Monthly Archives: April 2009

Prosecute Bush & Impeach Obama! This article from “Der Spiegel” (German for “The Mirror”) does not reflect very well on our government. When will this Country get the message that the real criminals are those running the country. We must stand up to the continuing disregard for basic human rights—the brutal oppression of many for the dubious benefit of….who exactly?

http://www.salon.com/news/feature/2009/04/28/poland_prison/print.html


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New evidence of a secret torture prison

It has long been clear that the CIA used the Szymany military airbase in Poland for extraordinary renditions. Now there is new evidence of a secret torture prison nearby.By John Goetz and Britta Sandberg

Editor’s note: This article originally appeared in Der Spiegel.


Apr. 28, 2009 |

Only a smattering of clouds dotted the sky over Szymany on March 7, 2003, and visibility was good. A light breeze blew from the southeast as a plane approached the small military airfield in northeastern Poland, and the temperature outside was 2 degrees Celsius (36 degrees Fahrenheit). At around 4 p.m., the Gulfstream N379P — known among investigators as the “torture taxi” — touched down on the landing strip.

 

 

On board was the most important prisoner the U.S. had been able to produce in the war on terror: Khalid Sheikh Mohammed, the architect of the 9/11 attacks on New York and Washington, also known as “the brains” behind al-Qaida. This was the man who had presented Osama bin Laden with plans to attack the U.S. with commercial jets. He personally selected the pilots and supervised preparations for the attacks. Eighteen months later, on March 1, 2003, Sheikh Mohammed was captured in Rawalpindi, Pakistan by U.S. Special Forces and brought to Afghanistan two days later. Now the CIA was flying him to a remote area in Poland’s Masuria region. The prisoner slept during the flight from Kabul to Szymany, for the first time in days, as he later recounted:

 

 

“My eyes were covered with a cloth tied around my head. A cloth bag was then pulled over my head … I fell asleep … I therefore don’t know how long the journey lasted.”

 

 

Jerry M., age 56 at the time, probably sat at the controls of the plane chartered by the CIA. The trained airplane and helicopter pilot had been hired by Aero Contractors, a company that transferred prisoners around the world for U.S. intelligence agencies. According to documents from the European aviation safety agency Eurocontrol, Jerry M. had taken off from Kabul at 8:51 a.m. that morning. Only hours after landing in Poland, at 7:16 p.m., he took off again, headed for Washington.

 

 

A large number of Polish and American intelligence operatives have since gone on record that the CIA maintained a prison in northeastern Poland. Independent of these sources, Polish government officials from the Justice and Defense Ministry have also reported that the Americans had a secret base near Szymany airport. And so began on March 7, 2003, one of the darkest chapters of recent American — and European — history.

 

 

Obama under pressure

 

 

It was apparently here, just under an hour’s drive from Szymany airport, that Sheikh Mohammed was tortured exactly 183 times with waterboarding — an interrogation technique that simulates the sensation of drowning — in March 2003 alone. That averages out to eight times a day. And all of this happened right here in Europe.

 

 

Over six years later, these acts of torture are putting President Obama under intense pressure. On the one hand, he released four memos in which his predecessor George W. Bush had legalized such interrogation methods. On the other hand, he decided not to prosecute the torturers. And he initially neglected to launch investigations into these “special interrogation methods.”

 

 

It is the decision that has earned Obama the harshest criticism during the first 100 days of his presidency. Democrats from the Senate and the House of Representatives announced last week that they would form a truth commission, essentially putting them at odds with their own president. Obama quickly realized that he had apparently underestimated the volatile nature of the issue. So he had Attorney General Eric Holder announce that no one stood above the law. Holder promised that an investigation would be conducted to find out who in the White House and the Justice Department had declared these methods legal.

 

 

What the CIA did back then to prisoners in the Polish military airbase of Stare Kiejkuty, north of Szymany, had been authorized by the president. According to witnesses, Stare Kiejkuty housed a secret CIA prison for “high value detainees” — for the most prominent prisoners of the war on terror.

 

 

There is now no doubt that the Gulfstream N379P landed at least five times at Szymany between February and July 2003. Flight routes were manipulated and falsified for this purpose and, with the knowledge of the Polish government, the European aviation safety agency Eurocontrol was deliberately deceived.

 

 

The public prosecutor’s office in Warsaw has the statement of a witness who described how people wearing handcuffs and blindfolds were led from the aircraft at Szymany. He said that this happened far away from the control tower. According to the witness, it was always the same individuals and the same civilian vehicles that stood waiting on the landing field.

 

 

If we are to believe the statements of Sheikh Mohammed, a large number of those present at the small airfield wore ski masks. This is what he told a delegation from the International Committee of the Red Cross that questioned him in the U.S. military prison at Guantánamo, Cuba, in late 2006:

 

 

“On arrival the transfer from the airport to the next place of detention took about one hour. I was transported sitting on the floor of a vehicle. I could see at one point that there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet-X people.”

