceeding begins with the filing of the criminal process," Cooke said. "Mr. Padilla has been promptly brought to court in that matter."

(I have not found a link to the decision yet, but will update when I do.)

This is not a really unexpected decision since the Court of Appeals had issued an opinion in September, 2005 that his detention without charges was legal. But this latest opinion is another sharp stick in the eye of American Justice and Constitutional rights.

I should explain my real problem with this decision. I suspect that the judge was slavishly following the precedents which say that the right to speedy trial attaches only after charges are filed. Fine. But this case is different from the usual ones and those precedents could be distinguished.

Here we have a man who was arrested and detained for 3 1/2 years without any charges having been filed against him. All during this time he is portrayed as this highly dangerous individual who was on the verge of killing thousands. After 3 1/2 years he was finally transferred from military detention and charged, but only after it became likely that he was about to get a Habeas Corpus hearing. To make matters worse, when the charges against him were actually filed, no mention was made of the alleged reasons for his initial incarceration. Lastly, during much of this period he has been held in solitary confinement and possibly tortured.

Sure a judge can just look at the precedents and tell him he is out of luck. Or, the judge could simply blow the whistle on this outrageous conduct and say that enough is enough. The Government will not be allowed to treat basic principles of justice as if they are written on an etch a sketch board which can be erased and rewritten at the whim of his jailers.

Where is an "activist" judge when we need one?

Friday, March 23, 2007

Bush Doesn't Have A Leg To Stand On Regarding The Testimony Of White House Officials

There is so much discussion about subpoenas these days, and whether Bush White House officials will be forced to, or will "voluntarily," testify before Congress. The misinformation from the right has gone to absurd extremes topped by Snow's ridiculous statement that the Congress has no oversight authority over the White House. Whoop! Guess he forgot about Congress' impeachment power.

To help us sort through the silliness from Bush flacks Congressman Waxman wrote a letter to Leahy and Conyers with an attached report detailing just how often Clinton White House officials testified before Congress, either with or without subpoenas. The letter fully debunks the White House claim that their offer of unsworn, private, unrecorded conversations would provide "unprecedented" access to White House officials

It contains good reference material for "water cooler" discussions and letters to the editor. Here are a few big points.

First, we have Clinton White House Counsels testifying -

ln 1994, White House Counsel Bernard Nussbaum testified before the House Committee on Banking, Finance and Urban Affairs regarding the "Whitewater" matter. In l996,he was deposed under oath on two separate days by the House Committee on Government Reform and Oversight as part of the White Travel Office investigation.

In 1994, White House Counsel Lloyd Cutler testified before the House Committee on Banking, Finance and Urban Affairs regarding the "'Whitewater" matter.

ln 1997, White House Counsel Jack Quinn was deposed under oath by the House Committee on Government Reform and Oversight as part of an investigation into campaign finance activities.

In 1997, White House Counsel Charles Ruff testified before the House Committee on Government Reform and Oversight as part of an investigation into campaign finance activities. Mr. Ruff testified again before the Committee in 2000 as part of an investigation into the White House email system. Mr. Ruff also testified before the Senate Committee on Governmental Affairs as part of the Committee's 1997-1998 investigation into campaign finance activities.

In 2000, White House Counsel Beth Nolan testified before the House Committee on Government Reform as part of an investigation into the White House email system. Ms. Nolan testified again before the Committee in 2001 as part of an investigation into President Clinton's pardon decisions.

Next we have Clinton's Chiefs of Staff -

In 1997 ,White House Chief of Staff Thomas F. Mclarty was deposed by the House Committee on Government Reform and Oversight as part of an investigation into campaign finance activities.

In 1998, White House Chief of Staff Erskine Bowles was deposed by the House Committee on Government Reform and Oversight as part of an investigation into the use of the President's holiday card list.

In 2001, White House Chief of Staff John Podesta testified before the House Committee on Government Reform as part of an investigation into President Clinton's pardon decisions.

And lest anyone try to obfuscate the significance of these examples by saying they involved "criminal' matters, baloney. In most of these cases there were no credible allegations of underlying crimes and in some, such as the exercise of the President's pardon power, it involved a matter committed to the President's absolute discretion.

The letter goes on to discuss the voluminous record of documents that the Clinton Administration provided to the Congress.

Attached to the letter is a report with all the gory details. Here are some highlights. On the question of subpoenas,

Before the Republicans took control of Congress in 1995, congressional authority to issue subpoenas was viewed as a serious power to be exercised judiciously. From at least as far back as the McCarthy era in the 1950s to the Republican takeover in 1995, no Democratic committee chairman issued a subpoena without either consent from the minority or a committee vote. This long-standing tradition of restraint was abandoned, however, during the congressional investigations of the Clinton Administration.

The Government Reform Committee is the primary investigative committee in the House of Representatives. During the Clinton Administration, the chairman of this Committee unilaterally issued over 1,000 subpoenas to investigate allegations of misconduct involving the Clinton Administration and the Democratic Party. The Committee issued 1,089 subpoenas during the six years that Dan Burton served as chairman from 1997 through 2002. During this period, 1,052 of the Committee's subpoenas - 97% - targeted officials of the Clinton Administration and the Democratic Party; only l l subpoenas related to allegations of Republican abuses.

Regarding the production of documents,

The Government Accountability Office examined White House efforts to provide documents to Congress over an 18-month period from October 1996 to March 1998. GAO found that during this period alone, White House staff spent over 55,000 hours responding to over 300 congressional requests, producing hundreds of thousands of pages of documents and hundreds of video and audio tapes to Congress.

