Category Archives: Civil Liberties - Page 2

Empire and Torture

Somehow with so much news about torture by the US I have refrained from commenting on any of it for a while. What can I say, I have become disillusioned. But here are some scattered thoughts.

The Washington Post has an article about “black sites”:

The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.

The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.

When there are prisons, detention and torture centers spread around the world, can we finally say “Empire”?

On the other hand, His Imperial Majesty says:

“There’s an enemy that lurks and plots and plans and wants to hurt America again,” Bush said. “So you bet we will aggressively pursue them but we will do so under the law.”

He declared, “We do not torture.”

[…] “Our country is at war and our government has the obligation to protect the American people,” Bush said. “Any activity we conduct is within the law. We do not torture.”

While some libertarians have been worried about the rights of Americans being lost due to the war on terror, I am not extremely worried about that. The rights and liberties might vary over time but they will most likely remain within US historical norms (though historical norms isn’t good enough). However, with the reach of the US government beyond any historical power and its willingness to use that power, foreigners (especially those outside the US) might have something to fear. As an example, did you know that the US senate removed passed an amendment which if it goes through the rest of the legislative process would remove the right of habeas corpus from Gitmo detainees last week?

The Senate today passed Lindsay Graham’s amendment, 49 to 42 barring detainees at Guantanamo and others declared by the Executive Branch to be enemy combatants from seeking judicial review of the legality of their detentions.

To read more about the stupidity behind Senator Graham’s amendment, please do read the following Obsidian Wings posts.

The latest news on Guantanamo and habeas corpus is that a further amendment has been passed by the Senate.

Senators also voted to endorse the Bush administration’s military tribunals for prosecuting foreign terrorism suspects at the U.S. naval base at Guantanamo Bay, Cuba, but to allow the detainees to appeal their detention status and punishments to a federal court.

[…] Senators added the language Tuesday that would allow Guantanamo detainees to appeal their status as “enemy combatants” and the rulings of U.S. military tribunals to a federal appeals court in Washington, D.C. That avenue would take the place of the one tool the Supreme Court gave detainees in 2004 to fight the legality of their detentions — the right to file habeas corpus petitions in any federal court.

Senators approved the measure on tribunals by an 84-14 vote. It was a bipartisan compromise reached after last week’s Senate approval of a provision that stripped detainees entirely of their ability to file the petitions. Critics said that provision did not provide a meaningful way for detainees to appeal their status or the decisions of military tribunals.

Earlier Tuesday, senators defeated a Democratic proposal that would have reinstated the right to file habeas corpus lawsuits, but limited the challenges to one court.

The idea of not giving any rights to foreigners detained outside the US by Americans seems to remind me to some extent of former empires. After all, an Englishman was not the same as an Indian in the British empire. This action creates two classes of people, “us” and “them”: We have rights and they don’t. The point is argued well in this Slate article.

As if using Soviet-era prison compounds in Eastern Europe wasn’t enough, the United States is also copying communist torture tactics.

The Pentagon effectively signed off on a strategy that mimics Red Army methods. But those tactics were not only inhumane, they were ineffective. For Communist interrogators, truth was beside the point: their aim was to force compliance to the point of false confession.

Fearful of future terrorist attacks and frustrated by the slow progress of intelligence-gathering from prisoners at Guantánamo Bay, Pentagon officials turned to the closest thing on their organizational charts to a school for torture. That was a classified program at Fort Bragg, N.C., known as SERE, for Survival, Evasion, Resistance, Escape. Based on studies of North Korean and Vietnamese efforts to break American prisoners, SERE was intended to train American soldiers to resist the abuse they might face in enemy custody.

The Pentagon appears to have flipped SERE’s teachings on their head, mining the program not for resistance techniques but for interrogation methods. At a June 2004 briefing, the chief of the United States Southern Command, Gen. James T. Hill, said a team from Guantánamo went “up to our SERE school and developed a list of techniques” for “high-profile, high-value” detainees. General Hill had sent this list – which included prolonged isolation and sleep deprivation, stress positions, physical assault and the exploitation of detainees’ phobias – to Secretary of Defense Donald Rumsfeld, who approved most of the tactics in December 2002.

While you are at it, read this account of a guy tortured and murdered by the CIA in Iraq.

