[Peace] News notes for Jun 02, '02 [part 2 of 2]

[C. G. Estabrook]

[continued from part 1]

SATURDAY, JUNE 01, 2002

ONE FOR THE BILL OF RIGHTS. A D.C. Circuit Court of Appeals yesterday
struck down a 30-year-old ban preventing protesters from demonstrating on
the sidewalk on the east side of the Capitol and handing out leaflets or
holding signs, the Post reports in its lead. The court found that security
concerns do not outweigh First Amendment rights at the "centerpiece of our
democracy," meaning the Capitol. The case was brought by the ACLU on
behalf of a New York artist who was arrested in 1997 for handing out
leaflets opposing restrictions on New York sidewalk artists. [WASH POST]

AND MAYBE ANOTHER. A Philadelphia Circuit Court strikes down a law that
required libraries to filter material harmful to minors on the Internet.
The three-judge panel referred to the filters as "blunt instruments" in
that they often block out "legitimate" sites. If the Justice Dept decides
to appeal [ANY BETS ON HOW ASHCROFT WILL USE OUR TAX MONEY?], the case
will go to the Supreme Court. [NYT]

RICH GET RICHER ELSEWHERE, TOO. undreds of "helicopter commuters" trying
to circumvent the crime boom in São Paulo, Brazil. The story opens with an
executive boarding his whirlybird after a hard day at the office. He's
dropped off within his walled city, protected by electrified fences-and a
private army of 1,100. This, by some accounts, according to the Post, "is
a vision of future urban life in the developing world." São Paulo averages
60 murders per 100,000 residents, compared with 7.8 in New York; there
have been 63 kidnappings this year, compared with 15 over the same period
last year.  "The surge in abductions has produced a cottage industry of
plastic surgeons who specialize in treating wealthy victims who return
from their ordeals with sliced ears, severed fingers and other missing
body parts that were sent to family members as threats for ransom
payment." [WASH POST]

YOU CAN'T SAY THAT. Yosef Barel, expected to be formally appointed by the
government on Sunday as the new director general of the Israel
Broadcasting Authority, yesterday issued orders to the IBA's editorial
departments prohibiting the use of the term "settlers" on radio and TV
broadcasts. Barel told editors that a person's place of residence should
be named, but the term "settler" or "settlements" can not be used.
[HA'ARETZ]

OUTSIDE THE LAW. A civil rights lawyer who has fought a record number of
police brutality and misconduct cases, is taking on the US government on
behalf of the Taliban and al-Qaida prisoners held at Guantanamo Bay.  In a
test case appeal to be heard in Los Angeles next month, Stephen Yagman
will argue that the government is violating its own and international laws
by continuing to hold the detainees without charge. He decided to
investigate the case after being horrified by a newspaper photograph of
hooded detainees at Camp X-Ray in January.  He put together a coalition of
experienced civil rights lawyers and academics, including Professor Erwin
Chemerinsky, the former US attorney general Ramsey Clark and the rabbis
Steven Jacob and Haim Dov Beliak.  Mr Yagman is best known for the many
actions he has successfully brought against the LAPD for police brutality,
including a landmark judgment against its former chief Darryl Gates. He
said: "We have asked for three things: for those detained in the camp to
be identified, for the reasons for their detention to be made known and
for each of them to be given an opportunity to come into an American
court. It's not very radical."  The issues are straightforward, he says.
The brief that he has filed in the ninth circuit of the US court of
appeals in states: "In bringing the detainees to Guantanamo and in housing
them in small cages, the United States has violated basic principles of
international human rights law that are binding on this country because of
treaties it has ratified.  "Is the United States government free to
violate the law, immune from accountability in any court? The answer must
be no."  Mr Yagman's initial attempts to represent the men were rebuffed
by the US authorities on the grounds that he and the coalition had not
been asked to act by the detainees and that the court did not have
jurisdiction to hear the case because Guantanamo Bay was not in the US.
"This is truly Orwellian," said Mr Yagman. "It is crazy to say that no US
court has jurisdiction. Does this mean that the Cubans are entitled to go
in and get them?" He asked, unsuccessfully, that the prisoners be told of
the legal action.  Mr Yagman argues that either Guantanamo Bay is part of
the US, in which case the men can be represented, or it it is part of
Cuba, in which case the habeas corpus laws under the Cuban constitution
should apply and would entitle the men to be represented or released.
Taking on the case had triggered a string of anonymous and threatening
calls, said Mr Yagman. "People are fearful of criticising the government
at all over this," he said. "But eventually something is going to have to
happen." Meanwhile, this week lawyers for suspected US Taliban fighter
John Lindh were told they could not interview potential witnesses at Camp
X-Ray in person. They have claimed that some of the detainees might be
able to support their client's contention that he was fighting for the
Taliban against the Northern Alliance and not against the US. Also this
week, in its annual report, Amnesty International accused the US of being
"selective" in its application of the Geneva convention concerning the
detainees.  "In suggesting that national security may require compromises
on human rights...the government risks signalling its allies that
'anything goes' in their own human rights practices." [GUARDIAN]

