A federal judge in San Francisco dismissed a lawsuit Wednesday that sought to prove President Bush acted illegally in 2001 when he ordered the wiretapping of phone calls between Americans and suspected foreign terrorists without court approval.

Chief U.S. District Judge Vaughn Walker said an Islamic charity on the government’s terrorist list could not use a crucial classified document - an accidentally released memo indicating the charity and its lawyers had been wiretapped - to show that it had been harmed by the surveillance program and thus had the right to challenge it in court. But the organization’s lawyer said he wasn’t giving up.

“We will now be marshalling all the nonclassified evidence we have to make our case,” attorney Jon Eisenberg said. “We believe we can make a solid showing.”
Walker gave lawyers for the now-defunct charity, Al-Haramain Islamic Foundation, 30 days to file a new lawsuit relying on publicly available evidence to show it could reasonably believe it had been wiretapped.

Other suits challenging Bush’s wiretapping program have all been dismissed on the grounds that plaintiffs who suspected their calls had been intercepted had no way to prove it.

About 40 lawsuits against telecommunications companies that allegedly shared phone and e-mail networks and customers’ records with federal agents are also pending before Walker. The Senate, however, is scheduled to vote next week on legislation that would require dismissal of those suits.

The government inadvertently sent Al-Haramain a classified document in 2004 indicating that the organization and two of its lawyers had been wiretapped. The charity promptly returned the document at the government’s request but has relied on its contents to pursue its lawsuit.

Civil liberties groups had hoped that Al-Haramain, the only plaintiff in the nation with actual evidence of wiretapping, would be able to obtain a ruling on whether the taps violated constitutional standards and a 1978 federal law requiring a court warrant for any such surveillance.

In Wednesday’s ruling, Walker said Congress, in the 1978 law, had established “the exclusive means for foreign intelligence activities” - an apparent rejection of Bush administration arguments that the president has the constitutional authority to order wiretapping on his own.

But Walker said Al-Haramain faces an obstacle that may be insurmountable: The wiretap document remains a government secret and can’t be used to prove that the onetime charity was affected by the surveillance program.

He noted that a federal appeals court ruled in November that Al-Haramain’s lawyers also could not rely on their memories of the document to establish that the group had been wiretapped.

At the appeals court’s August 2007 hearing, Eisenberg acknowledged that he couldn’t establish the right to sue without evidence in the wiretap document. But he said Wednesday that the government has made disclosures in the last year, including a declaration last month that Al-Haramain was affiliated with al Qaeda, that might help him show the group had been under surveillance.

E-mail Bob Egelko at begelko@sfchronicle.com.

See also Terrorist profile: The Justice Department considers letting the FBI investigate Americans without any evidence of wrongdoing. A4

No surprise that the U.S. Court of Appeals turned down Yassin Aref and Mohammed Hossain, the two Albany Muslims convicted of supporting terrorism as the result of an FBI set-up.

I thought the arguments in their favor were compelling, but I could hardly imagine an appeals court overturning a jury verdict in something so sensitive as Muslim terrorism, even if the terrorism was imaginary.

For you students of the War on Terror, the decision means it’s OK for the FBI to lure law-abiding citizens (Hossain is a citizen, Aref a refugee) into doing something illegal that they had no idea of doing on their own and that they probably understood only imperfectly and then to arrest them for it. That’s the long and short of this case.

“We put them to the test,” as the U.S. attorney in charge of prosecuting the case put it. And if you’re concerned that a person with such a view of fair play should become a federal judge, all I can say is, I share your concern, but alas, Sen. Chuck Schumer, who is in a position to veto Suddaby’s appointment to the bench by the Bush administration, does not.

In an interview at the Daily Gazette not long ago he said he would let Suddaby pass.
For legal beagles, of greatest interest, perhaps, is the Court of Appeals’ agreement that it was OK for the trial court to keep classified information away from Aref and his lawyer, since that information was not used as evidence against him in the trial.

It was in all likelihood transcripts of phone calls that were wiretapped by the National Security Agency in defiance of federal law, though we’ll never know for sure. All we know is that Judge Thomas McAvoy, at the trial, assured the jurors the government had “good and valid reasons” for going after Aref and the jurors were not to concern themselves with what those reasons were.