Reaction to Criticism

Amnesty recently came out with a report detailing the US practices violating human rights in Guantanamo and beyond. Most conservative and Republic commentary has focused on the word “gulag” used by Irene Khan in the press conference instead of the torture and other activities of the US government. Here is Bush expressing his opinion about the report.

I’m aware of the Amnesty International report, and it’s absurd. […] It seemed like to me they based some of their decisions on the word of — and the allegations — by people who were held in detention, people who hate America, people that had been trained in some instances to disassemble — that means not tell the truth. And so it was an absurd report.

Cheney:

Dick Cheney said Monday he was offended by Amnesty International’s condemnation of the United States for what it called “serious human rights violations” at Guantanamo Bay.

“For Amnesty International to suggest that somehow the United States is a violator of human rights, I frankly just don’t take them seriously.”

“Guantanamo’s been operated, I think, in a very sane and sound fashion by the U.S. military. … I think these people have been well treated, treated humanely and decently,” Cheney said. “Occasionally there are allegations of mistreatment.

“But if you trace those back, in nearly every case, it turns out to come from somebody who has been inside and been released … to their home country and now are peddling lies about how they were treated.”

On the other side of the world, via Dad, Mukhtaran Bibi is not being allowed to move about freely while the people who raped her have been freed by the courts.

Mukhtaran, the Meerwala gang-rape victim, has accused the government of forcibly restricting her movement so that she could not meet her lawyers and sympathizers.

[…] Mukhtaran said some federal government officials had recently visited her and advised her not to talk to journalists and rights activists if she wanted the government to be on her back. Their logic was that her media exposure painted a bad image of the country in the international community. “No one will have to seek help of the media and the rights activists if police and courts in the country dispense justice without any prejudice,” she remarked.

And to save the national reputation, she is not allowed to go abroad, after all she got the invitation from that “disgusting” and “absurd” organization, Amnesty International.

The interior ministry has placed Mukhtaran Mai’s name on the Exit Control List (ECL).

Sources in the ministry told Dawn on Friday that Mukhtaran Mai had been scheduled to leave for London in a day or two on an invitation from the Amnesty International.

“Her name has been placed on the ECL with a directive to the Federal Investigation Agency to ensure compliance,” an officer of the FIA said.

The official said the government had taken the decision on reports that her visit could ‘tarnish’ the image of the country abroad.

Wow! Her going abroad and talking about what happened to her would tarnish the country’s reputation but the gang rape and acquittal of the rapists didn’t?

Don’t Bush and Cheney wish they could do freely what Musharraf, the “enlightened moderate,” so easily can?

POSTSCRIPT: Chapati Mystery is right and Kristof is wrong. This is what Musharraf is. He is doing what dictators do.

Civil Liberties, Republicans and TV News

There is an interesting public opinion survey out from Cornell.

In a study to determine how much the public fears terrorism, almost half of respondents polled nationally said they believe the U.S. government should — in some way — curtail civil liberties for Muslim Americans, according to a new survey released today (Dec. 17) by Cornell University.

[…] The Media and Society Research Group, in Cornell’s Department of Communication, commissioned the poll, which was supervised by the Survey Research Institute, in Cornell’s School of Industrial and Labor Relations. The results were based on 715 completed telephone interviews of respondents across the United States, and the poll has a margin of error of 3.6 percent.

The survey also examined the relation of religiosity to perceptions of Islam and Islamic countries among Christian respondents. Sixty-five percent of self-described highly religious people queried said they view Islam as encouraging violence more than other religions do; in comparison, 42 percent of the respondents who said they were not highly religious saw Islam as encouraging violence. In addition, highly religious respondents also were more likely to describe Islamic countries as violent (64 percent), fanatical (61 percent) and dangerous (64 percent). Fewer of the respondents who said they were not highly religious described Islamic countries as violent (49 percent), fanatical (46 percent) and dangerous (44 percent). But 80 percent of all respondents said they see Islamic countries as being oppressive toward women.

[…] “Our results highlight the need for continued dialogue about issues of civil liberties in time of war,” says James Shanahan, Cornell associate professor of communication and a principal investigator in the study. Shanahan and Erik Nisbet, senior research associate with the ILR Survey Research Institute, commissioned the study, and Ron Ostman, professor of communication, and his students administered it.

