Here’s Radack’s take on how Lieberman is using the incident to scare the American populace into suspecting more Muslims are home-grown terrorists.

What struck me about the hearing yesterday was how often Lieberman and others kept calling Nidal Hassan a “lone wolf” terrorist, suggesting not so subtly that the controversial “lone wolf” provision of the USA Patriot Act ought to be re-authorized. A recent House markup of the bill removed that provision, which allows the FBI to eavesdrop and otherwise target so-called “lone wolves” who allegedly plan all on their own, without any help from known foreign terrorist organizations, to launch a terrorist attack on the United States. One reason the provision was removed is because it’s never actually been used, and the Justice Department has had a hard time making the case that it’s actually necessary and not prone to abuse.

Judging from the comments at the Lieberman-led hearing yesterday, you would have thought that the Hasan case now offers the perfect argument for why that piece of the law is needed. What none of the senators mentioned, however, was that the “lone wolf” provision of the Patriot Act wouldn’t actually apply to Hasan.

For one thing, the government’s already said that Hasan did have communications with a foreign al-Qaeda operative, and so it could have already been monitoring him under other legal authorities. The second point overlooked at the hearing is that Hasan is a U.S. citizen, and the “lone wolf” provision only applies to a “non-U.S. person.”

It will be interesting to see how the “lone wolf” idea fares at the next Senate markup session of the bill.

These latest documents provide a glimpse of the early struggles between the FBI and the Pentagon over just how to conduct the “war on terror” and how to interrogate and treat that war’s detainees. Sadly, they reveal that the FBI knew perfectly well — and repeatedly warned Defense Department officials, as well as Justice Department lawyers — that the abusive interrogation techniques being used on detainees at Guantanamo Bay were likely to be ineffective and make subsequent prosecutions impossible.

As one memo says, while the interrogation techniques based on tactics used in the U.S. Army Search, Escape, Resistance and Evasion (SERE) training “may be effective in eliciting tactical intelligence in a battlefield context, the reliability of information obtained using such tactics is highly questionable, not to mention potentially legally inadmissible in court.”

That memo was written in May 2003.  The “enhanced” interrogation techniques, such as stress positions and prolonged sleep deprivation, were still being used and justified in memos as late as July 2007. The memo raises several important questions. Did the Office of Legal Counsel lawyers drafting those later memos for the CIA not know about the FBI’s earlier objections? Or did they just dismiss them out of hand? Were they told to ignore those earlier conclusions?

Then there’s the fact that senior officials from the Criminal Investigative Task Force, including the chief psychologist with the Naval Criminal Investigative Service “repeatedly argued for implementation of a rapport-based approach” and “lamented the fact that many DHS [Defense Human Intelligence Services] interrogators seem to believe that the only way to elicit information from uncooperative detainees is to use aggressive techniques on them.”

“Despite objections raised by the [Behavioral Analysis Unit of the FBI], the DHS initiated an aggressive interrogation plan for #63,” who elsewhere in the document is identified as Mohammed al-Qatani. “This plan incorporated a confusing array of physical and psychological stressors which were designed, presumably, to elicit #63’s cooperation. Needless to say, this plan was eventually abandoned when the DHS realized it was not working and when #63 had to be hospitalized briefly.”

Officials from the Criminal Investigative Task Force and the Behavioral Analysis Unit drafted a letter “reiterating the strengths of the FBI/CITF approach” and providing “a detailed historical record of the development of interagency policies regarding aggressive interrogation techniques in GTMO.” The letter also argued that they were a bad idea.

Not only did the officials not succeed in convincing DHS to abandon the techniques, but the document described how the military and DHS inaccurately portrayed to the Pentagon that the FBI’s Behavioral Analysis Unit approved of and helped design the very techniques that the BAU warned would backfire.

Although we knew before that the FBI had disagreed with the so-called “enhanced” interrogation techniques and refused to participate in them, this latest release of previously classified information reveals the extent to which FBI officials made both the legal and practical case to senior Pentagon and Justice Department officials for why the usual rules on interrogations should be followed.

