Three counties have fought to opt out of a fingerprint-sharing program. (San Diego Union-Tribune/ZUMApress.com)

Immigration and Customs Enforcement official David Venturella started off a meeting with San Francisco law enforcement leaders on Tuesday with an apology. ICE, he admitted, had given conflicting information about Secure Communities, a program that shares fingerprints taken for criminal background checks with federal immigration enforcement, and whether counties like San Francisco could opt out.

[Immigration1] The meeting was one of three held in the past week — with officials from Arlington, Va., on Nov. 5, and from Santa Clara, Calif., later on Tuesday — between ICE and communities that had voted to be removed from the program, claiming it could harm public safety and lead to fear of police among immigrants.

In all three, the message was the same: Venturella, the assistant director of Secure Communities, acknowledged there had been reports from ICE that the program was optional and that such meetings were the first step in opting out. But the counties could not withhold information from federal immigration authorities, he informed them.

“They flew all the way here just to basically say, ‘We’re going back on our word,’” said Angela Chan, an attorney with the Asian Law Caucus who was briefed after the meeting Tuesday. “The whole entire thing is kind of a puppet show.”

The message on Secure Communities and whether or not counties could be removed from the program has changed multiple times in the last six months, as local officials in Arlington, San Francisco and Santa Clara sought to determine how they could opt out of sending fingerprints to immigration enforcement. Now, even after ICE held meetings with the three counties confirming that opting out is impossible, a coalition of civil rights groups is fighting to get more information on the program and how communities can avoid joining it.

The key, according to activists, will be a Dec. 6 hearing on an injunction filed against the Department of Homeland Security last month by the National Day Laborer Organization Network, the Center for Constitutional Rights and the Immigration Justice Clinic of the Cardozo School of Law. A court in New York will decide whether Homeland Security officials have to hand over documents demanded by the groups in February related to opting out.

With those documents, critics of the program hope to be able to prove what Venturella alluded to at the beginning of the San Francisco meeting: The agency has been misleading the public — albeit perhaps unintentionally — about how Secure Communities works and what it requires from local police forces that would rather not share fingerprints with immigration officials.

“What their public definition of ‘opting out’ is has changed based on what they think they can get away with,” Chan said.

Officials in 34 states have signed memorandums of understanding to participate in the program, which so far is voluntary at the state level. (Some governors, such as Democrats Deval Patrick in Massachusetts and Bill Ritter in Colorado, have delayed requests to sign into Secure Communities, while other states are slated to join the program in the next few years.) There was indication from ICE officials this summer that local participation was also optional, even in states where governors had agreed to participate.

“No jurisdiction will be activated if they oppose it,” Dan Cadman, an ICE regional coordinator for the program, wrote in a July 23 email to the New York State Division of Criminal Justice Services. “There is no ambiguity on that point. We get it.”

On Aug. 17, ICE released a report called “Setting the Record Straight” that laid out specific steps for counties that wanted to opt out of Secure Communities. The steps were later reiterated in letters by Homeland Security Secretary Janet Napolitano and an assistant attorney general.

But a sudden message shift on Secure Communities occurred in the beginning of October. Immigration officials began to say opting out was impossible. “We don’t consider Secure Communities an opt in/opt out program,” Napolitano said on Oct. 6. By Oct. 20, the report called “Setting the Record Straight” went missing from ICE’s website.

The options presented to Arlington, San Francisco and Santa Clara were far from what the counties expected when they voted to opt out. In a memo to Arlington County board members after her Nov. 5 meeting with ICE, County Manager Barbara Donellan clarified ICE’s definition of opting out of Secure Communities.

“All jurisdictions have the option of not receiving the results of ICE’s database inquiries. (This option is what ICE officials were referring to as the ‘opt out,’ for localities, and they acknowledged the confusion these statements have created),” she wrote.

For critics of the program, the new message that Secure Communities is mandatory is a major problem.

“If ICE for some reason decides not to follow through, I think we’re looking at possible massive deception,” Sarahi Uribe, lead organizer of an anti-Secure Communities coalition called the Uncover The Truth Campaign, told TWI in October.

But there is some hope for counties that don’t want to help immigration officials deport undocumented immigrants who are released without being charged with crimes. (In cases of domestic violence, for example, police sometimes arrest both parties until they can determine which person is the victim, a practice that has led to deportation proceedings for some abuse victims under Secure Communities.)

ICE officials said Tuesday that the holds they place on illegal immigrants detected under Secure Community are optional for local police — meaning law enforcement agencies could ignore detainer requests from ICE and release immigrants they do not charge with crimes, said Eileen Hirst, a spokeswoman for San Francisco Sheriff Mike Hennessey who was at the meeting Tuesday.

“That’s the silver lining,” Chan said. “At least he didn’t go back on his word on that.”