 

 

Just under an hour’s drive corresponds roughly to the distance from Szymany to the Stare Kiejkuty military base, known as a training camp for Polish intelligence agents. The route there passes for two kilometers through a fenced-off military zone, past dense pine forests, then heads northeast for 20 minutes, and finally leads over an unpaved road alongside a lake. The entrance to the base is at the end of this road.

 

 

“I was never threatened with death”

 

 

Sheikh Mohammed said that they cut the clothes from his body, photographed him naked and threw him in a 10-by-13-foot cell with wooden walls. That was when the hardest phase of the interrogating began, he claims. According to Sheikh Mohammed, one of his interrogators told him that they had received the green light from Washington to give him a “hard time”:

 

 

“They never used the word ‘torture’ and never referred to ‘physical pressure,’ only to ‘a hard time.’ I was never threatened with death; in fact I was told that they would not allow me to die, but that I would be brought to the ‘verge of death and back again.'”

 

 

He says he was questioned roughly eight hours a day. He spent the first month naked and standing, with his hands chained to the ceiling of the cell, even at night. They led them into another room for questioning, he says. That’s where the bed stood that he says he was strapped to for waterboarding. The mastermind behind the 9/11 attacks told members of the Red Cross that he eventually realized where he was being held:

 

 

“I think the country was Poland. I think this because on one occasion a water bottle was brought to me without the label removed. It had an e-mail address ending in ‘.pl’. The central-heating system was an old-style one that I would expect only to see in countries of the former communist system.”

 

 

Thereafter, the al-Qaida operative described how he was strapped to a special bed and submitted to waterboarding:

 

 

“Cold water from a bottle that had been kept in the fridge was then poured onto the cloth by one of the guards so that I could not breathe. This obviously could only be done for one or two minutes at a time. The cloth was then removed and the bed put into a vertical position. The whole process was then repeated during about an hour. Injuries to my ankles and wrists also occurred during the waterboarding as I struggled in the panic of not being able to breathe.”

 

 

Part 2: Investigations across Europe

 

 

For more than a year now, Warsaw public prosecutor Robert Majewski has been investigating former Polish Prime Minister Leszek Miller’s government on allegations of abuse of office. At issue is whether sovereignty over Polish territory was relinquished, and whether former Polish President Aleksander Kwasniewski and his left-leaning Social Democratic government gave the CIA free reign over sections of the Stare Kiejkuty military base for the agency’s extraterritorial torture interrogations.

 

 

Majewski has questioned a large number of witnesses who worked in the former government, and this year his team even plans to fly to Guantánamo. “No European country is so sincerely and vigorously investigating former members of the government as is currently the case in Poland,” says Wolfgang Kaleck from the European Center for Constitutional and Human Rights in Berlin, which supports the investigations.

 

 

The public prosecutor’s office has also launched a probe to determine whether the Polish intelligence agency made 20 of its agents available to the CIA, as was recently reported by the conservative Polish daily newspaper Rzeczpospolita. A former CIA official confirmed this information. There was reportedly a document issued by the intelligence agency that mentioned both the 20 Polish agents and the transfer of the military base to the Americans. Two members of a parliamentary investigative committee in Warsaw had an opportunity to view this document in late 2005, but it has since disappeared.

 

 

The missing piece of evidence

 

 

Journalist Mariusz Kowalewski at Rzeczpospolita and two colleagues have been searching for months now for proof of the existence of a secret CIA base in Poland. The journalists have discovered flight record books from Szymany that had been declared lost, and based on refueling receipts and currency exchange rates, they have reconstructed flights and routes, and spoken with informants. Over the past few weeks, their newspaper and the television network TVP Info have revealed new details on an almost daily basis.

 

 

Kowalewski has collected a wide range of documents on his white Apple laptop. He is convinced, though, that he only knows “a fraction of what actually happened.” He is certain that there was a CIA base in the Masuria region, where high-ranking al-Qaida prisoners were brought. All that is missing is the final piece of evidence. There are rumors circulating that one of the most important interrogators of Sheikh Mohammed, an American named Deuce Martinez — the man who didn’t torture him, but rather had the task of gently coaxing information out of him — was in Poland at the time. That is the proof that’s still missing.

 

 

Similar conclusions were reached by the second investigative report on CIA kidnappings in Europe, which was submitted two years ago by the special investigator of the Council of Europe, Dick Marty. According to Marty’s report, members of the former Polish military intelligence and counterintelligence agency, WSI, were given positions with the border police, customs and airport administration to safeguard the activities of the CIA. “The latest revelations in Poland fully corroborate my evidence, which is based on testimony by insiders and documents that have been leaked to me,” says the investigator today. Now, under the “dynamic force of the truth” that Obama has unleashed, Marty says that Europeans must finally reveal “which governments tolerated and supported the illegal practices of the CIA.”

 

 

All that remains is the question of who in Poland at the time approved the collaboration with the CIA and gave the Americans unencumbered use of sections of Stare Kiejkuty.