And here are just three examples of the types of information provided to Congress.

Discussions Between the President and His Advisors. President Clinton waived executive privilege to allow his advisors to testify before the Committee about their discussions with him regarding the exercise of the presidential pardon power. Attorney General Janet Reno informed the Committee about her discussions with the President during the confrontation at Waco.

Internal White House E-Mails. The White House spent over $12 million to reconstruct internal White House e-mails for Committee review. Thousands of pages of these White House emails were provided to the Committee, including e-mails between the Vice President and his staff.

Confidential Communications from the White House Counsel's Office. The White House Counsel's Office turned over to the Committee many documents containing sensitive legal advice or communications, In a private-sector context, these documents would be covered by the attorney-client privilege and the work-product privilege. For example, during its campaign finance investigation, the Committee received notes taken by White House counsel reflecting attorney-client communications, and during its investigation into the White House email system, the Committee received a memorandum containing legal advice from the Vice President's counsel to the Vice President.

Though most of us lived through all this it still boggles the mind. But what's done is done. This White House has no standing now to deny Congress access to the information and testimony currently being sought. They know history is not on their side. And If they persist by fighting this in court, they will be hoisted on their own petards.

Monday, March 12, 2007

El Masri Looses - State Secret Privelage Run Amuck

On March 2, 2007, the Fourth Circuit upheld the dismissal of a law suit that had been filed against the government by Khaled El Masri, the German who was an innocent victim of the shameful and illegal U.S. extraordinary rendition program. The case was dismissed because the Court accepted the Government's argument that if the case were allowed to proceed there would be a risk of exposing "State secrets." ACLU Executive Director Romero summed it up well,

“Regrettably, today’s decision allows CIA officials to disregard the law with impunity by making it virtually impossible to challenge their actions in court,” said ACLU Executive Director Anthony D. Romero. “With today’s ruling, the state secrets doctrine has become a shield that covers even the most blatant abuses of power.”

You can download the decision here or go to this link for the case.

You probably remember El Masri from his 60 Minutes appearance or countless news articles detailing the months of abuse to which he was subjected, all because the CIA didn't check its facts.

The ACLU lawsuit charges former CIA director George Tenet, other CIA officials and U.S.-based aviation corporations with violations of United States and universal human rights laws. El-Masri was on vacation in Macedonia when he was kidnapped, abused and rendered to a CIA-run “black site” in Afghanistan. After several months of confinement in squalid conditions, he was flown from Afghanistan and abandoned on a hill in Albania with no explanation, never having been charged with a crime.

He has been a free man ever since but one tormented by his experience. And he can't get justice because that would supposedly harm national security. What a joke. As his attorneys point out

To date, El-Masri’s case has been described in literally hundreds of newspaper articles and television news programs – many of them relying on sources within the U.S. government. It has been the subject of numerous investigations and reports by intergovernmental bodies, including the European Parliament. Most recently, prosecutors in El-Masri’s adopted country of Germany formally requested indictments against 13 CIA agents and contractors for their role in his kidnapping, abuse, and detention.

. . . . . . . . . . .

“Today the appeals court gave the CIA complete immunity for even its most shameful conduct," said ACLU attorney Ben Wizner, who argued El-Masri’s case before the Fourth Circuit last November. "Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured."

The ACLU has not yet announced whether it will appeal the case to the Supreme Court. I hope they do and bring an end to this type of ridiculous use of a State Secrets privilege.

These state secret cases go way back in our history. In analyzing them the courts make the Government jump through some minor hoops but when all is said and done they revolve around deference.

A court is obliged to honor the Executive’s assertion of the privilege if it is satisfied "from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10. In assessing the risk that such a disclosure might pose to national security, a court is obliged to accord the "utmost deference" to the responsibilities of the executive branch. Nixon, 418 U.S. at 710. Such deference is appropriate not only for constitutional reasons, but also practical ones: the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information. In the related context of confidentiality classification decisions, we have observed that "[t]he courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972).

Applying those principles and precedents from similar cases to El Masri the court concluded

In light of these decisions, we must reject El-Masri’s view that the existence of public reports concerning his alleged rendition (and the CIA’s rendition program in general) should have saved his Complaint from dismissal. Even if we assume, arguendo, that the state secrets privilege does not apply to the information that media outlets have published concerning those topics, dismissal of his Complaint would nonetheless be proper because the public information does not include the facts that are central to litigating his action. Rather, those central facts — the CIA means and methods that form the subject matter of El-Masri’s claim — remain state secrets. Consequently, pursuant to the standards that El-Masri has acknowledged as controlling, the district court did not err in dismissing his Complaint at the pleading stage.

These are real tough cases for any plaintiff and I would not venture a guess on how the Supreme Court would rule. But the injustice here is so great it might be a good vehicle to get the Supreme Court to reconsider this area of the law and rein in what appear to be clear Executive branch abuses. Unfortunately El Masri's challenge is made all the more difficult because the trial and appellate courts saw fit to defer to the government's state secret claims. Why any court would give this government the benefit of the doubt on any national security type argument in a case involving abuses of human rights and basic standards of decency is beyond me.

(As an aside, I was only ever involved in one case before the 4th Circuit. I was working for a Federal agency and the question was, as in Masri's case, the appropriate degree of deference the court should grant to an Agency. In our case it involved the interpretation of our organic act. Although we had won in the District Court we lost on appeal. I sure wish we had been given the same deference given in the Masri case. Of course, my case didn't involve state secrets.)