The Center for Constitutional Rights’s Maria LaHood said in a statement that the court ”has effectively condoned torture by denying Maher’s right to seek a remedy. It is now up to President Obama and Congress to apologize to Maher for what the Bush administration did to him, to make clear that our laws prohibiting torture apply to everyone, including federal officials, and to hold those officials accountable.”

We lose ourselves when we compromise the very ideals that we fight to defend. (Applause.) And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.

He was talking about closing Guantanamo Bay, and CCR brings up Obama’s words in the context of the decision not to repatriate about 40 Yemeni detainees at Guantanamo Bay who are cleared for release. But doesn’t this portion of the Nobel speech have more salience in the context of the new “terror prone nation” no-fly rules, which exhibit all the signs of racial profiling without forthrightly admitting that’s what it is? If you’re from a Muslim country, or a country with a lot of Muslims in it, you’re going to be pulled out of airport security and searched, even though that wouldn’t have caught shoebomber Richard Reid; even though Bush appointees Michael Chertoff and Mike Hayden argued against it on “Meet The Press”; and even though Rahm Emanuel told The New York Times’ Peter Baker that Obama “considers his speech in Cairo to the Islamic world in June central to his efforts to combat terrorism.”

What did he say in Cairo?

America and Islam are not exclusive and need not be in competition.  Instead, they overlap, and share common principles — principles of justice and progress; tolerance and the dignity of all human beings.

Yes, the dignity and the justice of being pulled out of line and strip searched for a bomb hidden in your anus because you share, in the broadest possible sense, the same faith or heritage as a group of murderous criminals.

In the same case, however, Turkmen v. Ashcroft, the court also sent back the plaintiffs’ claims that they were held in abusive conditions of confinement following the terrorist attacks on Sept. 11, 2001. They’ll have another chance to make those claims, but, significantly, will have to meet the Supreme Court’s new heightened pleading standards set out in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

Calling it “the latest in a string of seriously misguided decisions related to the closing of the secure facility at Guantanamo Bay,” McConnell said in a statement that holding the same prisoners on U.S. soil takes the wind out of the sails of the administration’s earlier argument that the prison at Guantanamo is a powerful recruiting tool for al-Qaeda.

The explanation we used to get for moving detainees onto American soil was that Guantanamo’s existence is a potent recruiting tool for terrorists. But even if you grant that, it’s hard to see how simply changing Guantanamo’s mailing address would eliminate the problem. Does anyone really believe Al Jazeera will ignore the fact that enemy combatants are being held on American soil? It’s naïve to think our European critics, the American Left, or Al Qaeda will be pacified by creating an internment camp in Northern Illinois; a ‘Gitmo North’ instead of ‘Gitmo South.’

Yesterday, although some more moderate civil liberties and human rights groups praised the Obama administration’s decision to move Guantanamo detainees to Illinois as an important first step to closing down the notorious prison in Cuba, some voiced concern that this would simply shift indefinite detention without trial rather than eliminate it.

As the Center for Constitutional Rights’ Executive Director Vincent Warren said in a statement yesterday:

If President Obama is simply moving detainees from one Guantánamo to another, he has done nothing to honor his pledge to close the prison camp. …

Moving the Guantánamo system onshore is not change. Whether in Thomson, IL, at Guantánamo, or elsewhere, the very idea that we would toss aside our founding constitutional principles and allow any executive the power of kings to imprison someone forever without a trial is anathema to democracy.

In the past, McConnell’s principle complaint about moving Guantanamo detainees onto U.S. soil was that they might be accorded more constitutional rights and would endanger U.S. national security. Yesterday, he repeated those arguments as well, predicting that “There will now be another terrorist target in the heartland of America” and that detainees will be able to communicate with “terrorists on the outside,” — “a danger that would undoubtedly increase with the additional legal rights detainees will enjoy once they are moved onto U.S. soil.”

In a letter sent yesterday to Illinois Gov. Pat Quinn, administration officials promised that terror suspects would be in a separate part of the facility run by the U.S. military, in a security situation “beyond Supermax,” and will be denied the ability to communicate with other federal prisoners.

“Closing the Guantanamo detention facility is a necessary and important step toward strengthening counterterrorism efforts and rebuilding the reputation of the United States as a nation committed to the rule of law,” stated Elisa Massimino, Human Rights First’s President and CEO. “We are deeply concerned, however, about the persistent implication that a substantial number of Guantanamo prisoners will be held indefinitely, without charge or trial.”

Vince Warren of the Center for Constitutional Rights:

If President Obama is simply moving detainees from one Guantánamo to another, he has done nothing to honor his pledge to close the prison camp. The vast majority of detainees remaining at Guantánamo will never be charged with anything. Yet the president has made clear that he believes he can continue to hold these men, most of whom have already been in Guantánamo for eight years and should never have been detained in the first place, for as long as he wants without any trial whatsoever.

