Earlier this month, the newly-minted chairman of the House Intelligence Committee, Rep. Mike Rogers, a conservative Republican from Michigan, introduced a bill to extend the law until February 2012.

Since the wording of his bill is virtually identical to the measure quietly passed by Congress last year, approval of the latest extension is likely to occur with little resistance and virtually no debate.

The three provisions likely to remain allow investigators to use “roving wiretaps” to monitor suspects who may be trying to escape detection by switching cellphone numbers; use so-called National Security Letters (NSLs) to obtain from third parties the business records of national security targets; and track “lone wolf” suspects who may not be members of any terrorist organization but who may be acting alone in planning attacks.

The NSL provision is arguably the most controversial part of the law. NSLs are requests for records the FBI can use to obtain people’s communication, financial and credit information. No court needs to approve these requests, nor does the FBI have to suspect you of anything. The agency is required only to certify that you are “relevant” to an investigation.

A 2008 audit by the Department of Justice (DOJ) Inspector General found that in the mid-2000s, the FBI issued more than 50,000 NSLs, often seeking information about U.S. citizens and people several times removed from an actual suspect. The DOJ report confirmed that the FBI “regularly abused its ability to obtain personal records of Americans without a warrant.”

If the bill is passed, it would be the second time the president has broken his campaign promise to curtail the surveillance powers given to the FBI when the act was passed by a frightened Congress in the aftermath of the terrorist attacks of September 11, 2001. The original law was approved with only one dissenting vote – from Senator Russ Feingold, Democrat of Wisconsin, who was defeated in the recent mid-term election.

As a presidential candidate in 2007, Obama promised there would be “no more National Security Letters to spy on citizens who are not suspected of a crime” because “that is not who we are, and it is not what is necessary to defeat the terrorists.”

Obama’s campaign website noted that the then-Senator said he would support an extension of the Patriot Act that strengthened civil liberties protections. But he voted to extend the law in 2005 and 2008, without such increased protections, and also quietly signed last year’s extension into law.

FBI and Department of Justice officials maintain that restricting their authority to conduct warrantless searches would harm national security.

Most recently, Obama’s DOJ issued an NSL to Twitter, seeking information on the 635,561 users, including media, who followed the WikiLeaks outlet.

The author of the current bill, Rep. Mike Rogers, is a former Army officer and FBI Special Agent who investigated organized crime and public corruption in Chicago in the early 1990s. He has recently recommended the execution of Bradley Manning, the army private suspected of providing the secret and confidential documents now being released by Wikileaks.

With a few notable exceptions, the civil liberties community has been uncharacteristically quiet on the impending extension of the law.

One of the exceptions is Chip Pitts, former Chair of Amnesty International USA and former president and current board and executive committee member of the Bill of Rights Defense Committee (BORDC).

Pitts told The Public Record, “It’s nothing less than tragic that the Patriot Act is about to be renewed again without any significant resistance by our leaders — political or NGO – or our citizenry.”

Pitts says the BORDC is lobbying Congress on this and other issues on January 27. He said he is “appalled” at the lack of public and organizational opposition, and hopes that “people will go to our website at www.bordc.org and sign up to join us.”

He declared, “It’s clear that without much greater citizen awareness and activism, the institutionalization of this and other egregious infringements on freedom – ranging from routine massive surveillance to indefinite detention to TSA gropes and irradiation – will simply calcify into permanent features of the American legal, political, and cultural landscape.”

“Terrorism doesn’t pose an existential threat to America, but these developments do. We must all act while we still can, and encourage our neighbors and friends to do so,” he said, adding that if there is no public pushback, “This is how democracy dies.”

Requests for comment from The Public Record to civil liberties organizations that ordinarily conduct vigorous opposition to the Patriot Act and other bills that restrict freedoms remain unanswered.

But the Patriot Act is of interest to groups other than those on the left. For example, Julian Sanchez of the libertarian Cato Institute says, “In the absence of a major scandal, though, it’s hard to see why we should expect the incentives facing legislators to be vastly different a year from now.”

He added. “I’d love to be proven wrong, but I suspect this is how reining in the growth of the surveillance state becomes an item perpetually on next year’s agenda.”

Sanchez writes, “A year ago, the protracted wrangling in Congress over the re-authorization of several expiring provisions of the PATRIOT Act made plenty of headlines. Most observers expected the sunsetting powers to be extended, but civil libertarians hoped serious and sorely needed reforms might be part of the package.

“The House and Senate Judiciary Committees held multiple hearings on the topic, and an array of competing reform and reauthorization bills (PDF) were proposed, adding extra safeguards (of varying stringency) to the greatly expanded surveillance powers Congress had approved in the aftermath of the 9/11 attacks.

“But Congress had a full plate, and so it punted—approving a straight one-year reauthorization without any modifications at the last minute. (You’d be forgiven for not noticing: The extension passed under the heading of the “Medicare Physician Payment Reform Act.”) As I noted in December, however, the Justice Department has promised Congress that it will voluntarily adopt some of the measures that had been floated in those reform bills—which would be a fine thing in itself, but I worried that the move seemed calculated to reduce the impetus for binding legislation.

“Well, I’ve just noticed—quite serendipitously, as there doesn’t appear to have been a whisper in the press—that the new House Intelligence Committee Chair, Mike Rogers, has introduced yet another one-year extension, which would push the sunset of the expiring provisions back to the end of February 2012.”

Sanchez writes, “Given the very limited number of days Congress has in session before the current deadline, and the fact that the bill’s Republican sponsor is only seeking another year, I think it’s safe to read this as signaling an agreement across the aisle to put the issue off yet again.”

Most recently, the FBI has asked Congress to expand its authority under the NSL section. It wants the statute that allows it to issue NSLs for phone records, and a limited set of email records, to be expanded to allow the FBI to demand a wide range of Internet activity records as well.

The FBI isn’t defining what kinds of Internet records it wants. But some have pointed out that the FBI’s proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.

The blog of the American Civil Liberties Union contains one of the relatively few pronouncements to come from the organizations that usually pressure Congress to strengthen the protection of civil and human rights.