Whether anyone else would have considered the reasons good and valid, again we don’t know. But when we’re dealing with an administration that thought it had good and valid reasons to invade Iraq, I guess we’re entitled to a little skepticism.

Late last month, a federal Court of Appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller, and other senior government officials, could not be heard. After government lawyers invoked the “state secrets” privilege, the court concluded that hearing Arar’s claims would interfere with sensitive matters of foreign policy and national security.

Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York’s John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to U.S. authorities by the Canadian Government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of Al Qaeda.

When the government invokes the “state secrets” privilege, Federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, it dismissed a suit over the National Security Agency’s warrantless wiretapping program and the government’s use of detention, interrogation and “extraordinary rendition.”

In a rare move, a federal judge in Chicago recently disagreed with the government’s use of the privilege in a case involving the Department of Homeland Security’s terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list.

In one of the Arar case’s more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the U.S., Arar had no constitutional due process rights. It was the U.S. Government that denied Arar admission to America.

Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada’s role in his rendition and awarded him a $10 million settlement.

The U.S. Government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the U.S. had mishandled the case. “We do not think that this case was handled as it should have been,” Ms. Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”

The court also rejected Arar’s claim that U.S. officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that U.S. officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority.

Arar’s lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Constitutional Rights (CCR), told us, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”

Maria LaHood, a senior CCR attorney, told us that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case.
She added, “Giving short shrift to the facts, the majority opinion grants impunity to U.S. officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The Defendants have again blocked Maher’s access to justice, this time with the Court’s seal of approval.”

Meanwhile, legislation to curb the government’s use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government’s use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania’s Arlen Specter, the senior Republican on the Judiciary Committee.

It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.

“It’s long past time for Congress to address the state secrets privilege. Congress needs to ensure — and the American people need to feel confident — that the courts are adjudicating the privilege properly and not just giving the Executive a free pass. No one in America should be above the law. That’s why this legislation is so critical,” Sen. Kennedy said.

But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall.

Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June 2007 on the report of the Department of Homeland Security Office of Inspector General on Arar’s removal.

Arar testified at the hearing - the first time he has appeared before any U.S. governmental body. His testimony was via video because he is still on the government’s “no-fly” watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not.

At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government’s treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the American government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants.

Earlier, Skinner’s testimony and a 50-page report found that U.S. immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria “would more likely than not result in his torture” and relied on “ambiguous” assurances from Syria that he would not be. Skinner also questioned U.S. officials’ minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture.

Barring the unlikely chance that the Supremes will agree to hear this case, the Bushies will see it as merely another notch in the belt of injustice it has so successfully tied around the neck of the lady with the scales. It will likely fall the next president to start undoing Dubya’s sterling legacy.

So the question is: Who do you think is more likely to take this issue on, starting with an official government apology — Obama or McCain?

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union today released thousands of pages of documents related to Navy investigations of civilians killed by Coalition Forces in Iraq, including the cousin of the Iraqi ambassador to the United States. Released today in response to a Freedom of Information Act (FOIA) request by the ACLU filed in June 2006, these records provide a vivid snapshot of the circumstances surrounding civilian deaths in Iraq.

“At every step of the way, the Bush administration and Defense Department have gone to unprecedented lengths to control and suppress information about the human cost of the wars in Iraq and Afghanistan,” said Nasrina Bargzie, an attorney with the ACLU National Security Project. “Our democracy depends on an informed public and that is why it is so important that the American people see these documents. These documents will help to fill the information void around the issue of civilian casualties in Iraq and will lead to a more complete understanding of the prosecution of the war.”

The ACLU obtained documents from eight Naval Criminal Investigative Service (NCIS) investigations. One of the files documents the investigation of the death of Mohammed al-Sumaidaie, a cousin of the Iraqi ambassador to the U.S, Samir al-Sumaidaie. In 2006, the ambassador accused Marines of “intentionally” killing his cousin and today’s records shed light on al-Sumaidaie’s NCIS investigation for the first time. Among the findings uncovered in this file are conflicting accounts of events, questions of credibility, possible command influence issues and cover-ups.