Moving the Guantánamo system onshore is not change. Whether in Thomson, IL, at Guantánamo, or elsewhere, the very idea that we would toss aside our founding constitutional principles and allow any executive the power of kings to imprison someone forever without a trial is anathema to democracy.

David Remes, who represents 20 Guantanamo detainees, emails to say, “It would only perpetuate the injustice of Guantanamo to use Thomson to hold detainees indefinitely without charge. We’ve been holding these men without charge going on eight years. It’s enough. These men don’t need to be moved from one prison to another. That’s no fix. They need to be sent home. And in the case of men who can’t be sent home, other countries must be persuaded to take them.”

Well, that remains “notional,” according to a senior administration official. For now, the planned Thomson cohort will face charges in military commissions. I don’t expect any civil liberties organ to be happy with that, as the community by and large is pushing for trials in civilian federal courts. But it’s not the same thing as indefinite detention without charge.

I can’t wait to see what my inbox looks like after this post…

The Obama administration, like the Bush administration before it, has argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The four men — Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith — were captured in late 2001 in Afghanistan and transferred to Guantanamo in early 2002. They were returned to the United Kingdom in 2004.

Represented by the Center for Constitutional Rights and Washington, D.C., lawyer Eric Lewis, the four men sued former Secretary of Defense Donald Rumsfeld, the Chairmen of the Joint Chiefs of Staff, and senior military officers for prolonged arbitrary detention, torture, cruel and unusual punishment, and denial of their religious rights. The former prisoners say they were subjected to repeated beatings, sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment.

As the court notes in its order, the Bill of Attainder clause has only been successfully invoked five times in the Supreme Court since the Constitution was signed. Still, Judge Nina Gershon of the Eastern District of New York ruled that this case may wind up being the sixth.

ACORN and its affiliates, represented by the Center for Constitutional Rights, “have raised a fundamental issue of separation of powers,” she wrote. “They have been singled out by Congress for punishment that directly and immediately affects their ability to continue to obtain federal funding, in the absence of any judicial, or administrative, process adjudicating guilt. … The public will not suffer harm by allowing the plaintiffs to continue work on contracts duly awarded by federal agencies.”

ACORN and its lawyers claim that Congress voted to cut off funding for the organization, which supports the development of low-income housing and voter registration, as the result of a right-wing public relations campaign against ACORN and others for their efforts to register low-income and largely Democratic voters.

Guantanamo detainees line up for morning prayers. (The Toronto Star/ZUMApress.com)

How did prison guards at Guantanamo Bay overlook three men hanging from nooses in their cells for more than two hours, in what was supposed to be a super-high security prison housing “the worst of the worst” terrorists in the world?

That’s one of the central questions addressed by a new report released on Monday from Seton Hall University Law School about the deaths of three detainees at Guantanamo Bay on the night of June 10, 2006. The report finds that government officials, after failing to prevent the prisoners’ deaths, then sought to deflect responsibility by claiming that the men were engaging in “asymmetrical warfare” against the United States, tried to hide what happened from the media and detainees’ lawyers, and neglected to conduct a thorough and credible investigation or hold any prison guards responsible.

[Law1]These latest revelations about the deaths of three men at Guantanamo are consistent with a broader trend in how the U.S. government has tried to conceal the circumstances of deaths in U.S. custody and shield U.S. officials from liability, by seeking to dismiss all lawsuits brought against government officials by family members of deceased detainees.

TWI recently reported that the Obama administration is fighting to squelch a lawsuit brought by the families of two of the prisoners who are the subject of the Seton Hall report, claiming that a law passed by Congress protects U.S. officials from liability for any mistreatment of detainees who were declared “enemy combatants” and held in U.S. custody. The government also argues — most recently in a legal brief filed last Friday — that the relatives of the men are not entitled to sue because, among other things, the court should not interfere in foreign policy and national security matters, and a remedy would “have a detrimental impact on the effectiveness of the military.” The government also argues that the officials sued are immune from suit because the dead prisoners did not have any constitutional rights to better care or supervision, and none of the 24 military and former military officials sued personally participated in denying them any constitutional rights. The government argues that neither the Constitution’s Fifth Amendment right to Due Process nor the Eighth Amendment’s prohibition on cruel and unusual punishment apply to Guantanamo detainees.

As Salon blogger and Constitutional lawyer Glenn Greenwald wrote on Monday: “All of this is depressingly consistent with multiple other cases in which the Obama DOJ is attempting aggressively to shield even the most illegal and allegedly discontinued Bush programs from judicial review.” In each case, the administration has argued, as aggressively as the Bush administration ever did, that “federal courts have no right to adjudicate claims that the Government violated the Constitution and the law,” writes Greenwald.