The ACLU blog headline reads, “FBI’s Latest Power Grab Is a Bold and Unnecessary Move.” In the absence of similar expression of opposition from other groups, the ACLU blog is worthy of quoting at length:

It says: ”What do the ACLU, the former director of the NSA and a tech industry lawyer all have in common (and this is not a joke)? They believe that the government’s recent request to let the FBI get Americans’ Internet use records in national security investigations without going to court, and without any suspicion of wrongdoing, is a huge expansion of authority that would open floodgates of sensitive information to the FBI.”

The ACLU adds, “The FBI is asking that the statute that allows it to issue NSLs for phone records, and a limited set of email records, be expanded to allow the FBI to demand a wide range of Internet activity records as well. The FBI isn’t defining what kinds of Internet records it wants. But some have pointed out that the FBI’s proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.

“If you’re reading this, you obviously use the Internet and know what incredibly sensitive information you put out there each day in an attempt to learn, read, educate yourself and communicate with others. We believe, as you probably do, that Internet records are especially sensitive and need to be protected from FBI snooping by a court order and suspicion requirements.

“The Obama administration says Internet records are the same as the phone records that they are already getting with NSLs. But looking at a list of websites a person visits can tell you a lot more about his or her life than a list of phone numbers and, as mentioned above, law enforcement can create a complete picture of the most sensitive aspects of a person’s life by obtaining a list of his or her internet habits.

“Trust us,” says the ACLU blog. “The administration claims that it can’t get “content,” or the meaning of your communications, just the records of who you contact. However, there isn’t a clear and binding rule on whether or which Internet records are content. The administration has said in the past —and has not yet clarified in this debate — that it considers some Internet records to be content and protected by court order.

It is essentially asking Congress and the public just to trust them to make a call on what Internet records should be obtained by the FBI. Regardless of what legal jargon the administration unilaterally has decided covers Internet records, they need to be protected. Congress has the ability and the responsibility to protect our privacy, and it needs to reject administration attempts to authorize this collection.

“Terrorist threats overrule privacy protections (as usual): Just as the government always argues in its attempts to eviscerate the role of the courts, the Obama administration says it needs to be more “nimble,” and going to court is prohibitively burdensome. But getting innocent Americans’ private records is not supposed to be easy, nor should it be.

“There must be a check of an independent judge and a requirement that you are suspected of doing something wrong. The Fourth Amendment creates a presumption of privacy and does not contain an “inconvenient paperwork” exception. If we are talking about true emergencies, the government already has the authority to get records and follow process after the fact. All of our national security laws have emergency exceptions that allow them to respond to immediate threats.

“Besides, the Justice Department Office of Legal Counsel memo clarifying that most Internet records could not be obtained by NSL was written in November 2008. The administration has undoubtedly been getting these records through other means for almost two years, just with tools that have at least minimal checks and balances.

“This is not ultimately about getting the records; but about doing so in a way that trades convenience for privacy. The administration is asking Congress to give the FBI more of your private information without even going to a judge. We’re asking Congress to reject this power grab and side with the Constitution — just as their oath of office demands,” the ACLU blog concludes.

Under the original NSL provision, the FBI also was given the power to prohibit any Internet service provider, bank or credit company from which it demands sensitive customer records from ever disclosing anything about the record demand — not even to their own attorneys. In other worlds, a “gag rule.”

The ACLU, the American Library Association, and other groups, challenged the constitutionality of this “gag” power in three cases. The result: A federal appeals court ruled unanimously that it is unconstitutional to gag recipients of a National Security Letter from discussing its receipt unless disclosure might interfere with “an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

The decision in Doe v. Mukase by the 2nd U.S. Circuit Court of Appeals upheld a September 2007 district court ruling, although the appeals court narrowed the circumstances under which the FBI can enjoin a provider of internet access, interpreted as including libraries, from revealing the receipt of a National Security Letter demanding the e-mail addresses and websites accessed by one or more users.

American Library Association President Jim Rettig hailed the ruling as “protect[ing] our First Amendment freedoms by placing reasonable limitations on the FBI’s ability to impose a gag order when issuing National Security Letters” as well as “requiring meaningful judicial review when an NSL gag order is challenged”—a process that stretched to 18 months for four Connecticut librarians who successfully fought the NSL they received in 2005. However, he also expressed concern that the decision “does not address the constitutionality of the FBI’s use of NSLs to obtain an individual’s personal data.”

“We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words ‘national security,’” said Melissa Goodman, staff attorney with the ACLU National Security Project.

“This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government’s dangerous gag power and rejected the Bush administration’s position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics,” she said.

But that was in 2007.

This week, The Public Record asked leaders of the most prominent civil and human rights groups to explain their relatively passive position on the renewal of the Patriot Act. Most did not respond. One who did requested that his name not be used because he is still hoping to energize some of the silent voices.

This is what he told us:

“Many of my colleagues have just given up on the Patriot Act, either expressly or implicitly (in terms of the mindshare, energy, and resources dedicated to the issue). They don’t seem to understand or recall just how foundational this supposedly ‘emergency’ law was in setting the stage for the infringements that came later.”

He continued: “Sheer exhaustion plays a role, but the fact that it’s been nearly a decade means that generational change is even starting to have an impact, as have all the other irons in the fire — so many other traumatizing events have come up to distract and rightfully demand attention (torture, even broader surveillance, illegal war, assassinations), and a corrosive new so-called realism (cynicism, actually) about the politics of terrorism and the complicity of our fear-driven media and political class, combined of course with a reluctance to undermine our first black president and whatever incremental progressive achievements he can make.”

He concluded: “So the situation’s pretty bleak out there, and will only turn around, in my view, if there is much greater bottom-up, local, and peer-to-peer, community-to-community activism.”

William Fisher, a regular contributor to The Public Record, has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

The Service Women’s Action Network (SWAN), the American Civil Liberties Union, and the ACLU of Connecticut are charging that military sexual trauma (MST) results from these kinds of acts, which they say occur nearly twice as often within military ranks as they do within civilian society.

The lawsuit was filed in the U.S. District Court in New Haven, Connecticut against the Department of Defense and Department of Veterans Affairs because the government failed to respond to Freedom of Information Act requests.