And what do you know, Erik Nisbet has a weblog.

The results are reported in two parts:

I’ll focus on the issue of civil liberties for American Muslims.

Statement Agree
All Muslim Americans should be required to register their whereabouts with the federal government. 27%
Mosques should be closely monitored and surveilled by U.S. law enforcement agencies. 26%
U.S. government agencies should profile citizens as potential threats based on being Muslim or having Middle Eastern heritage. 22%
Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising. 29%
Agreed with none of the statements 48%
Agreed with one statement 15%
Agreed with two or more statements 29%

While all of these statements are problematic with respect to civil liberties, the monitoring of mosques and organizations could be useful if limited to specific suspicious cases (as Volokh Conspiracy point out.) Profiling might wrong but is an American institution with a history older than the United States itself. The most egregious one then is the requirement for registering every Muslim in the US. Please note that the statement addresses US citizens specifically.

So who are these 27% who want me to register with the government? According to the survey, 40% of the Republicans, 17% of independents and 24% of Democrats want to require Muslim registration. Does this support depend on how personally afraid of terrorism the survey respondents are? Yes, 24% of those with “low fear” and 37% of those with “high fear” want this restriction. Oh and religion seems to make one more of an asshole in this case. Support for registration increases from 15% (low level of religiosity) to 30% (moderate level) to 42% (high level). However, I am not sure how much of this is an artifact of party identity with Republicans being more likely to be more religious and asshole-ish.

Another interesting thing in the survey is the effect of TV news on the opinions of people. Those with low or moderate levels of religiosity don’t show much variation in their support of Muslim registration based on how much attention they give to the TV news. However, highly religious people are affected a lot by the idiot box with only 26% of those who pay low attention to TV news supporting registration as compared to 56% of those whose attention to TV news is classified as high.

None of this is really surprising. It is easy to give up civil rights when those rights belong to the other rather than you. I also remember a Gallup poll from October 2001 in which 49% wanted Arab Americans to carry a special ID and I posted about the effect of media on misperceptions about the Iraq war.

I don’t think that a general measure like registration of all American Muslims or internment like that of Japanese-Americans in World War II is likely to happen. I also don’t think that the US is becoming fascist. But fascist baby steps can happen in a democracy and one of the important battlegrounds is public opinion as Unqualified Offerings points out.

Given the pro-torture credentials of the Bush administration and the anti-civil-liberties stance of a lot of Republican voters, I don’t understand how any intelligent, reasonable person could have voted for George Bush last month. May be some Bush voter can enlighten me?

And I love the title The Poor Man gave to his post on this topic.

Legal Torture

Obsidian Wings has a very important post about a bill in Congress which will allow the US to legally send suspected terrorists to any country for torture.

The Republican leadership of Congress is attempting to legalize extraordinary rendition. “Extraordinary rendition” is the euphemism we use for sending terrorism suspects to countries that practice torture for interrogation.

[…] As it stands now, “extraordinary rendition” is a clear violation of international law—specifically, the U.N. Convention Against Torture and Other Cruel, Degrading and Inhuman Treatment. U.S. law is less clear. We signed and ratified the Convention Against Torture, but we ratified it with some reservations. They might create a loophole that allows us to send a prisoner to Egypt or Syria or Jordan if we get “assurances” that they will not torture a prisoner—even if these assurances are false and we know they are false.

Here is some information about the bill from Edward Markey, a Massachusetts Congressman’s office.

These are excerpts from a press release one of Markey’s staffers just emailed me:

The provision Rep. Markey referred to is contained in Section 3032 and 3033 of H.R. 10, the “9/11 Recommendations Implementation Act of 2004,” introduced by House Speaker Dennis Hastert (R-IL). The provision would require the Secretary of Homeland Security to issue new regulations to exclude from the protection of the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, any suspected terrorist – thereby allowing them to be deported or transferred to a country that may engage in torture. The provision would put the burden of proof on the person being deported or rendered to establish “by clear and convincing evidence that he or she would be tortured,” would bar the courts from having jurisdiction to review the Secretary’s regulations, and would free the Secretary to deport or remove terrorist suspects to any country in the world at will – even countries other than the person’s home country or the country in which they were born. The provision would also apply retroactively.