That they were so blatantly ignored suggests more than just bad judgment. It suggests a deliberate indifference to the facts and the law, which cries out for a more thorough investigation.

09 Memos

The operation was supposed to be part of an ICE program to deport dangerous illegal immigrants who had previously been ordered deported and had prior criminal records, reports The Arizona Republic. But of the 80 people arrested, only six had prior criminal histories, and only two of those were fugitives. According to the ACLU, “at least 23 of the 80 arrests were for people that ICE calls ‘incidentals’ — people who happened to be present at a residence or workplace when authorities showed up looking for someone else.”

This afternoon, Sheriff Joe Arpaio of Maricopa County, Arizona, who’s known for encouraging local law enforcement to search out illegal immigrants and is under federal investigation for racial profiling as a result, tweeted that “the ACLU doesn’t want ICE arresting illegals either,” with a link to the Arizona Republic story.

The issue in Kiyemba v. Obama is whether the courts have the power to order an “alien” (non-U.S. resident) detainee held at Guantanamo Bay released into the United States, after determining the government has no grounds to keep holding him. But what if Congress then makes it impossible for the government to release the prisoner in the United States by withholding all necessary funding? Two separate bills signed yesterday — specifically, Sec. 1041 of the National Defense Authorization Act and Sec. 552(a) of the Homeland Security appropriations bill — appear to do just that. As Denniston points out, those laws open up a key question about Congress’ constitutional powers. In effect, it would mean that Congress could effectively suspend the prisoner’s right to habeas corpus – that is, to be released from unlawful detention.

Of course, by the time the court gets around to hearing the case this winter, President Obama may have already announced a new detainee policy, and Congress may have agreed to alter its spending restrictions. And if the Uighurs are all resettled, their case before the high court will be moot. But if the case survives until late winter, when the Supreme Court is expected to hear it, the administration and Congress may both get slapped down.

Although the Senate in July passed an amendment to build an additional 300 miles of pedestrian fence at the border, that provision, sponsored by Sen. Jim DeMint (R-S.C.), was stripped during subsequent negotiations with the House. The Senate passed the altered bill Tuesday afternoon by a vote of 79 to 19. DeMint voted against the measure.

Michael Degnan, Washington representative for the Sierra Club, a long-time opponent of the fence, issued this statement following the Senate vote:

Our government has already poured billions of dollars into building walls and barriers across 600 miles of the U.S./Mexico border. Although the effectiveness of these walls has never been measured, the negative impacts to communities and wildlife is clear. Border walls have separated families, caused damaging floods and erosion, and fractured habitat and migration corridors vital to wildlife that has been pushed to the brink of extinction.

We hope that this historic action signals a readiness to permanently move our country’s border policy beyond construction of costly and destructive border walls.

The report finds that although many immigrants have not committed crimes, they’re held in secure facilities designed for criminals and often in far more restrictive conditions than necessary. They also often don’t have sufficient access to medical and legal assistance while in custody.

The reforms announced today by DHS Secretary Janet Napolitano and Immigration and Customs Enforcement Assistant Secretary John Morton involve primarily centralizing control of the detention facilities under ICE headquarters’ supervision; classifying immigrant detainees according to their risk level and housing them accordingly; improving detainees’ access to medical and legal services; and increasing supervision of the facilities by federal employees rather than by private contractors.

Longtime critics of the agency’s detention practices are not completely satisfied, however, noting that DHS’s proposals fail to include a way to ensure that the agency complies with improved standards, that immigrants aren’t unnecessarily locked up, and that innocent people aren’t harassed by local authorities empowered to enforce federal immigration law.

As Judy Rabinovitz, deputy director of the American Civil Liberties Union Immigrants’ Rights Project, put it in a statement released yesterday, “Meaningful reform of the system must focus not only on the conditions under which immigrants are being detained, but on why they are being detained in the first place — often for prolonged periods of time — when other forms of supervised release would be sufficient to address the government’s concerns, as well as the need for basic due process.”

Linton Joaquin, general counsel for the National Immigration Law Center, called the proposal “a step in the right direction” but said that “as long as these standards are not enforceable, the rights violations faced by the men and women in these systems will persist.”