“The government’s refusal to even take the first step of providing comprehensive and accurate information about the sexual trauma inflicted upon our women and men in uniform, and the treatment and benefits MST survivors receive after service, is all too telling,” said Anuradha Bhagwati, a former Marine captain and Executive Director of SWAN.

“The DOD and VA should put the interests of service members first and expose information on the extent of sexual trauma in the military to the sanitizing light of day,” she added.

The lawsuit is to “obtain the release of records on a matter of public concern, namely, the prevalence of MST within the armed services, the policies of the DOD and VA regarding MST and other related disabilities, and the nature of each agency’s response to MST.”

Sandra Park, staff attorney with the ACLU Women’s Rights Project, told The Public Record, “The known statistics on military sexual trauma suggest that sexual abuse is all too prevalent in our military. But we know that many service members who suffer from abuse are not receiving the treatment they need. The truth about the extent of this abuse and what has been done to address it must be made known.”
MST is particularly widespread among servicewomen, many of whom struggle to return to civilian life after suffering sexual assault or harassment while serving. While the number of homeless veterans has declined over the past 10 years, the number of homeless women veterans has doubled. In fact, 40 percent of homeless women veterans have been sexually assaulted while serving in the armed forces.

In 2009, the DOD estimated there were some 3,200 cases of MST. Lawyer Park suggested this was a significant under-count.

Survivors’ VA disability claims are often rejected because they cannot prove an initial assault or rape, even if the veteran has been diagnosed with post-traumatic stress disorder by a VA military sexual trauma counselor.

“The government is failing to care for the overwhelming number of women who so desperately need help coping with something as devastating as rape, sexual assault and harassment,” said Andrew Schneider, Executive Director of the ACLU of Connecticut. “These women have already put their lives on the line by serving their country. The least that the government can do is disclose the scope of the problem.”

The ACLU’s Park was asked why the military doesn’t want to disclose this information?

“The Defense Department (DOD) has acknowledged that the statistics are shocking. But since so much of this abuse goes unreported, there has been no systematic effort to collect data that would suggest the size of the problem,” she said, adding:

“Nor has there been and systematic effort to reform the system. The government just doesn’t want the adverse publicity that would result if the scope and true cost of this problem were publicly known.”

She said documents obtained would be made public. They would also be shared with DOD the Veterans Administration. “The VA needs these records to develop policies for collecting and maintain records and crafting fact-based treatment plans” for victims of MST.”

William Fisher, a regular contributor to The Public Record, has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

mam Anwar al-Awlaki in Yemen October 2008. Photo: Muhammad ud-Deen/Wikimedia.

What an incredible era we live in!

Earlier this week in federal court, Justice Department attorney Douglas Letter argued against a lawsuit brought by both the ACLU and the Center for Constitutional Rights (CCR) that the U.S. executive power had the right to kill an American citizen abroad, without review by the judiciary. In his argument to drop the suit, brought on behalf of the father of “radical” Muslim cleric Anwar Al-Aulaqi [Awlaki], Letter claimed, ““If we use lethal force we do so consistent with the law.”

According to the Christian Science Monitor story on today’s proceedings:

The lawsuit does not seek to prevent the government from carrying out targeted killings. Instead, the ACLU is asking Judge Bates to examine the government’s criteria for placing Awlaki on the alleged kill list.

To justify lethal action, the ACLU suit says, the government must be able to demonstrate that the targeted killing is necessary to prevent a direct and imminent threat to public safety. In addition, the suit says, the government must be able to show there are no non-lethal options available to neutralize a threat from Awlaki.

According to a joint press release by ACLU and CCR:

“If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state,” said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. “It’s the government’s responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution.”

Chickens and Coincidences

It seems strongly coincidental that on the day of the hearing, a new Awlaki video should appear on the scene, courtesy of the dubious SITE Institute, remembered for their unveiling of another timely video, the 2007 Osama bin Laden 9/11 statement, which featured a robotic, unmoving bin Laden, which even MSNBC questioned as faked. Then there was that Gainsville, Georgia chicken farm, whose lawsuit against SITE is still pending, accused by SITE of funneling money to terrorists. SITE’s founder Rita Katz delivered one of the more memorable of all “war on terror” quotes when she told 60 Minutes, “”Chicken is one of the things that no one can really track down.”

Now SITE is back, with a new name (from SITE Institute to SITE Intelligence Group), with a new fire-snorting Awlaki video, just in time for the government’s arguments to dismiss the suit that would challenge the government’s right to kill the U.S.-born cleric, supposedly hiding out in Yemen, a leader of Al Qaeda on the Arabian Peninula (AQAP). The New York Times led the way with a blog story by Robert Mackey this morning, “Kill Americans, Says Yemeni-American Cleric.” The story followed the news last week that You Tube had removed all of al-Awlaki’s videos from its site. Mackey references SITE and their new Awlaki video, while blandly noting that Monday was the day “a federal judge will hear arguments in a lawsuit brought by civil libertarians who claim that the Obama administration does not have the right to order the targeted assassination of Mr. Awlaki and other suspected militants.” Gee, what a coincidence the headline for that same Monday article quotes the same Mr. Awlaki as inciting the killing of Americans. As is often the case, the rest of the U.S. press stood up and saluted as the Times sent the story up the proverbial flagpole.

“How popular will Anwar al-Awlaki’s latest video be?” asks the Christian Science Monitor. CNN weighed in, too: “U.S.-born cleric rails against Yemen, Iran, United States.” Paula Kruger at Australia’s ABC was not to be outdone, however, with a headline clanging in its clarion call of danger: “US-born cleric calls for death of all Americans.”

ANWAR AL-AWLAKI (translation): Do not seek any permission when it comes to the killing of the Americans. Fighting the devil doesn’t need a religious edict, deliberation, prayer or guidance. They are the party of the devil and fighting them is the personal duty of our times.

We reach that moment when it is either us or them. We are two opposites that will never meet. They want something that cannot happen unless they wipe us out. This is a decisive battle. This is a battle of Moses and pharaoh; this is a battle of righteousness and falsehood.