Please contact your Congressman and tell him/her to vote against this provision.

And in November, please vote the Republicans out who are thinking up such crazy laws and has been doing what the law would make legal for quite some time now.

Here is the text of the bill (large PDF file; another option is to go here and search for HR10). Sections 3032 and 3033 are the relevant ones.

Air Marshall on No Fly List

I can’t understand why so many so-called libertarians defend no-fly lists and related actions like refusing to let Cat Stevens into the US when it is clear to me, a social democrat, that the government can be quite incompetent. I have posted previously about members of Congress being on no-fly lists but now comes the ultimate amusing incident from the Transportation Security Administration.

Still, the TSA is learning. It recently acknowledged that a Federal Air Marshall, unable to fly for weeks when his name was mistakenly put on the “no-fly” list, was in fact not a threat, and removed his name from the list.

If you still think that such a bad list containing “more than 19,000 names” is worth doing, I hope a name similar to yours accidentally gets put on the list. It took the TSA weeks to correct their mistake when one of their own employees who’s the only law enforcement guy on the plane was unable to fly. How long do you reckon it would take you to correct a mistake like that?

Hat tip: Crooked Timber.

POSTSCRIPT: See Cryptogram about no-fly lists and Newsweek about the Cat Stevens incident.

Pakistanis or Arabs?

Via Al-Muhajabah, I found an interesting article in the Detroit Free Press.

A new national poll challenges the view that Arab Americans were the only victims of bias and profiling after the Sept. 11, 2001, terror attacks.

A survey conducted by Florida-based Bendixen & Associates found that Pakistani Americans reported higher levels of discrimination and government targeting than Americans of Arab descent.

About 31 percent of Pakistani Americans said they have experienced discrimination in their schools, workplaces or neighborhoods over the past three years. Twenty-one percent of Arab Americans made the claim.

When it came to profiling, 16 percent of Pakistani Americans said they had been mistreated or targeted by government officials because of their background, compared with 11 percent of Arab Americans.

Asked who did the profiling, 63 percent of Pakistani Americans said it was local police. Among Arab Americans, 36 percent said they had been targeted by airport security, and 21 percent answered that they had been targeted by local police.

The head of the polling company, Sergio Bendixen, said one reason why Pakistanis reported higher levels of profiling by police officers may be because they, in general, tend to have darker skin than Arab Americans, and therefore may raise the suspicions of some people in law enforcement.

Others said that religion may be a factor. The vast majority of Pakistani Americans are Muslims, while at least half of the Arab-American population is Christian, experts say.

I have anecdotal evidence which supports this article, but anecdotes don’t make data since there is an inherent bias (due to the ethnic composition of the people I know, for example) in my anecdotes. Among my acquaintances, I had noticed that most complaints about profiling and harrassment came from Pakistanis than from Arabs. For example, most of the students I know who were interviewed by the FBI after September 11, 2001 were Pakistanis. I had always put this down to the fact that I know many more Pakistanis than Arabs or Iranians.

No Fly List

Flying frequently between Altanta and Newark, there was a time when I was selected for secondary screening often at the Newark airport but rarely at Atlanta’s Hartsfield-Jackson. But that was in the few months after September 2001. Nowadays, I am almost never singled out for secondary screening. I didn’t mind the extra attention, but would have liked to see some evidence of its benefits to security. The news coverage of the watch lists, however, tells a different story.

The first story from Washington Post tells us about Congressman John Lewis.

For more than a year and a half, Rep. John Lewis has endured lengthy delays at the ticket counter, intense questioning by airline employees and suspicious glances by fellow passengers.

Airport security guards have combed through his luggage as he stood in front of his constituents at the Atlanta airport. An airline employee has paged him on board a flight for further questioning, he said. On at least 35 occasions, the Georgia Democrat said, he was treated like a criminal because his name, like that of Sen. Edward M. Kennedy (D-Mass.), appeared on a government terrorist watch list.

While Kennedy managed to get security officials to end his airlines hassles after three weeks of trying, Lewis had no luck for months. Then he found his own way around the security mess.

Lewis added his middle initial to his name when making his airline reservations. The computer system apparently didn’t flag tickets for “Rep. John R. Lewis,” and the hassles suddenly ended.