 

 

“The order to give the CIA everything they needed came from the very top, from the president,” a member of the Polish military intelligence agency told the Marty team in 2007. Kwasniewski denies this. He says that there was close intelligence corporation with the U.S., but no prisons on Polish soil. When asked to comment on the reports, former Prime Minister Miller said: “All of this is just another opportunity for me to say that I have nothing to say.”

 

 

It’s very possible that the debate on torture and responsibility which is currently being conducted in the U.S. will soon also reach Europe. After all, Germany granted the U.S. flyover rights and dropped its bid to extradite 13 CIA operatives in the case of Khalid el-Masri, a German citizen who claims he was abducted by the Americans. The Italian intelligence agency allegedly assisted the CIA with the kidnapping in Milan of the Islamic cleric Abu Omar. Britain’s intelligence agency, MI6, reportedly delivered information directly to CIA agents who were conducting interrogations in Morocco. And there are also reports of a secret prison in Romania. Investigations have been launched into these allegations in nearly all of these countries.

 

 

Jerry M., the pilot who flew Sheikh Mohammed from Kabul to Szymany in March, 2003, now lives in Birmingham, Ala., in a brick house with white shutters and box trees planted in front of the door. Two stone lions guard the path that leads to the entrance. For two years, Jerry M. only had a post box address, like everyone else who flew CIA prisoners around the world: P.O. Box 22 99 43, code name Jerry Allen Bostick.

 

 

It appears the 62-year-old would rather deny all knowledge of this period in his life. When asked by a reporter over the phone if he had ever been to Poland, he said, “I have no idea what you’re talking about. Really no idea.” When he was asked if he had ever worked for a company named Aero Contractors, the line suddenly went dead. Jerry M. had hung up.

 

 

Translated from the German by Paul Cohen

 

 

— By John Goetz and Britta Sandberg

Letter to the ABA I posted Four Years Ago. I have devoted my life to the study and understanding of complex society and complex political and legal structures. I believe that the light of the Constitution was one of the greatest formulations for justice in the history of the world, but it seems foreign to the American Judiciary and American Judges, both Federal and State. This is now my life’s crusade: to restore the honor and integrity of the American Judicial Process.

Subject: * * * A Former Lawclerk Who No Longer Trusts Judges * * *
From:
Date: Mon, 11 Apr 2005 18:25:44 -0700
To: “www.jail4judges.org”

 

J.A.I.L. News Journal
______________________________________________________
Los Angeles, California                                            April 11, 2005

______________________________________________________
 
 A Former Lawclerk Who
 No Longer Trusts Judges
by Charles E. Lincoln, charles.e.lincoln@worldnet.att.net
 
Mr. Robert P. Grey, Jr.

 

President of the American Bar Association

 

Dear Mr. Grey:

        I have served as a lawclerk for two of the finest District and Circuit judges, both liberal and conservative, in the entire Federal Judiciary.  I studied law under half a dozen other current federal judges at the University of Chicago Law School, where I received my J.D. in 1992. 

        A balanced and even-handed appreciation, acquired only after hours if not days of hard work and exhaustive consideration, of the legal and factual issues in every case was always the cornerstone of law and judicial decisionmaking as I learned it, both from great conservatives like Michael W. McConnell and liberals like Diane Wood at Law School, or Stephen Reinhardt and Kenneth L. Ryskamp in whose chambers I worked on the opposite ends of both the political spectrum and the geographic boundaries of this country.

        I do not believe that the judicial ideals I learned working for these men, the judges whom I served, or at law school, are reflected or embodied in the larger body of current American (state or federal) judiciaries AT ALL.   Judges have learned to use their power in manners which I can only describe as consistently

 

oppressivearbitrary, and capricious, and violative of the Constitution. 

        Civil rights actions, and every other procedure by which the people might challenge their government or the wealthy, have been struck down and redefined and limited almost out of existence.  Rather than using the Courts to protect the poor, Judges maximize the advantage of the rich, strike down the rights of the pro se or indigent parties.  The quality of mercy is most definitely strained in this country, and everyone knows it.

        It can be said that few if any “modern” judges keep the balance nice and even.  That is my experience, the experience of those around me, and in fact I know of only a few widely scattered exceptions all of whom I can count with one hand.  The most common characterization of judges behind their backs, even among seasoned lawyers, is not as scholars or workaholics but as “eight hundred pound gorillas.”  The judges with whom I studied and worked were only scholars and workaholics, but the simians have come to the bench in greatest numbers and at all levels.

        And for this reason, the even well-balanced scales, that ancient ideal and symbol of the judiciary seems to be everywhere dead. 

        I am sending you two recent essays I have “published” on-line, but I would like to add that, based on my experience, I have devoted my entire strength, my entire educational background, and what remains of  my own judge-shattered career to fighting judicial immunity, restricting judicial discretion to that which the law allows, and in general to reimpose the lofty rights enshrined in the Constitution of the United States on a judiciary which seems to have all but forgotten that all men are created equal.