“We reach that moment when it is either us or them.” Well, if it was your head being hunted by the CIA or the Pentagon’s JSOC Special Forces assassination squads, you might see the world that way, too. In fact, the blurriness of right and wrong is only made worse by the U.S. assertion that it can kill whomever it wants to, irregardless of constitutional niceties, if only it can claim the right is somehow lodged in the 9/11-inspired Authorization for Use of Military Force. Congress has rubber-stamped the AUMF for years now, and President Obama dutifully pressed it upon a Democratic Party-controlled House and Senate… well, once controlled, as Democratic Party lassitude in the wake of the worst economic recession, if not depression, in sixty years saw their short lived ascendancy in both houses of Congress come crashing down around their well-deserving heads.

Mackey at the Times makes sure we don’t forget that Awlaki is associated with AQAP, which smuggled — no doubt in Mackey’s mind — those bomb packages on freight cargo jets last month. And he notes that a Yemeni judge has issued an order for Awlaki’s capture. But, in the tradition of open-mindedness so bally-hooed around the Times, he gives the final word to legal pundit Jonathan Turley, who noted last August:

If a President can unilaterally kill a U.S. citizens on his own authority, our court system (and indeed our constitutional rights) become entirely discretionary. The position of the Administration contains no substantial limitations on such authority other than its own promise to make such decisions with care.

Bathed in Blood

“War is the statesman’s game, the priest’s delight, The lawyer’s jest, the hired assassin’s trade,” wrote the Romantic English poet Percy Bysshe Shelley almost 200 years ago now. But one can only look back to an interesting story in the London Times to gain another kind of perspective on the current events surrounding the obscene U.S. argument for assassinating its own citizens without due process, of running hit teams and killing or death lists.

In 1976, journalist Peter Watson was at a NATO conference in Oslo, when a U.S. Navy psychologist, Dr. Thomas Narut, from the U.S. Naval Hospital in Naples told Watson and New Jersey psychologist Dr. Alfred Zitani, that the Navy sought men to train as assassins in overseas embassies. The following is from the London Sunday Times, “The soldiers who become killers,” September 8, 1974, but reproduced from a conspiracy site, as the original, and most references to it, plentiful even when I first read about it some years ago, are limited now to a few dozen conspiracy sites. The story is also told at some length in Watson’s book (out of print), War on the Mind: The Military Uses and Abuses of Psychology, published by Basic Books in 1978.

[Narut's] naval work involved establishing how to induce servicemen who ma[y] not be naturally inclined to kill, to do so under certain conditions. When pressed afterwards as to what was meant by “combat readiness units,” he explained this included men for commando-type operations and – so he said – for insertion into U.S. embassies under cover, ready to kill in those countries should the need arise. Dr. Narut used the word “hitmen” and “assassin” of these men.

The method, according to Dr. Narut, was to show films specially designed to show people being killed and injured in violent ways. By being acclimated through these films, the men eventually became able to dissociate any feelings
from such a situation. Dr. Narut also added that U.S. Naval psychologists specially selected men for these commando tasks, from submarine crews, paratroops, and some were convicted murderers from military prisons. Asked whether he was suggesting that murderers were being released from prisons to become assassins, he replied: “It’s happened more than once.”

The story goes into various mind-control methods by which the training was done. The Pentagon denied the story, and also wouldn’t allow Watson access to interview personnel at the U.S. Naval Neuropsychiatric Center in San Diego, where the training was supposedly done. The whole tale might seem fantastic, unless one remembered that the U.S.-sponsored Phoenix Program in Vietnam was responsible for the assassination of 20,000 or more people in the 1960s. The U.S. also supplied assassination lists to the Indonesian government during the bloody 1965 coup that slaughtered half a million people.

“For the first time, U.S. officials acknowledge that in 1965 they systematically compiled comprehensive lists of Communist operatives, from top echelons down to village cadres. As many as 5,000 names were furnished to the Indonesian army, and the Americans later checked off the names of those who had been killed or captured, according to the U.S. officials,” Kathy Kadane wrote for South Carolina’s Herald-Journal on May 19, 1990. [Kadane's article also appeared in the San Francisco Examiner on May 20, 1990, the Washington Post on May 21, 1990, and the Boston Globe on May 23, 1990.]

The Indonesian mass murder program was based in part on experiences gleaned by the CIA in the Philippines. “US military advisers of the Joint US Military Advisory Group (JUSMAG) and the CIA station in Manila designed and led the bloody suppression of the nationalist Hukbong Mapagpalaya ng Bayan,” notes Roland G. Simbulan (Covert Operations and the CIA’s Hidden History in the Philippines).

The history of the United States and assassination, post-World War II, and particularly from the 1960s on, has been a sorry tale of botched public attempts (as of Castro), and a bloodbath dealt by U.S. proxy death squads, and if we can believe the Watson story, by deep cover U.S. assassins themselves. In 1976, in the wake of the many revelations about U.S. government crimes, including assassinations, President Gerald Ford issued a presidential directive (EO 11905) banning assassinations, a directive whose basic premises lie in shreds after ten years of Bush/Obama rule.

It would be remiss not to note in this context the blood bath that is U.S. history on the subject, not to bring up Phoenix, and all the rest of it. Recent revelations in the Iraq logs Wikileaks cache of documents suggests that the U.S. helped form torture squads, and perhaps death squads in Iraq. In any case, they certainly turned thousands of prisoners over to Iraqi forces they knew from hundreds of observations were torturing prisoners, often to death. This deliberate war crime, a direct violation of the Convention Against Torture treaty, was conducted under both the Bush and Obama administrations. But where in our society is the outrage? The society cannot seems to pick itself up out of the muck of triviality and standard party politics and cable TV scandal-mongering.

So forgive me if I don’t jump on the bandwagon to talk about Bush and his approval of waterboarding claims. Is he smug? Of course he’s smug, because Americans have been ignoring news about torture and assassinations on behalf of the ruling elite for decades now. I don’t know what it will take to turn such a historical situation around. Looking at the young and those vulnerable to such confusions as massive societal hypocrisy can allow, one can understand why some have turned even to radical Islam. But I can’t recommend it. I’d like to see the young take up the banner that was once Percy Shelley’s: free love, hatred of tyrannies, including — if not especially — the tyranny of one’s own state, and equality of all sexes, peoples, religious practice (including atheism), and add to it the wisdom of a century’s struggle for economic justice and against the exploiters of mankind.