HEY, WE TREAT OUR OWN THE SAME WAY.  The government argued today that
Yasser Esam Hamdi, a prisoner from the Afghan war who was born in Baton
Rouge, La., and is in custody in Norfolk, should not be allowed to see a
lawyer for national security reasons. Mr. Hamdi, 22, reared in Saudi
Arabia, was in United States custody in Guantánamo Bay, Cuba, before being
transferred on April 6 to Norfolk, after officials learned that he might
hold dual American and Saudi citizenship. He has not been charged with any
crime and has not been allowed to see a lawyer on the grounds that he is
an enemy combatant.... [WASH POST]

AND IT JUST CONTINUES. Israeli forces have conducted fresh raids in a
wide-ranging operation across the West Bank, encountering little
resistance as they arrest suspected Palestinian militants. Troops thrust
back into Tulkarm and Bethlehem overnight, bringing to four - including
Nablus and Qalqilya - the number of Palestinian-ruled towns again under
Israeli occupation and sweeping curfews. [BBC]

COL. LATERAL IN CHARGE (II).  The US military has admitted shooting dead
three of its Afghan allies and wounding two others in a bungled operation
in the troubled east Afghan province of Paktia.

KILLER ON THE ROAD. The Colombian Government has broken off talks with the
country's second-largest rebel group, the National Liberation Army (ELN),
saying the guerrillas were not committed to peace... Our correspondent
says the announcement also paves the way for President-elect Alvaro Uribe
to carry out his plan of total war against the Marxist rebels ... since
1997 the ELN has been keen to make peace, but that this smaller group of
some 4,000 fighters has been ignored by the government in favour of the
larger Revolutionary Armed Forces of Colombia (FARC). But the three-year
peace process with the FARC ended in February when President Pastrana
broke off talks with that group. This prompted a guerrilla offensive which
has brought the 38-year conflict into the cities and to its bloodiest
levels to date. Only after February did the government pursue talks in
earnest with the ELN, which were held in Cuba with the support of Fidel
Castro ... Our correspondent says that it is perhaps no coincidence that
the announcement came as Assistant Secretary of State Otto Reich, a man
known as hardliner, was in Colombia. He is there to talk to
President-elect Alvaro Uribe about his plans to declare an all-out war on
the Marxist guerrillas in the name of the war on terrorism - perhaps with
the inducement of yet more US military aid. Mr Uribe has promised to
increase spending on the armed forces and double the number of
professional soldiers, in an attempt to force the rebels to the
negotiating table. The US has already provided more than $1bn for the
anti-narcotics battle in Colombia, the world's largest cocaine producer.
But Bogota is pressing Washington to extend its aid to funding the fight
against the rebels by lifting restrictions on the use of US military.
[GUARDIAN]

WELL, SOMEBODY SHOULD DO IT. The British newspaper, The Guardian, has
disclosed that senior Israeli and Palestinian politicians have held three
days of secret talks in a new bid to end their conflict. The Guardian,
which hosted the meeting in central England, also invited key figures from
Northern Ireland's peace process. The talks produced a surprising degree
of agreement between the Palestinian and Israeli politicians taking part,
according to The Guardian. The two sides heard from leading figures from
Northern Ireland about their breakthrough to peace and they said they had
learnt valuable lessons to take back to the Middle East. "If you had said
10 years ago that there would be peace in Northern Ireland or South
Africa, many would have been extremely sceptical, but there is no reason
why the Middle East should not take the same road," said Martin
McGuinness, a former IRA commander and now education minister in the
Northern Ireland assembly. One of the ideas discussed was the formation of
an Israeli-Palestinian shadow administration as an alternative to Israeli
Prime Minister Ariel Sharon's coalition government. [BBC]

REFLEXIVITY ALERT! The United States will strike pre-emptively against
suspected terrorists if necessary to deter attacks on Americans, President
Bush told West Point graduates Saturday. "The war on terror will not be
won on the defensive," he said ... "This government and the American
people are on watch. We are ready, because we know the terrorists have
more money and more men and more plans," Bush said. "The gravest danger to
freedom lies at the perilous crossroads of radicalism and technology,"
Bush said ... Bush said the nation cannot afford to "put our faith in the
word of tyrants who solemnly sign nonproliferation treaties and then
systematically break them." The administration says Iran, Iraq and North
Korea are out of compliance with such treaties. "All nations that decide
for aggression and terror will pay a price. We will not leave the safety
of America and the peace of the planet at the mercy of a few mad
terrorists and tyrants," he said. [AP]