        In short, I think you are wrong—the American judiciary as a whole has not earned our respect.  There is a certain parallel—albeit not exact—between what I have written below and what Texas’ Junior Senator said on the Senate Floor the other day—the American judicial system has degenerated to the point that no one can trust it, and it must be reformed—or else the constitution itself will crumble and dissolve in a cesspool of the people’s disappointed tears and bloodied lives. 

        The judiciary and its judges are the least visible and most poorly understood branch and actors of the government, but it can no longer be said that they have just powers derived from the consent of the governed.

        Charles E. Lincoln, Lago Vista, Texas.

************************************************************

http://victimsoflaw.net/ABAonjudges3.htm#__Judges_Deserve_Our_Respect,_Not_Our_Sc

Response to “Judges Deserve Our Respect, Not Our Scorn”

In Response to: “Judges Deserve Our Respect, Not Our Scorn”

— By: Charles E. Lincoln


Citizen’s Response to the ABA Statement

Dear Mr. Grey:

  ©2005

        I have written elsewhere on this website (A Comparison of “An Act for the Relief of the Parents of Theresa Marie Schiavo”with existing law under 28 U.S.C. §1343 and 42 U.S.C. §1983), that from at least one perspective it is Congress who cast the ultimate vote of no confidence in the judiciary when it re-enacted pre-existing laws to guarantee that Terri Schiavo’s case could be reviewed in the Federal Courts.  If Congress had believed that the U.S. Courts were consistently (or even “ever, recently”) willing to follow and apply the laws already enacted by Congress and entered on the books, such as 42 U.S.C. Section 1983, it is hard to understand why Congress would have needed or bothered to enact a special bill for Terry Schiavo that did not expand on the rights already conferred by that statute. 

        It was once my privilege to work for a man whom I consider to be one of the finest U.S. District Judges in the state of Florida, actually in all the United States, the Honorable Kenneth L. Ryskamp of Palm Beach, a man of utterly unimpeachable integrity, intelligence, and honor. One of Judge Ryskamp’s mottos was “if judges don’t follow the law, then who will?”

        Now, however, it seems that one can rely on both State and Federal Judges for little else other than their complete willingness to disregard the law, to twist it to purposes inverse from original framer’s or legislative intent (if the law involved is constitutional or statutory) or unrecognizably out of the original context and factual framework (if the law involved is based on judicial precedent).

        I have recently worked very hard to clarify and limit the proper understandings of two doctrines, Rooker-Feldman and Younger v. Harris which support or even advocate a national judicial policy of “jurisdictional helplessness” which has been used to defeat federal civil rights litigation.  Cf., Susan Bandes, “Evaluating Rooker-Feldman’s Jurisdictional Status,  74 Notre Dame Law Review, 1186 n. 58 (1998-1999)(Symposium: Rooker-Feldman Doctrine: worth only the powder to blow it up?).

        The simple but unspoken truth is that the judicial over-extension and over-application of both Rooker-Feldman and Younger v. Harris, far beyond what those extremely sound precedents originally stood for in the context of the facts and circumstances of the cases they decided, are part and parcel of a nationwide movement over the past two decades to cut-back on the civil rights progress which the Courts had made against arbitrarily and capriciously oppressive, discriminatory, and biased local customs, policies, and practices during the 1950s-1970s.  

        It is politically impossible for the anti-civil rights crowd to repeal such monumental pieces of civil rights legislation as 42 U.S.C. Section 1983, but it has so far not been at all politically impossible to whittle away civil rights piece-by-piece judicial rewriting of these laws to the point where they no longer effectively enforce or preclude ANYTHING.  

        So, when the terribly sympathetic case of Terri Schiavo made it to the top of the news, Congress had no choice but to recognize the reality that activist anti-civil rights judges, many in the name of “opposing judicial activism”, had so curtailed the civil rights laws of these United States, so obliterated the enforcement of the law as an expression of the “consent of the governed”—acting through their democratically elected representatives in Congress, that Terri Schiavo’s ONLY access to the Federal Courts to clarify the extent of her SUBSTANTIVE due process rights was for Congress to RE-ENACT the Ku Klux Klan Act of 1871 (now 42 U.S.C. Section 1983) specifically in her name and for her benefit only. 

        It is patently obvious (as I described in my article) that Congress specifically intended to eliminate the barriers set up by both the judge-made Rooker-Feldman and Younger v. Harris jurisdictional and “abstention” doctrines, in enacting the Schiavo bill—-while Congress shied away from expanding Terri’s (or anyone else’s) substantive due process rights to life, liberty, or property.

        Thus, Congress showed, for all the world to see, that Congress knows what the U.S. Courts have done to the U.S. Civil Rights law, and Congress, albeit to no result or end, wanted to give Terri Schiavo, or her parents, a one-time access to the U.S. Judiciary, acknowledging thereby what everyone knows: namely that, historically, the US Courts were the “last best hope” for those whose life, liberty, and property was threatened or endangered.