“As these files remind us, many charges of war crimes in Iraq have not seen the light of day,” said Michael Pheneger, a retired Army intelligence colonel who is also a board member of the ACLU. “There are many discoveries here that should bring pause to any American who cares about this country and hopes to restore the United States’ respected role in the world. It is time to bring the facts about this war into the sunlight and end practices that go against our laws and national values.”

Through its FOIA project, the ACLU has made public information on Defense Department policies designed to control information about the human costs of war. These practices include:

• Banning photographers on U.S. military bases from covering the arrival of caskets containing the remains of U.S. soldiers killed overseas;
• Paying Iraqi journalists to write positive accounts of the U.S. war effort;
• Inviting U.S. journalists to “embed” with military units but requiring them to submit their stories for pre-publication review;
• Erasing journalists’ footage of civilian deaths in Afghanistan; and
• Refusing to disclose statistics on civilian casualties.

Today’s documents are available online at: www.aclu.org/natsec/foia/NCIS_log.html

Attorneys involved in this project are Bargzie, Ben Wizner and Jameel Jaffer of the ACLU National Security Project. In a separate lawsuit, the ACLU sued for records concerning the abuse of prisoners held by U.S. forces in Iraq, Afghanistan, and Guantánamo Bay. To date, that request has resulted in the release of more than 100,000 pages, all of which are available online at: www.aclu.org/torturefoia

The Muslim Solidarity Committee is extremely disappointed with the 2nd Circuit’s ruling. We will continue to work for justice for Yassin Aref and Mohammed Hossain, whom we believe are innocent of the government’s fictional terrorist charges. And we will continue to support them and their families, as well as the Capital District’s Muslim community, all of whom have been greatly harmed by this miscarriage of justice in our community.

If you need any more information, please let me know. I’m a member of the MSC, and authorized to speak on the group’s behalf.

Thank you,
Jeanne Finley
finlandia@nycap.rr.com

John Pilger The Guardian 7/02/08

Two weeks ago, I presented a young Palestinian, Mohammed Omer, with the 2008 Martha Gellhorn Prize for Journalism. Awarded in memory of the great US war correspondent, the prize goes to journalists who expose establishment propaganda, or “official drivel”, as Gellhorn called it. Mohammed shares the prize of £5,000 with Dahr Jamail. At 24, he is the youngest winner. His citation reads: “Every day, he reports from a war zone, where he is also a prisoner. His homeland, Gaza, is surrounded, starved, attacked, forgotten. He is a profoundly humane witness to one of the great injustices of our time. He is the voice of the voiceless.” The eldest of eight, Mohammed has seen most of his siblings killed or wounded or maimed. An Israeli bulldozer crushed his home while the family were inside, seriously injuring his mother. And yet, says a former Dutch ambassador, Jan Wijenberg, “he is a moderating voice, urging Palestinian youth not to court hatred but seek peace with Israel”.

Getting Mohammed to London to receive his prize was a major diplomatic operation. Israel has perfidious control over Gaza’s borders, and only with a Dutch embassy escort was he allowed out. Last Thursday, on his return journey, he was met at the Allenby Bridge crossing (to Jordan) by a Dutch official, who waited outside the Israeli building, unaware Mohammed had been seized by Shin Bet, Israel’s infamous security organisation. Mohammed was told to turn off his mobile and remove the battery. He asked if he could call his embassy escort and was told forcefully he could not. A man stood over his luggage, picking through his documents. “Where’s the money?” he demanded. Mohammed produced some US dollars. “Where is the English pound you have?”

“I realised,” said Mohammed, “he was after the award stipend for the Martha Gellhorn prize. I told him I didn’t have it with me. ‘You are lying’, he said. I was now surrounded by eight Shin Bet officers, all armed. The man called Avi ordered me to take off my clothes. I had already been through an x-ray machine. I stripped down to my underwear and was told to take off everything. When I refused, Avi put his hand on his gun. I began to cry: ‘Why are you treating me this way? I am a human being.’ He said, ‘This is nothing compared with what you will see now.’ He took his gun out, pressing it to my head and with his full body weight pinning me on my side, he forcibly removed my underwear. He then made me do a concocted sort of dance. Another man, who was laughing, said, ‘Why are you bringing perfumes?’ I replied, ‘They are gifts for the people I love’. He said, ‘Oh, do you have love in your culture?’