OH, WE'RE SO GOING TO GET YOU... Bush never mentions Iraq by name, but
does say that "containment is not possible when unbalanced dictators with
weapons of mass destruction can deliver those weapons on missiles or
secretly provide them to terrorist allies," The papers pick that as a
reference to Iraq. The NYT writes, in fact, that the speech "seemed aimed
at preparing Americans for a potential war with Iraq." A senior
administration official later said that Bush "has no war plans on his
desk." [NYT]

WAR IS GOOD FOR BUSINESS. The government plans to resume making plutonium
triggers for nuclear warheads and is beginning design work on a
manufacturing plant, the Energy Department said Friday. The department
halted the production of plutonium "pits," or triggers, for warheads in
1989. The pit is a critical component of a nuclear weapon. "We need to
have the capacity to manufacture certified pits to maintain the safety,
security and reliability of the U.S. nuclear deterrent into the future,"
Energy Secretary Spencer Abraham said in a statement. The manufacturing
plant is expected to cost $2.2 billion to $4.4 billion, depending on the
production capacity, said a statement from DOE's National Nuclear Security
Administration ... The plutonium pit, about the size of a softball, is the
trigger that allows modern nuclear weapons to operate properly. They were
last produced at the DOE's Rocky Flats facility in Colorado. That facility
has been closed and now is in the midst of being cleaned of radioactive
waste. [AP]

THE LAWBREAKERS ARE IN DC. As the U.S. administration prepares to send
some 150 new detainees to Guantanamo Bay, Human Rights Watch warned that
their legal status is growing more problematic by the day. In a letter
sent this week to U.S. Secretary of Defense Donald Rumsfeld, Human Rights
Watch challenged plans that the Bush administration has floated to pursue
troubling lines of prosecution or even to hold the detainees indefinitely
without trial.  "The Bush administration cannot hold people indefinitely
without charge or send them to countries where they might be tortured,"
said Kenneth Roth, executive director of Human Rights Watch. "As time goes
by and the number of detainees grows, so does the pressure on the U.S.
government to act."  Roth said that the Bush administration has a legal
obligation to determine the detainees' status in accordance with the
Geneva Conventions, and then to launch criminal prosecutions where
credible evidence exists. The Bush administration could reasonably
prosecute some detainees at Guantanamo for conspiracy, so long as it does
not define "conspiracy" too broadly.  With the imminent completion of new
cells at the U.S. Naval Base at Guantanamo and anticipated transfer of
approximately 150 detainees from Afghanistan, the number of persons held
at Guantanamo is expected to exceed 500.  Human Rights Watch warned that
the US administration had a responsibility not to transfer or repatriate
detainees to countries where they may be at risk of torture. The U.S.
government has not returned prisoners it captured in Afghanistan to China,
for instance, and this policy needs to be applied more widely.  The points
raised in the letter include:  · Despite President Bush's claim to be
applying the "principles" of the Third Geneva Convention regulating
prisoner-of-war (POW) status, the United States continues to violate the
Geneva Conventions, particularly with respect to Taliban detainees. This
shortsighted transgression sets a dangerous precedent that could come back
to haunt U.S. and allied servicemembers who are captured by enemy forces
in this or future wars. Washington's refusal to treat the detainees as
POWs is perplexing because it would in no way inhibit legitimate U.S.
efforts to interrogate or prosecute people who have participated in
terrorist acts.

· There is no legal basis to treat as "battlefield detainees" suspects who
are captured outside Afghanistan and have no direct relationship with the
armed conflict. In such cases, the designation is a transparent effort to
circumvent the requirement of international human rights law that these
suspects be criminally charged or freed.

· New regulations address many of the faults in President Bush's proposed
military commissions, but flaws remain, including the failure to provide
appeal to a civilian court, such as the appeal allowed in courts-martial
to the United States Court of Appeals for the Armed Forces. The lack of
independent appeal allows the executive to serve as both prosecutor and
judge, undermining public confidence in the proceedings and increasing the
possibility of injustice.

· It could be appropriate to prosecute the Guantanamo detainees for the
crime of conspiracy if a suspect can be shown to have joined a criminal
enterprise knowing of its criminal purpose and with the intent of
furthering its criminal objectives. But it would be dangerous to apply
conspiracy theories too loosely. Given the variety of reasons that Afghans
and foreigners joined the Taliban, membership in a criminal conspiracy
should not be presumed from mere armed presence in Afghanistan.