The latest data from the Syracuse University-based Transactional Records Access Clearinghouse, or TRAC, seems to confirm that. Prosecutions referred by the Immigration and Customs Agency, or ICE, were up dramatically in June — a 47 percent increase from the previous month, and a 109.6 percent increase from five years ago, under the Bush administration.

According to TRAC, which bases its studies on data released from the Justice Department, 89 percent of the June 2009 cases were classified as “immigration” prosecutions, while less than 7 percent were for drug trafficking.

In May, Homeland Security Secretary Janet Napolitano pledged to focus her agency’s efforts on lawbreaking by employers of illegal immigrants, rather than on prosecuting the immigrants themselves.

A detailed breakdown of the latest Justice Department data can be found here.

Maybe DHS only wanted limited comments, because it originally planned to stop accepting them on Sunday, according to Wendy Sefsaf at Immigration Impact, the blog of the Immigration Policy Center. The agency has extended that deadline to Wednesday.

Sefsaf also reports that the DHS Website’s comments last week were “being filled up by the same template xenophobia that plagues so many of the comments section of online newspapers and blogs all over the web. At best, the comments are tinged with racism and anti-immigrant sentiment. At worst, the comments are totally irrelevant to DHS’s goals for which they are seeking comment.”

Immigration Impact is encouraging people with different perspectives to get involved. You too can participate by clicking here.

The mother, Baltazar Cruz, now faces deportation, while her baby was given to a couple in Ocean Springs, Miss.

At this point, it’s not clear if there was some miscommunication that contributed to Cruz losing her baby — Cruz speaks only Chatino (an indigenous language native to Mexico), barely any Spanish and no English. The hospital relied on the translation by an American of Puerto Rican descent who spoke no Chatino and whose Spanish was significantly different from the way it’s spoken in Mexico.

According to the Mississippi Clarion-Ledger, the state of Mississippi, based on that translation, portrayed Cruz as essentially a prostitute (in fact, she was working in a Chinese restaurant) and insisted that the child be put up for adoption. Since “she has failed to learn the English language,” the newspaper quotes [state] documents as saying, she was “unable to call for assistance for transportation to the hospital” to give birth.

Lawyers from the Mississippi Immigrants’ Rights Alliance and the Alabama-based Southern Poverty Law Center are now trying to help Cruz get her baby back, but they can’t comment on the case because a judge has imposed a gag order.

It’s part of Department of Homeland Security Secretary Janet Napolitano’s tough-on-illegal immigrants strategy, and it wins President Obama points from conservatives who fear he’ll go soft on “illegals”. But the abuse of immigrants by local sheriffs like Joe Arpaio in Arizona have outraged immigrant advocacy groups, while even major law enforcement organizations oppose saddling local cops with federal law enforcement responsibilities that often undermine police forces’ ability to do their jobs.

Stepping up the pressure, on Tuesday, 521 different civil rights and advocacy organizations sent a letter to President Obama urging him to immediately terminate the program, known as 287(g) after the section of the immigration law that authorizes it.

Capitalizing on the President’s recent remarks acknowledging a history of racial profiling in the United States in connection with the arrest of his friend, Harvard Professor Henry Louis Gates Jr., the letter reads in part:

We applaud your recent remarks acknowledging, that “there is a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately.” However, DHS’s continued use of the 287(g) program exacerbates exactly this type of racial profiling. In light of well-documented evidence that local law enforcement agencies are using 287(g) powers to justify and intensify racial profiling, Secretary Napolitano’s July 10, 2009 announcement that DHS has expanded the 287(g) program to include 11 new jurisdictions is deeply alarming.

The letter comes on the heels of a recent admission by President Obama that he’s not likely to get an immigration reform bill passed this year, though he’d promised Latino groups he’d make that a priority when he was running for office.

Immigration experts say the continued crackdown on enforcement without providing an opportunity for legalization of otherwise law-abiding immigrants could dampen Latino voters’ initial enthusiasm for Obama, as well as for other Democrats in the next round of elections.