But for now, all forward-seeking and progressive individuals should be backing the CCR/ACLU lawsuit, because if the U.S. gets its way, tomorrow it may not be the unsavory Awlaki, it may be you or me. And anyone who was forced to study history a semester or two knows that to be true.

Originally published on Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

(Image: Jared Rodriguez / t r u t h o u t; Adapted: Steve Wampler, CIA)

The government of Sudan has been miffed that it cannot get off of the U.S. list of states that sponsor terrorism. It could be because of the history of arbitrary arrests, killings and torture by the administration of Sudan President Omar Al Bashir, as documented in a recent report by Amnesty International. Or it could be because the Sudanese government is widely reported to back the Jangaweed militia attacks against citizens of Darfur, a campaign that has killed over 300,000 people and displaced approximately three million more. Or perhaps it is Sudan’s political support (and possibly military aid) to Hamas, foe of the U.S., the Israelis and the Palestinian Authority? In any case, the Obama administration has not seen fit to take Sudan off their list of bad guy countries.

So what is one to make of Jeff Stein’s report today at his Spy Talk blog at the Washington Post that the CIA has been training and equipping Sudan’s notorious National Intelligence and Security Service (NISS)?

“The U.S. government is training the Sudanese intelligence services and conducting bilateral operations with them — all in the name of the long war,” said a former intelligence officer who served in Sudan….

Another knowledgeable former U.S. intelligence official said the CIA-NISS partnership began even earlier, in the Clinton administration, and called it “incredibly valuable.”

While Erik Prince and his Blackwater Worldwide company is being fined for ignoring sanctions against Sudan and trying to “secure lucrative defense business in Southern Sudan,” the central government in Khartoum is having its security forces — one the most brutal in the Arab world — trained by the CIA.

According to Stein, U.S. officials maintain the operations are limited to counterterrorism. But one wonders how the NISS separates out such training from its general operations of domestic oppression. Earlier this year, NISS arrested six doctors, members of the Doctors Strike Committee, and tortured at least two, before releasing them after being held without charges for almost a month. As recently as June 27, NISS agents were reported to be roaming “hospitals in the Sudanese capital, Khartoum, ensuring that the doctors had returned to work.”

According to a report by Amnesty International, referenced by Stein in his article, NISS seems to have it in for doctors.

Ahmed Ali Mohamed Osman, a doctor also known as Ahmed Sardop, was arrested by the NISS on March 20, 2009 in Khartoum after criticizing rapes in the Darfur region and the government’s decision to expel humanitarian organizations from Sudan….

“They leaned me over a chair and held me by my arms and feet while others hit me on the back, legs and arms with something similar to an electrical cable,” he told Amnesty International. “They kicked me in the testicles repeatedly while they talked about the report on rape in Darfur.”

Ahmed Sardop filed a complaint with the police and was examined by a doctor who confirmed his allegations of torture. A few days later, he started receiving telephone death threats: “We will soon find you and we will kill you.” He now lives in exile.

But it isn’t only doctors, as NISS has targeted journalists, human rights activists, and students. The agents of the NISS operate in an atmosphere of near-impunity, as they “have immunity for all the violations they commit, under the 2010 National Security Act.”

Anyone who believes the NISS agents trained by the CIA limit their indelicate actions to “take-downs” of “terrorists” in Sudan knows very little about the omnipresent operations of security forces such as NISS, or the Mukhabarat in Egypt and Jordan, in this part of the world. This kind of training and involvement with some of the world’s more notorious secret police is the real face of U.S. foreign policy, more so than the aid programs that other portions of the government may provide in various countries. (It’s worth noting here, too, that the Palestinian Authority has received training for its security forces from the CIA.) Whatever aid is provided, the U.S. ensures the rule of governments with domestic terror regimes. Along with U.S. support for the forceable suppression of Palestinians in Israel, the West Bank and Gaza, and its campaign of wide-spread assassination throughout the region, this is the actual cause for hatred and attacks against the United States.

Apropos of the U.S. policy of widespread assassinations, today the ACLU and Center for Constitutional Rights have filed a lawsuit “challenging the government’s asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone.”

The groups charge that targeting individuals for execution who are suspected of terrorism but have not been convicted or even charged – without oversight, judicial process or disclosed standards for placement on kill lists – also poses the risk that the government will erroneously target the wrong people. In recent years, the U.S. government has detained many men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable.

A major change in U.S. policy must involve a significant change in the world-view of the U.S. populace, and a wholesale transformation of its political representatives, who remain meekly subservient to whatever military or intelligence policy that the White House demands, no matter how seemingly contradictory or self-defeating, or how costly to those in other countries who suffer under the police rule of their respective states.

For more information on the ACLU/CCR joint lawsuit, visit visit: www.aclu.org/targetedkillings and ccrjustice.org/targetedkillings.

Originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Of course, it’s almost taboo among the most serious peace and justice advocates to cite positive precedents from Jefferson, because he was a slave owner. But Jefferson’s views on the structure of a government don’t actually become less admirable (or more) when we remember the horrors he inflicted on the people at Monticello.

On the other hand, protesting someone like John Yoo (a march and rally are planned) is almost verboten among the comfortable liberals in Charlottesville, because of a Jeffersonian view of free speech as absolutist as the ACLU’s defense of campaign bribery. “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it,” quoth Jefferson.

Yet this admirable line of thought came from the same enlightenment that gave us this one: “Man will never be free until the last king is strangled with the entrails of the last priest.” In fact, the author of the Declaration of Independence, that lengthy list of crimes committed by King George, would not have approved of the College of William and Mary inviting the King to lecture on law. Jefferson and his fellow revolutionaries would have sought to kill or imprison such a lecturer. Translated into an age of nonviolence, they would have PROTESTED him.

John Yoo’s book “Crisis and Command” discusses Jefferson at length and devotes a chapter to his presidency. Yoo finds much to lament in Jefferson’s opposition to expanded presidential power, and much to praise in Jefferson’s expansions and abuses. I would reverse Yoo’s attitudes, praising what he laments and denouncing what he praises. But I don’t argue with his basic outline of the facts of the matter. I argue with the further expansions Yoo assisted in during his employment at the Justice Department, expansions that went far beyond those of Jefferson and did so in violation of a body of laws and treaties that did not exist in Jefferson’s day.