Sincerely,

Charles E. Lincoln

~~~~~~~~~~~~~~~~~~~

Charles E. Lincoln  lives in Lago Vista, Texas.  After his B.A. at Tulane in New Orleans (1980), he received a Ph.D. from Harvard University in 1990 and a J.D. from the University of Chicago in 1992.  He clerked for U.S. District Court Kenneth L. Ryskamp in Palm Beach, Florida, in 1992-1993 and before that was a judicial extern for U.S. Circuit Judge Stephen Reinhardt, 9th Circuit Court of Appeals, Los Angeles, in 1988-9

 

 

http://victimsoflaw.net/SchiavoPrecedent2.htm

A Comparison of “An Act for the Relief of the Parents of

Theresa Marie Schiavo”with existing law under

28 U.S.C. §1343 and 42 U.S.C. §1983

 — By: Charles E. Lincoln — 4/5/05

 

Substantive And Procedural Due Process:

A Comparison of 
“An Act for the Relief of the Parents of Theresa Marie Schiavo”
with existing law under 28 U.S.C. §1343 and 42 U.S.C. §1983 
 ©2005

By: Charles E. Lincoln

INTRODUCTION

Much of the discussion in the media over the past week concerns the impact of Congress’ private bill regarding Terri Schiavo on Federal-State relations. Congress had a choice between granting Terri special procedural due process rights (which is what they did) and granting her substantive due process rights (which they expressly chose NOT to do—it says so in the statute). See Terri Schiavo bill.

Procedural due process (federal review of state cases) is what the Federal Courts (without express Supreme Court sanction or approval) have been curtailing through my favorite paired boogeymen “Rooker-Feldman” jurisdiction (Rooker v. Fidelity Trust) and Younger v. Harris abstention—against people with causes like Charlie’s which do raise well-established substantive rights (e.g. Freedom of Speech, the right to the care and education of one’s own children).

The whole problem with Schiavo is that there ARE no well-defined substantive due process rights that apply to an unconscious person’s right to live (or be kept alive) anywhere in the bill of rights, the Fourteenth Amendment, or any of the Supreme Court’s cases. It’s a recent problem of technological origin and the courts haven’t caught up.

Both the Florida and 11th Circuit courts agreed only that there is no precedent in John Ashcroft’s (now very old) “Cruzan” or any of the relevant cases that establish or identify any affirmative rights which have been violated in Terri’s case.

Meanwhile, Congress wanted to give the impression of doing something while in fact doing nothing, so Congress granted Schiavo’s parents an extra procedural “bite at the apple”—by re-enacting statutes that already existed but which the Courts have essentially defined out of existence.

So the next question is: What does it mean that Congress knows that the existing Civil Rights statutes enacted by Congress are not being implemented or enforced by the Courts, and that it takes a special bill to get full, already statutorily authorized review of even a high profile case where no known substantive rights can be identified? Does it mean that Congress tacitly approves the lower Court treatment of Civil Rights’ statutes? Or does it mean that Congress was disturbed by the notion that the Courts are not even giving procedural due process a chance, and that Congressional displeasure with the status quo of civil rights jurisprudence is reflected in the enactment of the special bill in the Schiavo case?

If the latter is true, how can litigants use the case to support a roll-back in the draconian anti-civil rights “shotgun blast” mis-application of “Rooker-Feldman” and “Younger v. Harris?”

 

THE STATE OF THE LAW BEFORE THE SCHIAVO BILL

Either Congress has completely forgotten the civil rights laws already on the books (and chose to re-enact statutes with uncanny similarities to those already in existence), or else Congress recognizes that the Federal Courts have all but stopped enforcing the civil rights laws as a matter of “anti-civil rights judicial activism” under the rubrics of Rooker-Feldman or Younger v. Harris and accordingly enacted a “one time private exemption” to provide another procedural “bite at the apple” for a politically popular cause.

There is simply no getting around the fact that the Schiavo bill merely restates the basic enabling acts for civil rights litigation under the Constitution, and adds nothing to those laws. Too many people are blaming the state and federal court judges for doing nothing. But the truth is that Terri Schiavo and her parents have spent more time in and received more judicial attention from both state and federal courts than 99.99% of all death row inmates. If there had been, as so many supporters of Terri Schiavo and her parents maintain, any misconduct or conduct in excess of or in variance from the Florida or Federal Constitutions on the part of Florida Circuit Judge Greer, 42 U.S.C. §1983 as amended in 1996 already provided both a federal forum an express remedy IDENTICAL if not stronger than the Schiavo “private bill.”

There has been no denial of PROCEDURAL DUE PROCESS in the Schiavo case—as Judge Frank Easterbrook of the 7th Circuit would undoubtedly say, “Terri Schiavo and her parents have received ‘oodles of process’” (cf.  Szabo v. Digby, 1987). The problem for Terri and her parents is a massive default of either judicially or congressionally determined SUBSTANTIVE DUE PROCESS rights on the side of keeping Terri Schiavo alive—and on this point both the Federal and State Courts have quite simply concurred from the Middle District of Florida in Tampa through the 11th Circuit en banc.