“As they ridiculed me, they took delight most in mocking letters I had received from readers in England. I had now been without food and water and the toilet for 12 hours, and having been made to stand, my legs buckled. I vomited and passed out. All I remember is one of them gouging, scraping and clawing with his nails at the tender flesh beneath my eyes. He scooped my head and dug his fingers in near the auditory nerves between my head and eardrum. The pain became sharper as he dug in two fingers at a time. Another man had his combat boot on my neck, pressing into the hard floor. I lay there for over an hour. The room became a menagerie of pain, sound and terror.”

An ambulance was called and told to take Mohammed to a hospital, but only after he had signed a statement indemnifying the Israelis from his suffering in their custody. The Palestinian medic refused, courageously, and said he would contact the Dutch embassy escort. Alarmed, the Israelis let the ambulance go. The Israeli response has been the familiar line that Mohammed was “suspected” of smuggling and “lost his balance” during a “fair” interrogation, Reuters reported yesterday.

Israeli human rights groups have documented the routine torture of Palestinians by Shin Bet agents with “beatings, painful binding, back bending, body stretching and prolonged sleep deprivation”. Amnesty has long reported the widespread use of torture by Israel, whose victims emerge as mere shadows of their former selves. Some never return. Israel is high in an international league table for its murder of journalists, especially Palestinian journalists, who receive barely a fraction of the kind of coverage given to the BBC’s Alan Johnston.

The Dutch government says it is shocked by Mohammed Omer’s treatment. The former ambassador Jan Wijenberg said: “This is by no means an isolated incident, but part of a long-term strategy to demolish Palestinian social, economic and cultural life … I am aware of the possibility that Mohammed Omer might be murdered by Israeli snipers or bomb attack in the near future.”

While Mohammed was receiving his prize in London, the new Israeli ambassador to Britain, Ron Proser, was publicly complaining that many Britons no longer appreciated the uniqueness of Israel’s democracy. Perhaps they do now.

johnpilger.com

Sign a petition to end Israel’s restrictions on freedom of movement and the press.

By Mark Benjamin Salon 6/30/08

WASHINGTON — The former Air Force general and chairman of the Joint Chiefs of Staff, Richard Myers, helped quash dissent from across the U.S. military as the Bush administration first set up a brutal interrogation regime for terrorism suspects, according to newly public documents and testimony from an ongoing Senate probe. (more…)

If you, like most people who are desirous of seeing the President impeached, which in any event could lead to some kind of deal or pardon, have given up on that outcome, Mr. Bugliosi’s book is the perfect antidote for your frustration.

According to Democracy Now “In his career at the LA County District Attorney’s office, he successfully prosecuted 105 of 106 felony jury trials, including twenty-one murder convictions without a single loss.” Mr. Bugliosi brings that experience and a thorough knowledge of the law and couples it with evidence that the President lied that Iraq was an imminent threat to show how a murder charge could be brought by any county district attorney in the country that had a soldier who had been killed Iraq. Although the book has copious footnotes and annotations, it is enlivened by Mr. Bugliosi’s unbridled scorn for the President which manifests itself in fulminations of peppery adjectives. The arguments are easy to follow because he explains legal terms carefully, and shows you how he would conduct the trial depending on which choices the President made to defend himself.

All that is required now is for some District Attorney to take the initiative, and Mr. Bugliosi volunteers to help in any way he can.

by Leigh Donaldson the Portland Press Herald (Maine) 6/30/08

In late April, six peace activists stood victorious in front of Maine’s Penobscot County Superior Court.

A jury had acquitted them on criminal trespass charges for failing to obey a police request that they end their sit-in protest at the closing of U.S. Sen. Susan Collins’ office in the Margaret Chase Smith Federal Building.

It should be noted that six other protestors also had been arrested, but pleaded no contest, paid fines and were released.