Jefferson thought a president should only veto a bill if he believed it to be unconstitutional. Today presidents routinely veto bills they simply disagree with. Or they alter bills with signing statements or with memos drafted by people like John Yoo. Or they simply violate the law. While Jefferson did not casually veto or alter laws with signing statements or memos, he did choose to simply not enforce laws based on his interpretation of their unconstitutionality. He claimed equal power with the Supreme Court in making such interpretation, something presidents since him — including Bush — have not tended to assert.

Jefferson favored the frequent use of impeachment, but not purely to protect the legislative branch, rather to advance the interests of a political party led by a president. Jefferson refused to comply with a court subpoena. He launched military operations without Congress, including covertly. In some cases he took unconstitutional actions while Congress was not in session, a situation that does actually provide him with an excuse that presidents don’t have today. In other cases, Jefferson simply acted outside the constitution, claiming to represent the will of the nation. The action Yoo seems to admire most for its brazen lawlessness is Jefferson’s purchase of Louisiana. But Yoo also seems to recognize the immense impact Jefferson had in developing a two-party system and the notion of a president possessing a national policy mandate.

Yet Jefferson was no Dick Cheney. Claiming to act, and plausibly acting, on behalf of majority opinion (or majority wealthy white male opinion) is — at least in retrospect — a dangerous precedent for an official who was supposed to execute the will of Congress. But the Bush-Cheney White House claimed the power to act without even a pretense of acting on behalf of the nation’s people. They were acting simply on behalf of Bush and Cheney. Jefferson worked to limit or avoid a standing military.

He acquired territory by purchasing it. Yoo praises Jefferson for purchasing Louisiana because it was an act of presidential assertiveness. And Yoo blames President James Madison for allowing Congress to lead him into a disastrous invasion of Canada, because Madison was following Congress, just as the Constitution he’d played a central role in writing required him to do. What Yoo misses is that negotiations tend to work and wars tend to be catastrophes no matter who makes the decisions. In comparison with Bush and Cheney, Jefferson was an opponent of the greatest evil there is: war. The Congressional Research Service just released a list of hundreds of overt U.S. military actions. Most of them have been launched by presidents. Most of them have been murderous and criminal catastrophes.

Yoo wrote memos that were treated as secret laws by a president. His memos authorized aggressive war and torture, which have been banned by international treaty and domestic laws since Jefferson’s day. Jefferson honored treaties. Yoo does not. Jefferson made exceptions to his adherence to laws. Yoo proclaims presidential liberty to openly ignore all laws. Yoo has famously gone so far as to argue that a president can crush testicles, massacre villages, or nuke cities. Nuclear weapons and most other weapons of war did not, of course, exist when Jefferson went after pirates without congressional authorization. The level of destruction in war was as small then as the body of law restricting it. Yoo lives in an age of far more evil wars, yet allows no limits on presidential war making. A president could nuke city after city until none remained, according to John Yoo’s theories, which I find it very hard to imagine Jefferson accepting or even hypocritically acting upon.

When pressed, Yoo recognizes the power of Congress to stop a president through defunding or impeachment. But Yoo has never, to my knowledge, opposed Bush’s unconstitutional spending of funds for uses other than those for which they were appropriated. And crimes and abuses must be crimes and abuses even prior to an impeachment and conviction. The partisan system developed during Jefferson’s presidential election makes presidential impeachments very unlikely. In fact, they are only possible when the Congress is controlled by the other party and that other party has not become complicit in the president’s crimes or abuses. The same Justice Department that Yoo worked for argued that a president can violate a law until the Supreme Court says otherwise, even though the Supreme Court cannot possibly rule in a timely manner on every law passed by Congress, and even though the Supreme Court is also corrupted by the party system.

While Jefferson advanced the shift of power from Congress to the White House, not to mention that he owned slaves and held every power over them that the United States military holds over prisoners in Bagram, there is only one thing that it is clear to me Jefferson would have done upon learning that John Yoo had been invited to speak at the University of Virginia. Jefferson would have demanded the resignation of the university president.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

I guess I may as well get out front of things here. I’m about to fly to Switzerland to lead a panel on how to change pro-capital punishment attitudes in a country at the Fourth Congress Against the Death Penalty, being sponsored by the United Nations in Geneva. And judging from the stories I’ve been reading about the Transportation Security Administration, or at least its Philadelphia International Airport operation, and the Philadelphia Police who backstop the TSA here, I’m afraid I’m liable to be hauled away as a suspected terrorist before I can get on my flight.

Why? Because I will be carrying copies of one of my books, which has the title Killing Time (It’s an investigation into the death penalty case of Philadelphia journalist Mumia Abu-Jamal, and was published in 2003 by Common Courage Press), and more importantly, because I just got a haircut.

Ask the TSA: Terrorist or just a diligent student?

A haircut, you may well ask? Well you see, we just learned that the TSA last fall handcuffed, arrested and held for five hours young Nick George, a 21-year-old Pomona College student on his way back to campus in California, because they found 200 Arab/English language flashcards on his person, and despite his protestation that he is a Middle Eastern Studies major, they decided that he must be a terrorist.

The reason they stopped him in the first place, though, according to Philadelphia Police, who were called in to take him into detention, is that the TSA and police were suspicious that George’s hair was shorter than it appeared in the photo on his Pennsylvania driver’s license. “That,” as Polict Lt. Louis Liberati told the Inquirer, is “an indication sometimes that someone may have gone through a radicalization.”

Damn. Just last week, I decided that my shaggy grey locks and Santa-like beard were becoming too unruly, so I got out the old electric hair-clipper and gave myself a very short buzzcut. It hasn’t changed my politics, but I sure look radically different–and I must say that my hair and beard are shorter than they appear on either my driver’s license or my passport.