One way to think of this is that the generally anti-Plaintiff, anti-civil litigation Republican Congress granted a one-time exemption to Terri Schiavo’s parents to file a frivolous lawsuit (lacking in any possible allegation of violation of any express substantively guaranteed rights) without granting to either Terri or her parents one single substantive right which would make that lawsuit less frivolous. In short, Congress’ posturing was nothing but a cruel and meaningless hoax.

Section 1 of the Schiavo bill (signed into law on March 21, 2005) invested the U.S. District Court for the Middle District of Florida with

“jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Shiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States…..”.

Title 28 U.S.C. §1343(a)(3)-(4) already provided that:

“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:  to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”

Except and unless Congress forgot about the existence of 28 U.S.C. §1343(a)(3)-(4), what did Congress add by enacting Section 1 of the Schiavo bill? Could it be that Congress knew that the courts were systematically refusing to exercise its pre-existing jurisdiction to hear civil rights cases authorized by 28 U.S.C. §1343(a)? So, was Congress making a one-time exception to Rooker-Feldman and Younger v. Harris abstention doctrines, or has the judicial refusal to enforce the civil rights laws simply become so ingrained and routine that Congress completely forgot about the express language of pre-existing statutes?

Section 2 of the Schiavo bill makes it clear that only the parents of Terri Schiavo have standing under this bill and specifically authorizes suit against “identical parties” to the state court litigation, which normally would present a problem under Rooker-Feldman (if the state court cases were final), and Section 2 also specifically exempts Schiavo litigants from any requirement of exhaustion of state court remedies and liberates the federal court from any requirement to give res judicata or any other issue preclusive effect to any previous state court decisions and specifically provides that “The District Court shall entertain and determine the suit without any delay or abstention in favor of State Court proceedings….” 

Obviously, Congress was aware of both judge-made Younger v. Harris and Rooker-Feldman constraints on civil rights litigation in enacting the Schiavo bill, but was  unaware of Zinermon v. Burch, 494 U.S. 108, 124-5, 110 S.Ct. 975, 982-3, 108 L.Ed.2d 100 (1990) and the courts’ statements in the Zinermon opinion that exhaustion of state court remedies is not required to institute suit under 42 U.S.C. §1983, (it should be noted, however that, the ACLU cited Zinermon on the definition of due process in its amicus brief in Schiavo to the U.S. Supreme Court).

Section 3 of the Schiavo bill provides that:

“After a determination on the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States…..”

Again, one must wonder how this differs from the pre-existing language of 42 U.S.C. §1983, “Civil Action for Deprivation of rights” and whether Congress has forgotten the status of existing US law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable….

As always, 42 U.S.C. §1983 must be read together with its companion “Proceedings in vindication of civil rights” 42 U.S.C. §1988(b):

In any action or proceeding to enforce a provision….of this title…..the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

It is reasonable to infer that in enacting the Schiavo bill, Congress may have intended an act of meaningless legal, purely symbolic, import.  It is equally plausible that Congress completely understood that the substantive due process question of whether Terri Schiavo had any affirmative right to stay alive against the will of her husband and legal guardian was simply a political potato “much too hot to handle” but that the buck could be passed to the Courts by re-authorizing “procedural due process” by giving another “notice opportunity” for Federal review of state court litigation despite the Federal courts recent history of “anti-review” procedural jurisprudence.

If Congress had chosen to reaffirm the civil rights enabling statutes which are “on the books” by making affirmative reference to 28 U.S.C. §1343(a) and 42 U.S.C. §1983, Congress could have reinvigorated civil rights litigation in federal courts against the stain of Rooker-Feldman and Younger v. Harris abstention and refusal jurisprudence. Alternatively, Congress could have taken the more meaningful step (from the standpoint of Terri Schiavo and her parents, anyhow) of enacting an affirmative substantive right to nourishment to persons who are unconscious and have never executed a living will, “DNR”, or “no extreme measures” directive.   Congress rejected these latter, “substantive due process” alternatives, however, in sections 5, 6, 7, and 8 of the Schiavo Act.

So the question remains—what does it mean that Congress enacted a “special bill” for Terri Schiavo which gave her parents another “procedural bite at the apple” but no substantive due process rights to life or liberty and expressly did not change the general law regarding substantive rights, assisted suicides, or patient self-determination?

It may mean that Congress was tacitly admitting that the Federal Courts have gone so far in their 1980s-1990s “anti-civil rights activism” of abjuring the originally intended mandate of the civil rights acts under Rooker-Feldman and Younger v. Harris that there is, in effect, no viable outlet under existing law to obtain Federal Courts’ review over state-court actions, except to re-enact the very laws which are already on the books.