TWI has pointed out and Harper’s contributing editor and human rights lawyer Scott Horton wrote over the weekend that the government is even making these claims to defend John Yoo, and to argue that no government lawyers ought to be held responsible for advising the government to engage in clearly illegal conduct, even if the consequences were, forseeably, that someone would be tortured or even killed.

In their legal complaint, the fathers of two of the young men, Yasser Al-Zahrani and Salah Al-Salami, both in their 20s, claim their sons were beaten, sleep-deprived, isolated, held in freezing cold or excruciatingly hot temperatures, humiliated, prevented from practicing their religion and denied necessary medication. The fathers, represented by the Center for Constitutional Rights, claim the young men were obviously suffering from deteriorating mental health and growing despair. Deemed “enemy combatants,” they’d spent four years locked up at the Guantanamo prison camp without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case in a court. Both had engaged in a prolonged hunger strike with other prisoners, and, their fathers say, clearly presented a high risk of suicide.

Yet somehow, as the Seton Hall report points out, the three men were left unsupervised in their cells for long enough that they were able to tear up their sheets and clothing and braid them into a noose; make mannequins of themselves to fool guards into believing they were asleep in their cells; hang sheets to block the guards’ view in violation of prison rules; stuff rags down their own throats; tie their own feet and hands together; hang the noose from the cell wall or ceiling; climb up on to the sink in the cell, put the noose around their necks and release their weight so as to die by self-strangulation; and hang dead for at least two hours in the cell, without attracting any attention from the prison guards.

According to the report, five guards were responsible for 24-hour supervision of 28 detainees in the constantly-lit prison cells, which were also monitored by video cameras. Although the guards were initially suspected of giving false statements and read their Miranda rights, they were also ordered not to write out sworn statements, although that’s required by the military’s standard operating procedures. Ultimately, no one was held responsible for any wrongdoing, the report concludes.
Mark Denbeaux, a law professor at Seton Hall and Director of the school’s Center for Policy & Research, which conducted the study of the military’s investigation into the three deaths, said in a statement that the investigation shows “guards not on duty, detainees hanging dead in their cells for hours and guards leaving their posts to eat the detainees’ leftover food.”

Denbeaux also called the government’s investigation “a cover up,” adding that “given the gross inadequacy of the investigation the more compelling questions are: Who knew of the cover up? Who approved of the cover up, and why? The government’s investigation is slipshod, and its conclusion leaves the most important questions about this tragedy unanswered.”

A Pentagon spokesman reached late Monday said that defense department officials had not yet reviewed the Seton Hall report and had no comment.

In light of the Obama administration’s consistent position that government officials cannot be held legally liable for any mistreatment of Guantanamo detainees, however, the answers to those remaining questions may never be answered.

While conceding that “Torture is illegal under federal law, and the United States government repudiates it”, even now the Solicitor General stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it also violates fundamental rights; no less so when hidden from public view at Guantánamo Bay. Respondents appear willing to let the final word on torture and religious abuse at Guantánamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so. Yet whether United States officials are free to engage in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.

Rasul v. Rumsfeld, as I’ve explained before, is one of the first lawsuits brought by victims of the Bush administration’s torture and abuse policies. The plaintiffs claim they were in Afghanistan to do humanitarian relief work when they were captured by the Northern Alliance and turned over (or sold for bounty) to U.S. authorities. They were eventually shipped to Guantanamo Bay, where they were imprisoned in cages and, they claim, tortured and humiliated, forced to shave their beards and watch their Korans desecrated. All of these claims are backed up by the legal memos that have since been produced from the Department of Justice that authorized such techniques as part of “enhanced” interrogations. The men were returned home to the UK without charge in 2004.

Many other victims of the Bush administration’s abuse policies have been precluded from suing because in 2006, Congress passed the Military Commissions Act, which stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad. (That provision of the law is being challenged in another lawsuit filed recently, which I describe here.) The plaintiffs in the Rasul case, however, were never even deemed “enemy combatants” by the U.S. military.

Still, the Obama administration is arguing, as it is in other cases, that it was not clear that foreigners picked up in Afghanistan and sent to Guantanamo Bay had a right not to be tortured by the U.S. government. But more than that, it’s arguing — as the lawyers in the Rasul case emphasize in the excerpt from their brief I quoted above — that there is no right under the Constitution not to be tortured at Guantanamo Bay, or at any offshore American-run prison.

As the Department of Justice recently wrote in another torture case: The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

In other words, it’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.

Eric Lewis and the Center for Constitutional Rights, who represent the four British men in the Rasul case, are now pleading with the U.S. Supreme Court to say it isn’t so, and accept their appeal from a D.C. Circuit Court ruling that dismissed the case.

The government seeks “to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers,” they write in their brief.

It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights. Without this Court’s guidance, the court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.