· The Geneva Conventions permit many of the detainees to be held until the
end of active hostilities. But at some stage the genuine armed conflict in
Afghanistan will give way to a rhetorical war - more akin to law
enforcement efforts against other criminal activity, such as drug
trafficking or the mafia, that also involves potential loss of life. At
that point, detention without criminal charges is no more appropriate for
the Guantanamo detainees than it would be for a street-level drug dealer
picked up in any American city.

· The U.S. government has a duty to avoid transferring or assisting in the
transfer of any detainee to a country where he risks torture. Violation of
this duty carries criminal penalties enforceable in principle in any court
worldwide.

SUNDAY, JUNE 02, 2002

HEY, LET 'EM VOTE. Since 1990, 42 of 48 sub-Saharan African nations have
held multi-party elections, compared to only four in the early '80s. Then
again, the paper finds that Africans are living with deteriorating living
standards, declining per capita income, and rising unemployment.. A scrawl
upon a Nigerian wall in a burned-out neighborhood reads, ""Is this the
dividend of democracy we are talking about?" [NYT]

NOW WE CAN TALK ABOUT IT. The LAT fronts the first of a two-part series
looking into civilian casualties from the American bombing campaign over
Afghanistan. Today's tale focuses on the physical and emotional toll of
the bombings, prompting discussions of U.S. reparations. Equally likely to
provoke debate is the paper's analysis of the civilian casualty number.
The paper teases the issue here-the second part will supposedly flesh out
the analysis-saying it looked into 2,000 media reports of civilian
casualties, and "identified" just 194 incidents. [LAT]

AND OF COURSE THE FEEBIES. An analysis of the "new FBI guidelines" from
the Center for Democracy and Technology: on May 30, 2002, Attorney General
John Ashcroft issued revised guidelines for FBI investigations.

· The changes mean that the FBI, which has failed to manage the ocean of
information it already collects, will be gathering yet more information in
situations completely unconnected to any suspicion of criminal conduct,
and will be continuing for longer periods of time investigations that are
producing nothing.

· The expanded surveillance and use of data mining could be written off as
just a waste of money, but for two paramount problems: the changes are
likely to make the FBI less efficient in preventing terrorism, by
diverting resources down rat-holes of fruitless investigations; and the
DOJ has proven its determination since September 11 to arrest people based
on innocent coincidences and hold them in jail even after concluding that
they were unrelated to any terrorism and in some cases (the material
witnesses) had committed no legal violation at all.

· The FBI is using the terrorism crisis as a cover for a range of changes,
some of which have nothing to do with terrorism.

· The online surfing provisions, for example, relate not only to terrorism
cases, but to all other investigation -- drugs, white collar crime, public
corruption, and copyright infringement.

· Other changes affect how the FBI conducts investigations under RICO, the
racketeering and organized crime law, allowing the FBI to use the heavy
weaponry of RICO (forfeiture, enhanced penalties) against crimes that are
not committed for monetary gain.

· The FBI was never prohibited from surfing the Internet or using
commercial data mining services -- the FBI has long been a major customer
of many private information systems. But in the past, the search had to be
related to some investigation. The threshold was very low -- under the old
guidelines, the FBI could maintain a preliminary inquiry for 90 days using
data mining, undercover operations, photo surveillance, informants, etc,
whenever it had "information or an allegation whose responsible handling
required some further scrutiny." In fact, the FBI could open preliminary
inquiries solely for the purpose of data mining. But it had to be looking
for some criminal conduct. The new changes allow the data mining technique
-- who has changed apartments three times in the past 2 years? who has
been making a lot of international phone calls? -- as the basis for
generating the suspicion of criminal conduct in the first place.

Specific Changes

1. Topical Research. According to the explanatory memo, FBI agents could
not conduct online searches under the term "anthrax," even after the
initial appearance of the anthrax letters. That is absurd -- there was an
ongoing investigation. Anyhow, no privacy rights or civil liberties are
implicated in searches -- before or after the appearance of the anthrax
letter -- for words like "anthrax." This has little to do with searching
for words like "anthrax." The question is whether general topical research
includes searches for "Palestinian rights" or other terms with a
political, ethnic or religious significance. If it does, then it seems a
prelude to questioning people and even detaining them on the basis of
their exercise of political freedoms.