“The ‘R’ is the only thing that has been saving me,” Lewis said from Atlanta yesterday.

Amazing that a congressman couldn’t get off the government watch list. Being a Pakistani, that rings alarm bells for me. In Pakistan, we had somethign called an Exit Control List. People on that list were not allowed to get out of Pakistan. It usually includes names of criminals as well as politicians. Until a few years ago, when you arrived at the airport, some law enforcement guy would check your name in the list which was maintained in a notebook. That was quite a hassle.

More amazing is the fact that avoiding attention from airport security is as easy as using or not using your middle initial. Of what use is such a list?

Senator Edward Kennedy was also on the watch list.

Between March 1 and April 6, airline agents tried to block Mr. Kennedy from boarding airplanes on five occasions because his name resembled an alias used by a suspected terrorist who had been barred from flying on airlines in the United States, his aides and government officials said.

Instead of acknowledging the craggy-faced, silver-haired septuagenarian as the Congressional leader whose face has flashed across the nation’s television sets for decades, the airline agents acted as if they had stumbled across a fanatic who might blow up an American airplane. Mr. Kennedy said they refused to give him his ticket.

“He said, ‘We can’t give it to you,’ ” Mr. Kennedy said, describing an encounter with an airline agent to the rapt audience. ” ‘You can’t buy a ticket to go on the airline to Boston.’ I said, ‘Well, why not?’ He said, ‘We can’t tell you.’ “

“Tried to get on a plane back to Washington,” Mr. Kennedy continued. ” ‘You can’t get on the plane.’ I went up to the desk and said, ‘I’ve been getting on this plane, you know, for 42 years. Why can’t I get on the plane?’ “

[…] In Mr. Kennedy’s case, airline supervisors ultimately overruled the ticket agents in each instance and allowed him to board the plane. But it took several weeks for the Department of Homeland Security to clear the matter up altogether, the senator’s aides said.

Just days after Homeland Security Secretary Tom Ridge called Mr. Kennedy in early April to apologize and to promise that the problems would be resolved, another airline agent tried to stop Mr. Kennedy from boarding a plane yet again. The alias used by the suspected terrorist on the watch list was Edward Kennedy, said David Smith, a spokesman for the senator.

I guess it is always good to know the Director of Homeland Security. Some things never change. Access to high officials is always useful.

It seems that “John Lewis” and “Edward Kennedy” are names or aliases terrorists have used. Let us see how common these names are. “John” is the first name of 3.271% of the male population of the US while “Edward” is that of another 0.779%. Only about 0.226% of the people in the US have the last name “Lewis” while the figure for “Kennedy” is 0.067%.

Let us assume that first and last names frequencies are independent of each other (not really true). Then the frequency of someone named “John Lewis” would be 0.03271 × 0.00226 = 0.0000739246 or 0.00739246%. This means there are probably more than 20,000 people named “John Lewis” in the US. A similar analysis for “Edward Kennedy” gives us about 1,500 people.

Were all those 20,000 John Lewis’ being searched at the airport? Is such a system even feasible?

The question regarding all these security measures is whether they help make us safe or are they just for make-believe.

Do They Look Like Me?

You might have heard about the terror induced by 14 Syrian musicians on a Northwestern flight.

There is no doubt that something out of the ordinary happened on Northwest Airlines Flight 327 from Detroit to Los Angeles on June 29. The plane was met at the airport by squads of federal agents and police responding to radio messages from the pilots about concerns that 14 Middle Eastern male passengers had spent the four-hour flight acting suspiciously.

But was the episode a dry run for a terrorist attack, as is now being widely suggested on the Internet and on talk radio, or an aborted terrorist attack? Or was it an innocent sequence of events that some passengers, overcome by anxiety and perhaps ethnic stereotyping, misinterpreted as a plot to blow up their plane?

It started with a 3,300-word story by Annie Jacobsen who was on the flight. Her narrative reads like one right out of a creative writing class. I agree with Donald Sensing that “Annie’s story is simply a scarily well-written shaggy-dog story.” Lots of bloggers have commented on the article, some skeptical while others feel scared or worse.

