innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, June 30, 2006

Uncertainty at Guantanamo

This article ran in the N.Y. Times on Friday, June 30, 2006.

Ruling Leaves Uncertainty at Guantánamo

Officials may soon begin to look harder for an alternative site for the detainees held at Guantánamo Bay.

Published: June 30, 2006
GUANTÁNAMO BAY, Cuba, June 29 — As the Supreme Court prepared to rule on the Bush administration's plan to try terror suspects before special military tribunals here, the commander of Guantánamo's military detention center was asked what impact the court's decision might have on its operations.

"If they rule against the government, I don't see how that is going to affect us," the commander, Rear Adm. Harry B. Harris, said Tuesday evening as he sat in a conference room in his headquarters. "From my perspective, I think the direct impact will be negligible."

The Defense Department repeated that view on Thursday, asserting that the court's sweeping ruling against the tribunals did not undermine the government's argument that it can hold foreign suspects indefinitely and without charge, as "enemy combatants" in its declared war on terror.

Privately, though, some administration officials involved in detention policy — along with many critics of that policy — were skeptical that Guantánamo could or would go about its business as before. "It appears to be about as broad a holding as you could imagine," said one administration lawyer, who insisted on anonymity because he was not authorized to discuss the ruling. "It's very broad, it's very significant, and it's a slam."

For the moment, the effect of the court's ruling on the detention and interrogation operations at Guantánamo is likely to be as political as it is practical.

Construction crews went to work Thursday morning as usual at Camp Six, putting final touches on a hulking, $24 million concrete structure that is to be the permanent, medium-security facility for terror detainees.

President Bush and other officials have said repeatedly of late that they have yet to find a better place to incarcerate the dangerous men still held at Guantánamo, and there is no indication that the administration has seriously begun to widen its consideration of those possibilities.

But administration officials said Thursday that they would have no choice but to start thinking anew about the problem.

Over the last six weeks, the military custodians at Guantánamo have been rocked by desperate protests — the suicides of three detainees who hanged themselves from the steel-mesh walls of their small cells, the intentional drug overdoses of at least two other prisoners, and a riot against guards in a showcase camp for the most compliant detainees. Those events, in turn, set off new waves of criticism of the camp from foreign governments, legal associations and human rights groups.

Thursday, in rejecting the administration's elaborate plan to try Guantánamo detainees by military commission, as the tribunals are called, the court struck at one of the first ramparts the administration built to defend itself against criticism that Guantánamo was a "black hole" in which men declared to be enemies of the United States were stripped of rights guaranteed by the Constitution.

"It strengthens calls for solving 'the Guantánamo problem,' " the administration lawyer said.
"Not because it deals with the detention issue directly, but because it removes the argument that soon there would be more legal process there."

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Thursday, June 29, 2006

Bush Escalates Media Attack

This article ran in the Washington Post on Thursday, June 29, 2006.

Bush Seeks to Use Media Leaks to His Advantage

Attack on Newspapers Continues as Some Democrats Accuse White House of Trying to Divert Attention

By Charles Babington and Michael Abramowitz
Washington Post Staff Writers
Thursday, June 29, 2006; Page A11

President Bush rallied Republicans with another attack on the media last night, in remarks that highlighted efforts at the White House and on Capitol Hill to gain momentum from recent disclosures about classified programs to fight terrorism.

Senior administration officials say the president was outraged by articles in the New York Times and other newspapers about a surveillance program in which the U.S. government has tapped international banking records for information about terrorist financing. But his comments at a Republican fundraiser in a St. Louis suburb yesterday, combined with new moves by GOP congressional leaders, showed how both are working to fan public anger and reap gains from the controversy during a midterm election year in which polls show they are running against stiff headwinds.

Democrats, for their part, denounced Republicans for trying to divert attention from issues such as the Iraq war and high gasoline prices, and some terrorism experts said the White House is exaggerating the damage.

Republican House leaders introduced a resolution yesterday condemning leakers and calling on the media and others to safeguard classified programs. For the second time this week -- at an event on behalf of Sen. James M. Talent (R-Mo.) -- Bush attacked newspapers for disclosures he said make it harder for his administration to thwart terrorists.

"This program has been a vital tool in the war on terror," the president said, receiving a standing ovation. "There can be no excuse for anyone entrusted with vital intelligence to leak it and no excuse for any newspaper to print it."

Hours before Bush spoke, Democrats denounced what they saw as a White House-inspired campaign.

"This is all so people don't realize what else is going on," especially in Iraq, said Rep. Rahm Emanuel (Ill.), who is heading his party's efforts to regain control of the House in the November elections. "This is disingenuous of both the White House and House Republicans."