Now, if the bright bulbs on the TSA at Philly’s airport security checkpoint decide that my haircut means I look “radicalized” and need closer inspection, and if they then decide to check through my carry-on luggage, they will inevitably stumble upon the copies of my second book, which I’m bring to Geneva to sell to interested participants at the Congress. As soon as they see the title, “Killing Time,” I figure they’ll freak. And if they read the subtitle, which says, “An investigation into the death row case of Mumia Abu-Jamal,” they will see that name and immediately flash “Arab! Arab! Arab!” although of course Mumia, aka Wesley Cook, is an African American native of Philadelphia.

That won’t help me, though, if the TSA cuffs me and turns me over to the tender mercies of Philly’s Finest, because Mumia Abu-Jamal is public enemy number one for the police union, the Fraternal Order of Police, whose members are dedicated to ensuring this man’s execution. They will not be kindly disposed to a writer whose book argues that Abu-Jamal’s trial was a kangaroo court sham rife with racism, prosecutorial misconduct and perjured testimony, that his appeals were subverted by blatant judicial prejudice, and that he may not even have been guilty at all of the crime of killing a white police officer.

Of course, it could get worse for me. Early last month, another local student flying home from the holidays to college, 22-year-old Rebecca Solomon, had a Philadelphia Airport TSA worker, “as a joke,” slip a plastic bag of some unidentified white powder into her carry-on bag, which he was inspecting after pulling her, allegedly at random, from the security line for a special inspection. “Where did you get it?” he asked her, causing the young woman to totally freak out. At that point, after letting her sweat and telling her things would be all right if she just answered “honestly,” the TSA goon reportedly smiled and said, “just kidding.”

Holy crap! Bad enough that someone in that kind of position of authority would think of that as a joke, but what if it hadn’t been? What if it had been coke, and he’d decided to claim he actually found something that he had really planted in the bag himself? How easy it would be in this mad, terror-crazed America, to get a jury to send someone like Solomon up for 10 years on a faked drug charge (the Philly Police were caught doing just this on a wide scale in a 1990s scandal prosecuted by the US Attorney’s Office)? Or, had the bag contained some explosive powder, how easy to send her packing to Guantanamo on a faked terrorism charge?

Luckily, the jerk who pulled that last stunt was fired by the TSA, but not, apparently, the guy who cuffed a young Middle Eastern Studies scholar and kept him from making his flight.

And then there’s Nadine Peligrino, a 57-year-old Baton-Rouge businesswoman and Philadelphia native, who was at the Philly airport preparing to fly home with her husband from a visit to family and friends. Back in July 2006, she was, for some unknown reason, selected for special attention by the alert agents of the TSA. As they started picking through her bag, the fastidious woman, who used to teach public speaking and semantics at Penn State and Trenton College, asked that the the TSA inspectors put on new surgical gloves.

The over-enthusiastic TSA inspectors were at the time pawing through her make-up, sniffing at her lipstick and fingering her undergarments (ahead of the game there apparently, they were already looking for explosive underpants!), and she didn’t want any unwanted germs. She claims the agents got irritated at her, especially when she asked them to put her things back in the bag the way they found them.

They didn’t–tossing everything together in a pile. When she stormed out of the private room where the screening had been conducted, the agents claim she hit them with her purse. She was charged with assault, was arrested by Philly police, and spent 17 hours in the can. Her case was recently tossed by a Philadelphia court because even though her attorneys had requested the security tapes of the incident from the TSA, the TSA destroyed them.

The judge, Municipal Judge Thomas Gehret, didn’t take kindly to the TSA lawyer’s explanation that they allowed the routine destruction of the recording after 30 days “because most of the incident took place outside of the camera’s view” and because the city of Philadelphia “couldn’t afford” the cost of storing such records. As the judge said, “With all the stuff that is happening, I would think you’d want to keep it – you could keep that forever.”

He scoffed at the TSA’s lame expense excuse, noting correctly that such digital records can fit on one DVD.

So there you have it. Cut your hair in Philadelphia and to the alert agents of the TSA and the equally alert Philadelphia Police you are a potentially radicalized terrorist. (Geez, and I already went through that garbage back in the ‘60s, when my long hair used to routinely get me harassed by police. So I guess it’s “long hair and beard = Commie” and “short hair and beard = Jihadi”). Carry language flash cards, or perhaps a book with an incindiary title, and you’re a potential terrorist. Get the wrong TSA agent, and you may even end up having some terribly incriminating substance planted in your bag. And try to prove misbehavior or worse by the TSA and they’ll casually destroy the evidence.

Ahead of this flight, I have memorized the number of the Philadelphia ACLU.

Wish me luck!

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

In the hope of making the list more readily accessible — and searchable — than it is through a poorly photocopied Pentagon document, I reproduce it as a separate web page here, with commentary on some the prisoners I have been able to identify. This is very much a work-in-progress, of course, as the state of knowledge regarding Bagram is akin to that regarding Guantánamo back in 2005, before the prisoner lists and 8,000 pages of documents were released that allowed me to research and write my book The Guantánamo Files, and to begin a new career as a full-time journalist on Guantánamo and related issues.

In an article accompanying this post, “Dark Revelations in the Bagram Prisoner List,” I examined what the list — which contains only the prisoners’ names, and not their nationalities or the date and place of their capture — revealed about the small number of foreign prisoners rendered to Bagram from other countries, three of whom are currently waiting to see if the Court of Appeals will overturn the right to habeas corpus that was granted to them by Judge John D. Bates last March, and raised questions about the whereabouts of other known “ghost prisoners” who do not appear to have been included on the list.

In an article to follow, I’ll examine how the list reveals not only that around 3,000 prisoners have been held at Bagram in the last six years, but also how the majority of the prisoners listed were seized in 2008 and 2009 — and I’ll examine what this means with regard to the US administration’s detention policies and the Geneva Conventions, which were discarded by George W. Bush and have clearly not been reintroduced by Barack Obama.

Although I believe that I have had some success tracking down the stories of some of the 100 or so prisoners on the list who have been held at Bagram for between three and seven years, I have found few clues as to the identities of the majority of those listed, who, as mentioned above, were seized in the last two years. Most reports — by the US military or the media — of raids or skirmishes that led to the capture of those held have not furnished the names of those seized, and on the rare occasion that names have been provided it has tended to be because they are regarded as significant figures.