Aziz Poonawalla writes about the suspicious things he has done on an airplane. I fly quite frequently, but haven’t noticed anyone staring at me. However, I usually read a book at the gate and in the plane. I have been asked a couple of times where I am from after someone sitting next to me heard me speaking in Urdu to Amber on the cellphone. Depending on my mood and sunspots, I give different answers to that question.

This incident reminded me of the three medical students who were supposedly heard making terrorist plans in a restaurant in Georgia about two years ago.

The scare began when Eunice Stone said she overheard the three Muslim men at a Shoney’s restaurant Thursday morning making suspicious comments. At one point, Stone said the bearded man said if Americans “were sad on 9/11, wait until 9/13.”

Stone said she heard one of the men ask “Do you think we have enough to bring it down?” Another one of the men replied, “If we don’t have enough to bring it down, I have contacts and we can get enough to bring it down.”

“To me, that meant they were planning to blow up something,” she said.

She called authorities, who in turn issued the bulletin for authorities to be on the lookout for the vehicles. The men were pulled over at 1 a.m. Friday on Alligator Alley, after one of the cars allegedly went through a toll booth without paying.

In the end, it turned out the guys were innocent. It never was clear who was speaking the truth, the three Muslims or Ms. Stone, but PhotoDude had his preferences:

In the end, I, a 44 year old who’s lived in Georgia for 24 years, am left to believe people I don’t know: either a 44 year old woman from Georgia and her son, or these three men. Now, I don’t know Eunice Stone, but after 24 years in this state, I know Eunice Stone’s type.

[…]I’m very thankful the day ended with no one injured, and no one even in jail. But if I have to believe one version or another of the story, I think you know which one I choose.

I guess I can play that game as well. I also don’t know any of the people involved. But having lived in Georgia for almost 7 years and visited north Georgia quite a lot, I have heard stories about the small-town people there being nice and polite and sometimes suspicious of strangers, especially those who look different. This was definitely the case before September 2001 and I doubt it has changed now. On the other hand, I don’t know the Muslim medical students but two of them seem to be Pakistani-Americans and I know the type.

In the end, no one was injured, as PhotoDude noted, and no one was jailed, but the students lost their medical internship in Florida because the hospital received numerous threats (by anti-Muslim bigots, I assume).

Where am I going with this? Obviously, I am not blogging to criticize a 2-year-old post by PhotoDude. I was reminded of this somewhat “tribal” behavior that we are all guilty of at times because of an excellent blog post by Katherine. She starts out with the September 11 terrorist attacks.

I won’t describe where I was that day, or what I felt; you obviously remember where you were and what you felt. You saw the same images I saw. I would guess that even now, when there has been more time since an attack than you thought we would ever have again, you can imagine the worst case scenario. Perhaps in New York, perhaps in your own city. The fires and the frantic cell phone calls. The bewildered crowds fleeing the clouds of ash on foot. The full or eerily empty emergency rooms. You probably cannot come much closer than I can to understanding what it would really feel like to be trapped there, or to find out that your family member had vanished. But voluntarily or involuntarily, consciously or subconsciously, you have made the attempt. It is a plausible scenario.

The opposite extreme is not plausible. You cannot imagine the stray air strike that hits the apartment building. Not the relative or friend disappeared, not into the air but into some unknown prison. Not the deportation to a country you can barely remember. Not the questions you know you can never answer to their satisfaction, because you are innocent. Not the complete powerlessness of solitary confinement for—you have no idea when it will end, or if it will end. Certainly not the abuse or torture..

Her whole post is worth reading. Her point is that most of us cannot empathize with the victims of torture at Abu Ghraib or the immigrants who were abused in detention immediately after September 11 or the 14 Syrians who were most likely innocent musicians or the three medical students or Pakistani-American Ansar Mahmood.

If Mahmood had not decided to pose for a souvenir snapshot taken by a co-worker on a sparkling fall day in October 2001, he might still be in Hudson, dutifully spending money to his family in Pakistan. But the scenic setting that Mahmood chose for this photo was a water-treatment plant with the Catskill Mountains in the background. Amid the post-9/11 hysteria, employees of the plant alerted police that a possible terrorist was photographing this vulnerable target.