2. Online Surfing. This change is intended to allow FBI to search the
Internet before they have any indication of criminal conduct. In other
words, it authorizes fishing expeditions, plain and simple -- FBI agents
spending their days searching the Web to see what turns up -- or more
likely, FBI agents setting robots to search the web looking for certain
terms. But the guidelines do not seem to limit the type of searches. It is
one thing to surf for information about bomb making or child porn, but it
is another thing to search for information about Palestinian rights. This
change is not limited to terrorist cases.

3. Use of Commercial Data Mining Services. The FBI will now be conducting
fishing expeditions using the services of the people who decide what
catalogues to send you or what spam e-mail you will be interested in. The
problem is, the direct marketers can only call you during dinner time or
mail you another credit card offer based on that information -- the FBI
can arrest you. And since September 11 the FBI has in fact arrested and
held people based on innocent activity.

4. Preliminary Inquiries. This change is unclear. The DOJ claimed that
under the old guidelines, preliminary inquiries could not serve as the
basis for broader intelligence investigations. Yet the old Guidelines
clearly stated, "If, on the basis of information discovered in the course
of a preliminary inquiry, an investigation is warranted, it may be
conducted as a general crimes investigation, or a criminal intelligence
investigation, or both." See
http://www.usdoj.gov/ag/readingroom/generalcrimea.htm#general

5. Criminal Intelligence Investigations. These changes include the change
allowing investigations under RICO where there is no profit motive.
Otherwise these changes reduce headquarters oversight, running the risk
that worthless or improper investigations will be allowed to go on too
long.

6. Enhancing Preliminary Inquiries. Preliminary inquiries (PIs) allow the
FBI to conduct investigations even when there is no reasonable indication
of criminal activity. Under the old Guidelines for PIs, the FBI could use
all techniques except three: mail covers, mail openings and wiretaps. This
meant that the FBI could use informants, Internet searches, undercover
operations, physical and photographic surveillance, and data mining. Under
the old guidelines, if 90 days of investigation turned up no indication of
criminal activity, the investigation could be continued only with HQ
approval. Under the changes, PIs can continue 1 year without HQ approval.
This means that the FBI can conduct an investigation, using highly
intrusive techniques, for one year (and longer with HQ approval) even if
the investigation is turning up no reasonable indication of criminal
activity.

7. Information Systems. One of the biggest changes is the last one on the
DOJ list. It is called "Enhancing Information Analysis at FBI
Headquarters," but it says that the FBI is authorized to "participate in
.. information systems ... [that] draw on and retain pertinent information
from any source ... including ... publicly available information, whether
obtained directly or through services or resources (whether nonprofit or
commercial) that compile or analyze such information .... ." This means
that the FBI can subscribe to any commercial profiling and data mining
service, such as the one described on today's Washington Post business
page. Some data mining services routinely profile people by race and
religion. Another clause in the same new section permits acceptance and
retention of information "voluntarily provided by private entities," which
harkens back to the days of private intelligence gathering by right wing
groups.

Background

One fact suggesting that these changes are not a response to September 11
is this: All of the changes relate to the FBI's domestic guidelines, not
the international terrorism guidelines under which Osama bin Laden and Al
Qaeda are investigated.

The FBI is subject to two sets of guidelines, a classified set of
guidelines for foreign intelligence and international terrorism
investigations, and an unclassified set of guidelines on general crimes,
racketeering and domestic terrorism. The old domestic guidelines are at
http://www.usdoj.gov/ag/readingroom/generalcrimea.htm. A heavily redacted
copy of the international guidelines can be downloaded in PDF from
http://www.usdoj.gov/ag/readingroom/terrorismintel2.pdf

The distinction between foreign and domestic has nothing to do with where
the investigation is conducted -- both sets of guidelines relate to
investigations in the United States. Rather the difference between the two
sets of guidelines has to do with the nature of the organization being
investigated. The foreign guidelines govern investigations inside the
United States of foreign powers and international terrorism organizations
(such as al Qaeda or Hamas), groups that originate abroad but carry out
activities in the US. The domestic guidelines govern investigations of
organized crime and of terrorist groups that operate in the US and
originate in the US -- white supremacists, animal rights activists, what
remains of the Weather Underground.

In some ways, the foreign intelligence and international terrorism
guidelines have always given the FBI more latitude than the domestic
guidelines. In particular, they allow investigations to be conducted where
there is absolutely no suspicion of criminal activity -- investigations
can be opened merely on the basis of suspicion that a person is affiliated
with an international terrorist group, even if there is no evidence that
the person is doing anything illegal. The irony is that the FBI's failed
investigations of the Osama bin Laden group and of Islamic fundamentalists
in general were conducted under those looser guidelines, indicating that
the problem was not the limits imposed by guidelines but the failure of
the FBI to use the information it already had. [CDT.ORG]

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