The White House dismissed such claims. "This is not press-bashing. This is a clear disagreement about a decision to reveal a classified program," White House counselor Dan Bartlett said in an e-mail exchange. "Are we supposed to just sit back and take it?"

Last week, the New York Times, Wall Street Journal and Los Angeles Times reported that the banking surveillance program used a new interpretation of the Treasury Department's administrative authority to bypass traditional banking privacy protections, sweeping up large numbers of international money transfers in a bid to identify terrorist funding operations. The Washington Post quickly matched the reports, which were posted on Web sites Thursday night.

There is growing debate about whether the disclosures aided terrorists or added to the government's burden. Victor Comras, a retired diplomat and consultant on terrorism financing, said he finds it "doubtful" that the disclosure had much impact because many terrorists have taken steps in recent years to mask their transactions, aware they might be under surveillance.

"I can understand why people are upset when any classified information is leaked, but I wouldn't call this a major damage to our national security or to the war on terror," Comras said in an interview. "A terrorist would have to be pretty dumb not to know that this was happening."

Administration officials disputed such claims, saying there is a big difference between a terrorist thinking the government may be watching him and knowing exactly what the government is doing to monitor financial flows. In a letter to the New York Times posted on the Treasury Department's Web site, outgoing Secretary John W. Snow wrote, "In choosing to expose this program, despite repeated pleas from high-level officials on both sides of the aisle, including myself, the Times undermined a highly successful counter-terrorism program and alerted terrorists to the methods and sources used to track their money trails."

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Wednesday, June 28, 2006

Newspapers to be Kept from Troublesome PA inmates

This Associated Press article ran in the N.Y. Times on Wednesday, June 28, 2006.

Justices Back Pa. on Prison Newspapers


Published: June 28, 2006

Filed at 10:35 a.m. ET

WASHINGTON (AP) -- The Supreme Court ruled Wednesday that Pennsylvania officials did not violate the free-speech rights of troublesome inmates by keeping secular newspapers and magazines away from them.

Justices, by a 6-3 vote, said the state could use newspapers as incentives to get inmates in a high-security unit to behave themselves.

But Justice Stephen Breyer wrote that Pennsylvania's win could be short-lived, depending on whether there is another constitutional challenge to the high-security unit's rules.

The decision reverses a ruling by the 3rd U.S. Circuit Court of Appeals but validates a dissent by the high court's newest member, Justice Samuel Alito, who sided with Pennsylvania when he served on the appellate court. Alito did not participate in the argument before the Supreme Court.

Breyer said that ''prison officials, relying on their professional judgment, reached an experience-based conclusion that the policies help to further legitimate prison objectives.''

Tuesday, June 27, 2006

Get It RIght

This Editorial originally ran in the Harrisburg Patriot News:

Monday, June 26, 2006

Nearly 200 major criminal convictions have been over turned through the use of DNA testing nationally, and at least three midstate people serving time for murder either have been released from prison or have strong grounds for a new trial as a result of this science.

The statistics alone bear out the majority in a 5-3 U.S. Supreme Court ruling that expands the ability of death row inmates to challenge their convictions based on DNA evidence produced after their trials.

The high court's ruling -- its first in a post-conviction appeal involving DNA analysis -- came in the case of a Tennessee man denied a new trial for a 20-year-old murder/rape conviction even though new DNA evidence raised serious ques tions about both his in volvement and motive. A U.S. District Court judge ruled the man hadn't demonstrated that the new findings probably resulted in the "conviction of one who is actually innocent."

Justice Anthony M. Kennedy, writing for the Supreme Court majority, said the lower court placed too great a burden on the defendant. Kennedy said it wasn't the court's role in such appeals to determine guilt or innocence, but rather to weigh whether the evidence might have raised reasonable doubt in a jury's mind.

That reasoning seems so eminently in line with basic tenets of the judicial system and the Constitution as to lead us to some head-scratching on the thinking of the lower court in dismissing the DNA findings. Likewise for the three dissenting justices -- John G. Roberts Jr., Antonin Scalia and Clarence Thomas (Justice Samuel A. Alito Jr. hadn't yet joined the court when arguments were heard).

This ruling and the overall issue of post-conviction DNA evidence particularly resonates in central Pennsylvania, where an investigation by Patriot-News reporter Pete Shellem helped produce DNA evidence that led to the release of Barry Laughman of Hanover after 16 years behind bars for murder. DNA testing is also among efforts by lawyers to gain a new trial for David Gladden of Harrisburg, whose 1995 conviction for murder of a city woman is now in serious question.

