New reports document discriminatory government treatment of Muslims in America

From our Restore Fairness blog-

Guest blogger: Amna Akbar, Senior Research Scholar & Advocacy Fellow at the Center for Human Rights and Global Justice at NYU School of Law, and co-author of both reports mentioned below.

Cross-posted from Rights Working Group.

There are visible and less visible ways the government has targeted Muslims, Arabs, and South Asians since September 11, 2001. With the death of Osama bin Laden, however, mainstream pundits, commentators, and lawmakers have attempted to push us to forget the damage and the grief this “war on terror” has brought to our communities—and to immigrant communities and communities of color more broadly.

The “war on terror” has provided a rationale and an argument for an augmentation of state power.  As in prior historical moments, the brunt of increased state power has fallen on vulnerable communities.

But it is important to remember and account for the ways in which our families and communities have been marked and have suffered.  To grieve for the ways in which we have had to change.

This past month, the Center for Human Rights and Global Justice (CHRGJ) has released two reports documenting, remembering, and memorializing.  Both reports raise serious human rights concerns.

Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated Terrorism Allegations– which we released with the Asian American Legal Defense and Education Fund (AALDEF)– draws on interviews with attorneys and community-based groups, court documents, and media accounts to identify five key under-documented patterns of how the U.S. government has discriminatorily abused the immigration legal system against Muslim immigrants.  The patterns we document include the U.S. government’s use of unsubstantiated terrorism-related allegations without bringing official charges in cases involving ordinary immigration violations.  These practices prejudice the immigration judge and place the Muslim immigrant in a precarious situation where he is unable to defend himself against the allegations.  As a result, he is often pressured to self-deport.

Another pattern we document is the U.S. government’s use of flimsy immigration charges.  For example, the government often uses false statement charges for failure to disclose tenuous ties to Muslim charitable organizations in a way that seems to target Muslim immigrants for religious and political activities and affiliations.

The overall effect of these practices is that religious, cultural, and political affiliations and lawful activities of Muslims are being construed as dangerous terrorism-related factors to justify detention, deportation, and denial of immigration benefits.  The government seems to be targeting Muslim immigrants not for any particular acts, but on the basis of unsubstantiated innuendo drawing largely on their religious and ethnic identities, political views, employment histories, and ties to their home countries.

The patterns outlined in Under the Radar seem to be guided by racial and religious stereotypes, in a way that constitutes discrimination in violation of U.S. obligations under international human rights law.  The patterns also suggest the United States is failing to uphold its international human rights obligations to guarantee the rights to due process; liberty and security of person; freedom of religion; freedom of expression and opinion; and the right to privacy and family.   CHRGJ and AALDEF call on the government to put an immediate stop to the discriminatory targeting of Muslims through the immigration system, to provide greater transparency and accountability for immigration policies and enforcement.

Targeted and Entrapped: Manufacturing the ‘Homegrown Threat’ critically examines three high-profile domestic terrorism prosecutions and raises serious questions about the role of the Federal Bureau of Investigation (FBI) and the New York City Police Department (NYPD) in constructing the specter of “homegrown” terrorism through the deployment of paid informants to encourage terrorist plots in Muslim communities.  Focusing on the government’s cases against the Newburgh Four, the Fort Dix Five, and Shahawar Matin Siraj, the report relies on court documents, media accounts, and interviews with family members of the defendants to critically assess the government’s practices.  The report also, lays bare the devastating toll these practices have had on the families involved.

In the cases we examined, the government sent paid informants into Muslim communities, without any basis for suspicion of criminal activity.  The government’s informants introduced, cultivated, and then aggressively pushed ideas about violent jihad, encouraging the defendants to believe that it was their duty to take action against the United States.  The informants also selected or encouraged the proposed locations that the defendants would later be accused of targeting, and provided the defendants with—or encouraged the defendants to acquire—material evidence, such as weaponry or violent videos, which would later be used to convict them.  The defendants in these cases have all been convicted and currently face prison sentences ranging from 25 years to life.

The families caught up in these abusive government practices have been torn apart. As a result of these prosecutions, they have lost their loved ones to prison, but they have also been branded as families of terrorists. They have lost jobs, family, and friends. Though many of them are organizing for change, the devastating impacts cannot be overestimated.