~~~~~~~~~~~~~~~~~~~

Charles E. Lincoln  lives in Lago Vista, Texas.  After his B.A. at Tulane in New Orleans (1980), he received a Ph.D. from Harvard University in 1990 and a J.D. from the University of Chicago in 1992.  He clerked for U.S. District Court Kenneth L. Ryskamp in Palm Beach, Florida, in 1992-1993 and before that was a judicial extern for U.S. Circuit Judge Stephen Reinhardt, 9th Circuit Court of Appeals, Los Angeles, in 1988-9.”


 

On behalf of National J.A.I.L., we express our deepest gratitude to Charles Lincoln for sending J.A.I.L. a copy of this provocative and meaningful testimony which carries with it the utmost degree of respect and credibility. May this lead to an awakening of the People to end this scourge of judicial corruption, by passing J.A.I.L. throughout this country as soon as possible. This is indeed an Evil that is no longer sufferable.  -Barbie


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The Nightmare Goes on-and-on: Obama carries on “W’s” Third-Term, Subversion of the Constitution is Treason!

Obama and habeas corpus — then and now

Glenn Greenwald

It was once the case under the Bush administration that the U.S. would abduct people from around the world, accuse them of being Terrorists, ship them to Guantanamo, and then keep them there for as long as we wanted without offering them any real due process to contest the accusations against them.  That due-process-denying framework was legalized by the Military Commissions Act of 2006.  Many Democrats — including Barack Obama — claimed they were vehemently opposed to this denial of due process for detainees, and on June 12, 2008, the U.S. Supreme Court, in the case ofBoumediene v. Bush, ruled that the denial of habeas corpus rights to Guantanamo detainees was unconstitutional and that all Guantanamo detainees have the right to a full hearing in which they can contest the accusations against them.

In the wake of the Boumediene ruling, the U.S. Government wanted to preserve the power to abduct people from around the world and bring them to American prisons without having to provide them any due process.  So, instead of bringing them to our Guantanamo prison camp (where, the U.S. Supreme Court ruled, they were entitled to habeas hearings), the Bush administration would instead simply send them to our prison camp in Bagram, Afghanistan, and then argue that because they were flown to Bagram rather than Guantanamo, they had no rights of any kind and Boudemiene didn’t apply to them.  The Bush DOJ treated the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game — fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process.  Put another way, you just close Guantanamo, move it to Afghanistan, and — presto — all constitutional obligations disappear.

Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue — the Obama DOJ argued, as The New York Times‘s Charlie Savage put it, “that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.”  Remember:  these are not prisoners captured in Afghanistan on a battlefield.   Many of them have nothing to do with Afghanistan and werecaptured far, far away from that country — abducted from their homes and workplaces — and then flown to Bagram to be imprisoned.   Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges.  That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind — as long as they are kept in Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo.  Notably, the district judge who so ruled — John Bates — is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge.  In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind (click image to enlarge):

. . .

As Judge Bates noted, the prisoners shipped to Bagram actually have even fewer rights than the Guantanamo detainees did prior to Boudemiene, because at least the latter were given a sham Pentagon review (the CSRT tribunal), whereas the U.S. Government — under both Bush and Obama — maintain that Bagram prisoners have no rights of any kind.

In the wake of Judge Bates’ ruling that foreign detainees shipped to Bagram at least have the right to a hearing to determine their guilt, what is the Obama DOJ doing?  This:

The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight. . . .

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on thedefense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.

In late February, I interviewed the ACLU’s Jonathan Hafetz, counsel to several of the Bagram detainees, who said:  

What happened was, these people were picked up in this global war on terror, were brought to Guantanamo in 2004, and once Guantanamo became subject to habeas corpus review, the administration basically, the Bush administration stopped bringing people there, and started bringing them to Bagram, and Bagram’s population has shot up, and it’s become in some sense the new Guantanamo. . . . And so what you have is you have a situation where the Bush administration, was free to, and the Obama administration will continue to be free to, create a prison outside the law.

The Obama DOJ is now squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions.  Leave aside for the moment the issue of whether you believe that the U.S. Government should have the right to abduct people anywhere in the world, ship them to faraway prisons and hold them there indefinitely without charges or any rights at all.  The Bush DOJ — and now the Obama DOJ — maintain the President does and should have that right, and that’s an issue that has been extensively debated.  It was, after all, one of the centerpieces of the Bush regime of radicalism, lawlessness and extremism.

Consider, instead, what Barack Obama — before he became President — repeatedly claimed to believe about these issues.  The Supreme Court’s Boudemiene ruling was issued at the height of the presidential campaign, and while John McCain condemned it as “one of the worst decisions in the history of this country,” here is what Obama said about it in a statement he issued on the day of the ruling:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

My, what a ringing and inspiring defense of habeas corpus that was from candidate Barack Obama.  So moving and eloquent and passionate.  And that George W. Bush sure was an awful tyrant for trying to “create a legal black hole at Guantanamo” — apparently, all Good People devoted to a restoration of the rule of law and the Constitution know that the place where the U.S. should “create a legal black hole” for abducted detainees is Bagram, not Guantanamo.  What a fundamental difference that is.

Even worse, here is what Obama said on the floor of the Senate in September, 2006, when he argued in favor of an amendment to the Military Commissions Act that would have restored habeas corpus rights to Guantanamo detainees.  I defy anyone to read this and reconcile what he said then to what he is doing now:

The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.