I have no idea whether the allegations against these men are true, but, more importantly, I have not failed to notice that the majority of the prisoners (often men identified by only one name) are clearly not significant figures at all, and my fear — which, I have no doubt, will be confirmed when more information emerges — is that many of them will be revealed to be victims of the same chaotic approach to the capture of prisoners that has done so much to lose the battle for the “hearts and minds” of the people of Afghanistan and Iraq for the last eight years, and which, with regard to the 218 prisoners seized in Afghanistan between 2001 and 2003 and sent to Guantánamo, I chronicled in The Guantánamo Files.

One sign that this is indeed the case was reported on NPR last August, when NPR’s Pentagon correspondent Tom Bowman explained how Maj. Gen. Doug Stone had recently been sent to Afghanistan by Gen. David Petraeus, the overall commander of Afghanistan and Iraq, because he “liked the way Stone revamped the detention centers in Iraq, how he changed them for the better.” Bowman explained that Stone “went to Afghanistan with a team, interviewed detainees, visited detention facilities,” and produced a 700-page report, in which he estimated that “as many as 400 of the 600 held at Bagram can be released,” explaining that “many of these men were swept up in raids” and “have little connection to the insurgency.”

Bowman added that Maj. Gen. Stone “wants to focus on rehabilitation, just like he did in Iraq where he ran the detention system there. He had 21,000 detainees. But he found that most of these Iraqi detainees — as many as two-thirds — were not radicals, but mostly illiterate and jobless young people. Some were innocents and others worked for the insurgency because they just needed the money. And Stone worried that detaining them was only making matters worse, actually turning them into radicals.”

As Stone explained to NPR at the time:

Now you’ve got a bunch of moderates who really shouldn’t be in there in the first place. And I can hold them forever, but eventually they’re going to say, “Why are you holding me? What’s the fairness in this?” And eventually they’ll say something about America that we don’t want to hear. They’re going to say, “Wait a minute, you’re not here to better the population, you’re here to conquer us and you’re taking me hostage.”

If you have any further information about any of the men on this list, please feel free to email me, and I will incorporate the information into the list.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Photo/Wikimedia

From the ACLU:

A federal court found on Wednesday that, based on the facts presented to it so far, the Library of Congress likely violated Col. Morris Davis’s rights when it fired him from his job at the Library’s Congressional Research Service (CRS) because of opinion pieces he wrote about the Guantánamo military commissions system that ran in the Wall Street Journal and the Washington Post in November. [For background, please see here and here.]

The court denied Davis’s request for an immediate injunction to compel the Library to reinstate him, however, finding that Col. Davis had not yet demonstrated the irreparable injury necessary for an injunction because Davis might be able to recover monetary damage in the future.

“While we’re disappointed that the court missed a chance to immediately right this wrong, the court’s ruling makes clear that the facts presented to it show that the Library likely violated Col. Davis’s rights when it fired him for exercising free speech. We look forward to the day when Col. Davis’s rights are restored,” said Aden Fine, staff attorney with the American Civil Liberties Union First Amendment Working Group. “Col. Davis didn’t give up his right to express himself about the military commissions when he went to work for the Library of Congress.”

The ACLU filed a lawsuit on behalf of Davis against Daniel Mulhollan, Davis’s supervisor at CRS, and James Billington, the Librarian of Congress, charging that CRS violated Davis’s right to free speech and due process when it removed him from his position as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS for speaking as a private citizen about matters of public concern having nothing to do with his responsibilities at CRS. Both pieces were written by Davis in his personal capacity, made clear that he was writing as a private individual and former chief prosecutor of the military commissions and made no mention of CRS. Davis wrote the pieces on his home computer during non-work hours.

The ACLU had asked Judge Reggie B. Walton of the U.S. District Court for the District of Columbia to issue an immediate injunction to compel the Library to reinstate Davis to his former job and block it from hiring a permanent replacement for that position in the interim. While Judge Walton declined to issue the injunction, his ruling made clear that Col. Davis has a right and grounds to make a claim that the Library violated his rights.

“While I’m disappointed that the Court didn’t immediately take the necessary steps to right this wrong and stop the Library from firing me, I am hopeful the ultimate outcome of this case will recognize my right to free expression,” said Davis. “I will continue the fight to get my job at CRS back, although it’s a fight I never should have had to undertake.”

Judge Walton’s decision is available online here.

The Obama administration announced Sunday it will subject the citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.

Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.

In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers — not just from the 14 countries — will also face random and threat-based enhanced screening.

But the agency denied that the new regulations amount to profiling. “TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background,” spokeswoman Kristin Lee said.

“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”

But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”

“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration’s stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.

Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.

According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”

“We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion,” said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.

“Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats.”

The organization said the government’s plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the “shoe bomber,” Richard Reid, who was a British citizen, as were four of the London subway bombers.

“Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn’t reflect this reality will only divert resources by having government agents target innocent people,” said German. “Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism.”

Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks — that’s profiling.”

He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”

“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”

MPAC’s government liaison, Alejandro Beutel, said, “The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin,” said “Call it whatever you want, but this is religious and ethnic profiling at its worst.”

A number of legal experts were also critical of the new measures.

Georgetown University law professor David Cole said, “The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don’t fit the profile.”

Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.

In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I’m going to argue that this case illustrates the danger and the foolishness of profiling…I think it’s not only problematic from a civil rights’ standpoint, but frankly, I think it winds up not being terribly effective.”

He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”

A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.

Photo/Wikimedia

So much for the First Amendment.

Morris Davis, the retired Air Force Colonel who served as the Chief Prosecutor of the Military Commissions at Guantánamo from September 2005 until his resignation in October 2007, has just lost his job at the Congressional Research Service (a branch of the Library of Congress) for writing, in his personal capacity, an op-ed for the Wall Street Journal, in which he drew on his wealth of experience of the Commissions to criticize the Obama administration for its decision to prosecute some Guantánamo prisoners in federal courts, and others in Military Commissions.

Davis also wrote a letter to the Washington Post, in which he criticized former Attorney General Michael Mukasey for scaremongering about the administration’s decision to try Guantánamo prisoners in federal courts, and he was admonished for that too.

In a letter dated Nov. 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on Dec. 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.