[…]Because he held a green card and the initial suspicions that he wanted to poison the water supply were so exaggerated, Mahmood won release within a week. But a search of his apartment led to the discovery that Mahmood had co-signed a lease for a Pakistani couple who were in the country illegally. In an interview with The New York Times, Mahmood later explained that he had not inquired about the couple’s immigration status. “They never ask me if I have a green card, and I cannot ask them either.”

Reflecting the get-tough attitudes of the months after 9/11, federal officials charged Mahmood with the felony offense of “harboring aliens.” On the advice of his court-appointed lawyer, Mahmood pleaded guilty in federal court in January 2002, accepting a lenient sentence of probation and time served.

Our story might have ended there with a sadder-but-wiser Mahmood learning that he should not be so eager to do favors for his fellow Pakistanis. But the revised 1996 immigration law eliminated discretion in a situation like Mahmood’s. As soon as he uttered the word “guilty,” Mahmood was subject to deportation. He was moved to the Batavia detention facility, as his appeals process worked its way through the courts.

After more than two years in prison, Mahmood lost his last legal gambit Tuesday [June 29, 2004].

A lot of photogrophers and other civil libertarians have talked about the restrictions put on photography in recent times, but most Americans won’t have the misfortune of being an immigrant from Pakistan and hence have all their life scrutinized because they took a photograph. In that scrutiny, law enforcement might find a crime, a technical violation of immigration law or even some blunders by immigration authorities which affected the immigrant’s status.

Or consider the case of Ian Spiers whose tale of harassment because of photography is detailed here.

There are lots of other examples, like Maher Arar, a Syrian Canadian who was sent to Syria by US authorities to be tortured and interrogated.

I am a political liberal and a secular Muslim. I detest the terrorists and thugs who kill in the name of my religion. I am dismayed at the lack of democracy and civil liberties in Pakistan. However, when I read about incidents like the ones described in this post, I remember that like Ansar, I am a Pakistani immigrant to the US; like the Syrians on the Northwestern flight, my native language is written in the Arabic scrript; and so on. For me, unfortunately, these things are not beyond imagination. I can easily think of myself in their shoes and the feeling I get is scary. At a rational level, I understand that the US is a better place in terms of liberty than most other countries and that the chances of anything bad happening to me or my family are quite minute. I just hope that we get over these “tribal” attitudes and get to the task at hand: getting rid of terorrism and spreading democracy and human rights around the world.

UPDATE: Unmedia has an update of the Jacobsen and Syrians in flight story.

UPDATE II: Time has an interview with a Federal Air Marshall on the plane.

Torture, Emperor and Forgetfulness

Via Mark Kleiman, I came upon the story of the torture memo in the Wall Street Journal.

Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department.

The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren’t getting enough information from prisoners.

[…]The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than “obtaining intelligence vital to the protection of untold thousands of American citizens,” normal strictures on torture might not apply.

This hypothetical has been invoked lots of times by supporters of torture. However, it assumes perfect information: We know an attack is coming, but not when, where, what; we have a guy in custody who we know that he definitely knows about the attack; and he’ll tell us about the attack when tortured. In the real world, we never have that information. The guy we have in custody might be innocent or our intelligence about a terrorist attack might be wrong, etc.

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the “necessity” of using such methods to extract information to head off an attack, or “superior orders,” sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no “moral choice was in fact possible.”

Hey, it’s not me comparing these guys to the Nazis, they are doing that themselves.

[…]Foremost, the lawyers rely on the “commander-in-chief authority,” concluding that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Moreover, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president,” the lawyers advised.

Likewise, the lawyers found that “constitutional principles” make it impossible to “punish officials for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts could “require or implement the prosecution of such an individual.”

What better proof that the United States is turning from a republic into an empire than that the President wants to be emperor who can flout all laws.

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a “presidential directive or other writing” that could serve as evidence, since authority to set aside the laws is “inherent in the president.”

[…]For members of the military, the report suggested that officials could escape torture convictions by arguing that they were following superior orders, since such orders “may be inferred to be lawful” and are “disobeyed at the peril of the subordinate.” Examining the “superior orders” defense at the Nuremberg trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley for the My Lai massacre and the current U.N. war-crimes tribunals for Rwanda and the former Yugoslavia, the report concluded it could be asserted by “U.S. armed forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.”

That Nazi thang again!