I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:

“Sometimes, we just didn’t get the right folks.”

We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria–through a rendition agreement–tortured, only to find out later it was all a case of mistaken identity and poor information. . . .

This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .

But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance–even one chance–to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

In Sunday’s New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe “actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay.”

This is not just unhelpful in our fight against terror, it is unnecessary. We don’t need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.

Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:

“To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ….. The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury.”

The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future–our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the “great writ” — a writ that has been in place in the Anglo-American legal system for over 700 years.

Mr. President, this should not be a difficult vote. I hope we pass this amendment because I think it is the only way to make sure this underlying bill preserves all the great traditions of our legal system and our way of life.

I yield the floor.

So that Barack Obama — the one trying to convince Democrats to make him their nominee and then their President — said that abducting people and imprisoning them without charges was (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Americans generally; and (f) a violent betrayal of core, centuries-old Western principles of justice.  But today’s Barack Obama, safely ensconced in the White House, fights tooth and nail to preserve his power to do exactly that.

I’m not searching for ways to criticize Obama.  I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law.  But these actions — these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney — are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don’t want to see it, or that you’re so convinced of his intrinsic Goodness that you’ll just believe that even when it seems like he’s doing bad things, he must really be doing them for the Good.  If there was any unanimous progressive consensus over the last eight years, it was that the President does not have the power to kidnap people, ship them far away, and then imprison them indefinitely in a cage without due process.  Has that progressive consensus changed as of January 20, 2009?  I think we’re going to find out.

* * * * *

On a related note, the Columbia Journalism Review has a very interesting article tracing the origins of the “Obama/state secrets” controversy of the last week, documenting how it became a scandal, and examining which media outlets have covered it and — more importantly — have been ignoring it.

 

UPDATE:  One of the things I always found so striking about debates over Bush/Cheney executive power abuses was that Bush followers who admittedly had no substantive arguments to justify those actions would nonetheless still find reasons to defend their admired leader:  Bush knows more than we do and probably has secret reasons for doing it.  Bush is a good person and well-motivated and there’s no reason to think he’s doing bad or abusive things.  Rights for Terrorists pale in comparsion to other more important issues.  Republican critics of Bush are hysterics and paranoids who are only criticizing him because they want to get on TV and sell books.

As of January 20, 2009, one no longer finds those claims at National ReviewWeekly Standard, right-wing blogs and the like, but instead, finds them commonly expressed in Obama-defending venues and some liberal blogs.  Scan the comment section to John Cole’s post criticizing Obama’s Bagram position to see how frequently this mindset is now expressed to justify whatever Obama does — these are just a representative sample of actual quotes:  

  • it seems much more plausible to me that Greenwald simply doesn’t have access to the same facts the current DOJ does;
  • None of us have seen the actual case files and can make informed judgments about whether revealing the relevant information in particular cases would actually pose a threat to national security. That applies equally to Greenwald, and he must know that; it makes his rant silly and intellectually dishonest;
  • But Obama picks his battles. You can be upset that he hasn’t chosen to make this one of them (I am too), but I’m not sure that it’s necessarily on the same plane as the economy, health care, energy independence, etc.;
  • look at Obama and tell us if you see a man who is interested in some kind of imperial all-powerful, unchecked presidency. what in his background, his demeanor or his other actions make you think he’s that kind of guy ? what does your gut tell you about him? he’s a power-hungry authoritarian who is seeking to grab as much power as he can ? bullshit.
  • I guess Glenzilla will end up on the cover of Newsweek and have an appearance on Morning Joe soon since he has now said effectively that President Obama is worse than Bush but he is just about to over play his normally spot on hand with his rhetoric;
  • Let’s also keep in mind here that one of Greenwald’s jobs is to get people to read his blog. It’s not like he’s doing this for Salon pro-bono.

It goes on and on like that (with a fair number of comments who disagree).  My response to all of it ishere.  And Cole commenter Mary adds some important thoughts here.

Most amazing is that the specific comment which John cut and pasted into his post (without approving of it) actually claims that a reading of the Obama DOJ’s brief (here – .pdf) somehow doesn’t constitute support for Bush’s position even though (a) the Obama DOJ filed a 2-sentence brief in February saying they support the Bush/Cheney position in full; (b) the principal point of the new Brief is to argue that the District Judge was wrong to reject the Bush/Cheney position that Bagram detainees have no rights of any kind; and (c) the Brief repeatedly asserts pure, defining Addington/Yoo propositions about the unchallengeable power of the President to make decisions about detainees. 

To recap:  Obama files a brief saying he agrees in full with the Bush/Cheney position.  He’s arguing that the President has the power to abduct, transport and imprison people in Bagram indefinitely with no charges of any kind.  He’s telling courts that they have no authority to “second-guess” his decisions when it comes to war powers.  But this is all totally different than what Bush did, and anyone who says otherwise is a reckless, ill-motivated hysteric who just wants to sell books and get on TV.

— Glenn Greenwald