A number of cases around the country, raising similar concerns, suggest that these practices are illustrative of larger patterns of law enforcement activities targeting Muslim communities.  The report considers key trends in counterterrorism law enforcement policies that have facilitated these practices, including the government’s promulgation of so-called radicalization theories that justify the abusive targeting of entire communities based on the unsubstantiated notion that Muslims in the U.S. are “radicalizing.”  The prosecutions that result from these practices are central to the government’s claim that the country faces a “homegrown threat” of terrorism, and have bolstered calls for the continued use of informants in Muslim communities.

These practices are violative of U.S. obligations to guarantee, without discrimination, the rights to: a fair trial, religion, expression, and opinion; and effective remedy. The report calls on the government to stop discriminating against Muslims in counterterrorism investigations; to hold hearings on the impacts that current law enforcement practices are having on Muslim communities; and to revise the guidelines that currently govern FBI and NYPD activities and allow for such abusive practices to go unchecked.

Both reports raise serious concerns about the ways in which the U.S. government is marking Muslims and Muslim communities as particularly dangerous.  These practices have taken profound tolls on our communities.  The need to remember, and to remain vigilant, remains.

Learn. Share. Act. Go to restorefairness.org.

 

Racial profiling: Degrading, unconstitutinal and ineffective

From the Restore Fairness blog-

Observations by Restore Fairness’ Zebunnisa Burki:

Have you ever been told that you don’t look like an American? Have you ever been stopped and searched by police just for driving around in a neighborhood? Or felt discriminated at airports? I have. It might be difficult for most people to know what its like to feel singled out. But this is what a lot of people of African-American, Hispanic, Arab and Asian and South Asian descent face when going about their lives in the US.

Using this as the premise, Breakthrough partnered with Rights Working Group, Network of Arab-American Professionals (NAAP) and Center for Human Rights and Global Justice (CHRGJ) on Tuesday, December 7th, at the NYU School of Law, for a screening of two documentaries: Face the Truth, produced by Breakthrough and the Rights Working Group, and Americans on Hold: Profiling, Prejudice and National Security, produced by CHRGJ. The screenings were part of the Rights Working Group’s “conversations on racial profiling” and were followed by an engaging Q&A session with filmmakers and activists, Madhuri Mohindar from Breakthrough, Nadine Wahab from the Rights Working Group, and Amna Akbar from CHRGJ, NYU.

Face the Truth, produced in September 2010, narrates the story of Karwan Abdul Kader, a Kurdish immigrant, who was stopped and stripped by law enforcement officials just because he was in the wrong neighborhood and looked “different.” Through his story and those of Juana Villegas and Lena Masri, Face the Truth serves as a reminder that even the land of opportunity doesn’t always support diversity. The film also makes an honest attempt to understand the divide between immigrants and local law enforcement by interviewing police officials and civil society activists.

Americans on Hold, the second documentary that screened that evening, follows a similar structure, narrating the personal stories of Anila Ali, a Pakistani immigrant community organizer and Zuhair Mahd, a visually challenged Jordanian immigrant. The film’s focus is immigration, citizenship and race in the US, especially when looked at in light of recent counter terrorism legislation and policies.

As is well-documented, post 9/11 America saw an increase in racial profiling against people of Middle Eastern and South Asian descent, mostly due to new counter-terrorism measures. These include the now infamous FBI name check and National Security Entry-Exit Registration System, better known as NSEERS, which allows authorities to target individuals from 25 specific countries, of which almost all are Muslim.

According to Nadine Wahab, domestic law in the US is often ambiguous on racial profiling. Policies such as NSEERS, along with the TSA’s recently tightened “counter terrorism” measures; Section 287(g) of the Immigration and Nationality Act (INA), the Secure Communities program, and the general atmosphere of racial bias by law enforcement, have led to extreme distrust among immigrant and other vulnerable/minority communities.

What is most disturbing is the encouragement and support for policies such as full body scans and pat downs by TSA, especially by mainstream media, politicians and political movements. A good example would be an editorial in the Wall Street Journal that does its best to highlight the “benefits” of TSA’s stricter security measures.

The films (and the discussion after) served as a reminder that racial profiling and bias are not the lot of any one community. This is an issue that continues to affect different communities. Black/Latino/Arab/South Asian/Asian- these targeted communities all face the same discrimination but often remain cocooned in their own niche spaces, finding it difficult to reach out to each other.