A redacted version of the torture memo is online now (Newsweek also has a version of the memo with different missing pages.) It’s a long document and probably more useful for the lawyers, but I’ll note that it says that the Justice Department has ruled war crimes permissible against the Taliban and Al-Qaeda (see footnote 14 on page 17.)

Talking about lawyers, what better lawyer blogger to read on this topic than Phil Carter of Intel Dump. You should read his post (or his article in Slate) in full but I’ll excerpt only the punchline:

It is, quite literally, a cookbook approach for illegal government conduct. This memorandum lays out the substantive law on torture and how to avoid it. It then goes on to discuss the procedural mechanisms with which torture is normally prosecuted, and techniques for avoiding those traps.

Unqualified Offerings argues that this memo shows systemic corruption in the administration and that the story is much bigger than torture now.

Political Animal provides a timeline of all the torture memos we have heard about so far. It seems the discussion on torture started almost immediately after the September 11, 2001 terrorist attacks and has gotten worse over time.

Balkinization has a fascinating post about the history of claims that the US President is above the law in some respect. He is also ashamed to be a lawyer seeing that the torture memo is a lawyerly work.

Discourse.net mentions that the memo’s position on Guantanamo is opposite that of the government in the Supreme Court case about the detainees there. The torture memo argues that Guantanamo is inside the US for jurisdictional purposes and so the overseas torture act does not apply there.

Beautiful Horizons has a good Q&A about the topic.

According to the New York Times, only the State department lawyer dissented from the torture policy of this memo.

President Bush was asked about the memo.

Asked whether he has seen the memos, Bush replied, “I can’t remember if I’ve seen the memo or not.”

You might also want to read about the military police soldier Specialist Baker who was severely beaten up in Guantanamo in a training exercise where he played the role of a prisoner. According to Baker, he was discharged because of the injuries he sustained from that beating. The army denied that at first, but now admits that those injuries were part of the reason.

All the reports about torture must also lend credence to the stories of the four British Guantanamo detainees who were released in March. At the time, I was skeptical about their allegations of torture and abuse

Brad Delong reports on a talk by journalist Seymour Hersh, who broke the Abu Ghraib torture story, at the University of Chicago in which Hersh says that there is much more to come about torture and disappearings. Channeling Teresa Nielsen Hayden, I have to say I deeply resent the way this administration makes me feel like a nutbar conspiracy theorist.

Spy? Adulterer? Both?

I blogged about the arrest of Chaplain Captain James Yee who was charged with disobeying an order for allegedly taking classified material from Guantanamo and improperly transporting it. Now, his case has taken a strange turn.

The U.S. military on Tuesday charged a Muslim chaplain accused of taking classified material from the U.S. prison for terrorist suspects at Guantanamo Bay, Cuba, with adultery and storing pornography on a government computer.

The new charges include making a false statement, storing pornography on a government computer and having sexual relations outside marriage, which violates military law.

Does the US military prosecute adultery allegations? Does that happen often? I am completely ignorant here, so help me out.

Raul Duany, a spokesman for the U.S. Southern Command, said the military released Army Capt. James Yee from custody and will allow him to return to duty at a base in Georgia.

He’s being released. Does that mean he’s not a dangerous spy? He’s also starting regular duty. Seems strange to me, but I know nothing about the military.

Yee will be prohibited from having contact with prisoners at Guantanamo, the spokesman said.

Do the previous charges still stand? Or have they been dropped?

Since I have no idea about military law, I checked Phil Carter’s weblog. Phil is a former army officer and currently a law student.

The case of CPT James Yee, the Muslim chaplain suspected of espionage at Guantanamo Bay, took a strange turn today when the Army decided to release him from the military brig at Charleston to regular duty at Fort Benning, GA. The Army also added new counts to his current charges of mishandling classified information, including allegations of adultery, storing pornography on a government computer, and disobeying a lawful order. The next step for CPT Yee is an Art. 32 hearing, which is somewhat like a grand jury hearing, and then he may face a general court martial for his actions. Suffice to say, the stakes are much lower than when I wrote this article arguing for capital punishment in this case. But I still think there is more here than meets the eye. I expect we’ll see more charges in the near future — more to follow.

I hope he has more because I am thoroughly confused.

(Via Talking Points Memo.)

UPDATE: Also, see this NY Times article.