Statewide, nine inmates who spent a total of 110 years in Pennsylvania prisons have been cleared through the post-conviction use of DNA, according to state Sen. Stuart Greenleaf, R-Montgomery. He chairs the Senate Judiciary Committee and has been a forceful advocate of allowing convicts to seek DNA testing.

Of course, the number of convictions being overturned through DNA analysis also raises the question of what went wrong during original investigations. Greenleaf is pushing legislation that could create a commission -- composed of lawyers, judges, police and others involved in the criminal justice system -- to examine these cases with an eye toward correcting whatever errors led to these wrongful prosecutions.

That legislation passed the Senate earlier this year and is before the House Judiciary Committee. We continue to support creation of such a commission, not for punitive reasons but to eliminate future miscarriages of justice.

Toward that end, we applaud the Supreme Court ruling. The American judicial process is a sound one, but it's not perfect. In the end, the overriding principle is to get it right, particularly when lives hang in the balance.

Monday, June 26, 2006

Congressman Calls for Criminal Investigation of N.Y.Times

This article ran in the L.A. Times on Monday, 26, 2006.
Congressman Wants N.Y. Times Prosecuted

The exposure of U.S. surveillance of global bank data hurt security, says Rep. Peter T. King.

Two senators decline to join his call for a probe.

By Faye Fiore, Times Staff WriterJune 26, 2006

WASHINGTON — The chairman of the House Homeland Security Committee called Sunday for criminal prosecution of the New York Times, saying its report Friday on U.S. government surveillance of confidential banking records "compromised America's anti-terrorist policies."

Interviewed on "Fox News Sunday," Rep. Peter T. King (R-N.Y.) said the newspaper compromised national security when it exposed a Treasury Department program that secretly monitored worldwide money transfers to track terrorist financing. The program, instituted after the Sept. 11 attacks, bypasses traditional safeguards against government abuse.

Similar reports were published the same day by the Los Angeles Times and other news outlets."

By disclosing this in time of war, they have compromised America's anti-terrorist policies," said King, referring to New York Times reporters and editors. "Nobody elected the New York Times to do anything. And the New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people."

Calling the report "absolutely disgraceful," King said he would call on Atty. Gen. Alberto R. Gonzales to begin a criminal investigation of the newspaper.

The Bush administration urged the New York Times and the Los Angeles Times not to publish their reports, but the editors of each newspaper concluded that it was in the public interest to go forward.

"One of the most hotly debated issues in the country right now is the conduct of the war on terror," Los Angeles Times Editor Dean Baquet said Sunday. "It is our job to publish what we know about the government's role, to offer the public what it needs to know to participate in that debate."

Officials at the New York Times had no immediate comment on King's statements. Senators from both parties declined to join the Long Island congressman's call for an investigation and defended the role of newspapers as guardians against government abuse."We have seen the newspapers in this country act as effective watchdogs," Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said on the same program. "I don't think that the newspapers can have a totally free hand. But I think in the first instance, it is their judgment…. "I think it's premature to call for a prosecution of the New York Times, just like I think it's premature to say that the administration is entirely correct."

On CNN's "Late Edition," Sen. Joseph R. Biden Jr. (D-Del.) said that although he would have preferred the New York Times not publish the information, "the truth of the matter is, they've uncovered an awful lot of things that the government has been doing that doesn't make sense as well."

Both senators cited Thomas Jefferson's maxim: "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." According to the reports in the New York Times and Los Angeles Times, the financial tracking program was part of an aggressive post-Sept. 11 effort to gather intelligence, tapping into the world's largest financial communication network for information on bank transfers. The network — run by the Society for Worldwide Interbank Financial Telecommunication, or SWIFT — carries up to 12.7 million messages a day. Those messages typically include names and account numbers of bank customers — private citizens and huge corporations alike — that are sending or receiving funds.

To gain access to the information, the Bush administration used administrative subpoenas, which are not subject to independent governmental reviews designed to prevent abuse.

The SWIFT program is part of the administration's broad expansion of anti-terrorism intelligence-gathering methods, which also include warrantless surveillance of some phone calls and e-mails into and out of the U.S. The New York Times first reported on that program, run by the National Security Agency, late last year.

On Sunday, Specter indicated that Congress and the White House were nearing agreement on a proposal to submit all such eavesdropping to the secret federal court that considers intelligence matters."

We're getting close with the discussions with the White House, I think, to having the wiretapping issue submitted to the Foreign Intelligence Surveillance Court," he said. "That would be a big step forward for the protection of constitutional rights and civil liberties.

"The White House had initially argued that the president could approve warrantless surveillance in terrorism cases under his powers as commander in chief, but critics contended that the Federal Intelligence Surveillance Act, passed in 1978, required communications surveillance in the United States to be approved by the secret intelligence court.