In the Q&A that followed the screening, there was a strong consensus on the need for all targeted communities to stand united and work for legislation such as End Racial Profiling Act (ERPA) and the DREAM Act. To do this, it is important to look at the “war on terror”, and the “war on drugs” through the intersectional lenses of race and class. Linda Sarsour of AACP rightly pointed out that immigrant communities that were most affected were those who were also financially less well off than others. Is the race issue then also an issue of class?

During the conversations/dialogue, there was an almost palpable sense of empowerment engendered as a result of sharing stories of racial injustice, further highlighting the need for our different communities to work together on the many unresolved issues related to immigrants’ rights and racial bias. Issues such as stop and frisk policies, class, race and national legislation dominated the discussion.

The audience, representing a number of different racial backgrounds, did not hesitate from commenting, sharing personal stories, or asking questions. The most interesting part of the evening was the personal accounts of racial profiling shared by a number of audience members. From stories of stop and frisk by police to informants tracking down and interrogating Muslim men in mosques to horrifying stories of entrapment by the FBI, the cathartic energy of the stories became apparent as time went by.

As someone who is used to the natural fear that one feels traveling in and out of the US, to me, the evening was an exercise in building confidence and hope. To see people with Hispanic, Arab Muslim, African American, and South Asian backgrounds coming together and discussing ways to collaborate on immigration and race issues with a unified voice, is an encouraging sign. It felt like the beginning of an understanding that racial prejudice and bias touches more than one community, nationality and ethnicity—the beginning of something better.

Learn. Share. Act. Go to restorefairness.org

 

 

 

Gitmo Guilty Plea Is A Sad Day for U.S. Rule of Law

This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.

Omar Khadr is the 24-year-old Canadian who's spent a third of his life in U.S. custody without trial after being accused of helping his father's al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.

But as he entered his guilty plea this morning -- after the government agreed he'd serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada -- it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him - including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.

That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr's statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we'll never know. (Khadr was shot multiple times and severely wounded in the firefight, which left him blind in one eye; he still has shrapnel in the other.)

Khadr's sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it's 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer's widow about her loss. Khadr's lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.

But all of this is hardly a vindication of the U.S. military commission system. After the plea was entered this morning, chief prosecutor Captain John Murphy told reporters that Khadr "stands convicted of being a murderer and also being an Al Qaeda terrorist" based on "his own words."

To be sure, Judge Parrish took pains today to ask Khadr if he was entering his guilty plea knowingly, and fully understanding the consequences. Khadr nodded and quietly answered "yes." But in truth, he had little choice. If Khadr had gone to trial, he faced a potential life sentence from a military jury, who would hear how he "confessed" to the crimes in interrogation. He could have faced many more years in prison. What's more, the U.S. maintains the right to indefinitely detain him even if he was found not guilty. Ironically, all but one of the other four detainees found guilty in military commissions have gone home, while dozens of remaining Guantanamo detainees who have never been charged with a crime continue to languish.

For Khadr, then, today's guilty plea was probably the right choice. His Canadian lawyers are likely to challenge his sentence as unlawful as soon as he's transferred to Canada. (The "diplomatic notes" reached between the U.S. and Canadian governments that will likely allow his transfer after a year in U.S. custody are still secret but will be released with the plea agreement after the commission members recommend their sentence.)

For the U.S. government, the guilty plea was a way to save face. After all, the Obama administration knew that it was a political embarrassment for its first military commission trial to be of a child soldier - a contradiction of its obligations under international law to rehabilitate child soldiers rather than punish them. The administration also knew that the charges against Khadr were all legally dubious - invalid under international law and a violation of the ex post facto clause of the U.S. Constitution. Khadr's guilty plea allows them to rack up another "win" for the military commissions, pushing the total to a whopping five convictions in the last eight years. By contrast, U.S. civilian federal courts have convicted more than 400 terrorists in that same time period. This doesn't exactly tip the balance.

Still, no matter how you look at it, this plea makes a troubling statement about the United States' respect for the rule of law. Although as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment, a dark cloud continues to shadow this case. That cloud will continue to conceal the truth about Omar Khadr's treatment at the hands of his U.S. interrogators; and it will ensure that the validity of his conviction, and the integrity of the military commissions themselves, remain in doubt.

 

 

Critics of Ghailani Trial Have Little Faith in U.S. Law

On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.

Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.

In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.

The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.

Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.

"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?

Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.

Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.

If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.

Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.

Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.

 

 

Critics of Ghailani Trial Have Little Faith in U.S. Law

On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.

Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.

In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.

The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.

Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.

"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?

Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.

Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.

If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.

Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.

Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.

 

 

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