These men, dubbed the “Bangor Six,” believed that the Constitution was being violated by the Bush administration’s involvement in Iraq and sought redress of their grievances as provided by the First Amendment.

According to several e-mails in response to a related article that appeared in the Bangor Daily News, actual trial witnesses stated that all of the defendants took the stand and expressed their opinions regarding their actions and the Iraq war in a calm, deliberate manner.

They were protesting President Bush’s proposal to increase U.S. combat troops in Iraq to support a military effort known as the “surge.”

Universally, they asserted that they had made numerous attempts to communicate directly with Sen. Collins, to no avail. Their consensus was that the Constitution prevailed over local ordinances.

The jury was instructed to set aside their feelings about the war, and was also allowed to consider whether or not the defendants believed they had “license and privilege” to consciously choose to break Maine law because they thought international law had been violated.

Unanimously, the jury decided in the protesters’ favor.

Surprisingly, this precedent-setting case remains below the national radar, even though it’s not the first time that Maine anti-war activists have stepped up to the plate.

According to Pax Christi Maine, a Catholic peace movement affiliate, “There have (to date) been 25 peace activists arrested at Sen. Collins’ Bangor office and 36 arrested at Sen. Olympia Snowe’s office since the beginning of the (Iraq) war.”

Local opposition to the “Bangor Six” and other war protesters remains alive and kicking in Maine, despite controversial statements made by Penobscot County District Attorney Christopher Almy, who expressed to the Bangor Daily News his belief that this verdict was an indicator of Mainers’ disgust toward the Iraq “debacle.”

Almy and others have since suggested that these types of cases might be handled differently in the future, perhaps within the federal court system.

Along with widespread praise, these men have had to withstand rigorous public scrutiny. They have been challenged as being draft dodgers with too much free time, typical liberal elites and so on.

Interestingly, at least two of the six are war veterans, including Dud Hendrick, a Naval Academy graduate and former Air Force officer who volunteered for two tours in Vietnam and who now teaches peace studies at the University of Maine at Orono, and Doug Rawlings, a veteran of combat in Vietnam and an active member of Veterans for Peace.

Other arrested advocates include a college professor, retired school-teacher, a college administrator, a farmer, a carpenter and a nationally known artist.

A prevailing complaint is that, in the eyes of some, these people simply broke the law and should be punished. In their opinion, doing something illegal to make a point doesn’t hold water. Trespassing on government property is illegal. Period.

Opponents to this view might suggest that government buildings belong to all Americans, and, as taxpaying citizens we have the right to express our convictions on these properties.

My mind takes me to those 12 selected citizens who arrived at this unanimous verdict. There is no way on Earth to pick 12 people who agree about anything. Consensus is the order of the day in the courtroom.

The reality is that in general, human beings don’t like the idea of being arrested for voicing their opinions. Nor do they appreciate being cordoned off to a “protest area” far removed from the officials who should hear their grievances.

Could this trial have been avoided? I think so. All these peaceful citizens were trying to do was express their concerns to elected representatives.

They were denied an opportunity to speak with them and then treated as criminals.

Elected officials, in any office, are accountable to the people who put them there. And, the actions of peaceful objectors do not make them any less American or patriotic.

Public servants from all states must be more responsive to their constituents. They should not ignore the voices of any one of us, especially if they disagree with our views.

Leigh Donaldson’s writing has appeared in publications such as International Poetry Review, Art Times, Art & Understanding, Shooting Star Review, American Legacy Magazine, the Progressive Media Project, American Songwriter, Portland Monthly Magazine, Maine History, Café Review, Maine Voices Project, Maine Food & Lifestyle Magazine, Wolf Moon Press Journal, Words & Images, Stolen Island Review, Goose River Anthology, animus, as well as in his weekly opinion column for the Portland Press Herald. He is the recipient of numerous writing awards including a National Press Foundation grant, an Abraham Woursell Fellowship from the University of Vienna (Austria) and a Martin Dibner Memorial Fellowship from the Maine Community Foundation. His book about the antebellum African-American press in the Northeast is due for publication in 2009. He can be contacted at:leighd@lycos.com