Bad Judgment On Guantanamo

The high court rejected the appeals of seven Guantanamo Bay inmates. (Jacquelyn Martin / Associated Press / March 25, 2012)


The Supreme Court, in refusing to review a lower court's rulings limiting the rights of detainees, abdicates its responsibility.

June 12, 2012
Courtesy Of "The LA Times"

Four years ago, the Supreme Court did its duty as a guardian of the Constitution by ruling that Congress couldn't prevent inmates at Guantanamo Bay from filing petitions for habeas corpus, a venerable feature of Anglo-American law that allows prisoners to challenge their confinement in court.This week, the justices walked away from that responsibility by refusing to review lower court rulings that have narrowed the protections of its 2008 decision to the vanishing point.

In granting inmates a right to habeas in Boumediene vs. Bush, the court sternly corrected an overreaching executive and a compliant Congress. But on Monday it refused to engage in similar scrutiny of the U.S. Circuit Court of Appeals for the District of Columbia, which has adopted a scandalously cramped interpretation of Boumediene. Because the Obamaadministration has determined that more than 40 detainees are too dangerous to be tried even before military commissions, meaning that habeas is their only means of legal redress, the effect of the appeals court's hard line is to undermine even that last resort.

Especially deserving of review was a petition by Adnan Latif, a Yemeni who was captured near the border between Afghanistan and Pakistan in December 2001. Latif said he had traveled to Pakistan to seek medical treatment; the U.S. government insisted that he was a fleeing Taliban fighter.

A federal district judge ruled in Latif's favor, concluding that, because of possible transcription and other errors, a government report of an interview with him was "not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban." Overturning that finding, the D.C. Circuit ruled that the government's evidence was entitled to "a presumption of regularity" and that lower court judges should require that a detainee's "self-serving account must be credible — not just plausible." In her opinion, Circuit Judge Janice Rogers Brown (a former California Supreme Court justice) approvingly cited dissents in the Boumediene case and referred snidely to its impracticality and "airy suppositions."

More than three years after President Obama promised to close Guantanamo, the facility remains in operation, with a population of 169 (down from nearly 800). Beginning in 2004, the Supreme Court has ordered Congress and the presidency to provide due process to inmates, Americans and foreigners alike, yet progress toward that objective has been sluggish and grudging. The result is justice deferred for inmates and a continued embarrassment for the United States.

Dissenting in the Latif case, Judge David Tatel described the decision as an "assault on Boumediene." At the very least, the ruling called for a full-fledged review by the Supreme Court. Instead, the justices have abdicated their authority and devalued their own achievement.

The Gutted Writ: On Habeas Corpus

By Robert Perkinson
December 22, 2010
Courtesy Of "The Nation"

On a lazy afternoon in February 1961, Wilbert Rideau decided to rob a bank in Lake Charles, Louisiana. Rideau, a smart but impulsive eighth-grade dropout from a violent home, had counted on making a quick, clean getaway, just like the ones he'd seen in the movies, but his plans unraveled during the heist when a phone call to the bank revealed that the police were closing in. Rideau took three hostages, commandeered a car and, as darkness fell, got lost on the back roads outside town. At a bayou crossing the passengers bolted, and Rideau opened fire. Two survived and vanished into the night, but the third, a teller named Julia Ferguson, was wounded by the gunfire and then stabbed to death by Rideau with a hunting knife. A 19-year-old black man had killed a white woman. In no time, Rideau was under arrest.

Outside the jail, a mob formed. "Hang that nigger," a voice called out. But the officers held their man, confident that justice would be swift and severe. "It was a good little town back then," a deputy sheriff later explained to a reporter. "Ever'body did their job. The prosecutors, the law enforcement.... You didn't have to worry about lynching because they lynched 'em for you."

The trial, as Rideau recalls in his gripping memoir In the Place of Justice, was "merely a formality," played out by white attorneys before a white judge and an all-white jury. "I was the only black in sight, a fly in a bowl of milk," he writes. The place was Calcasieu Parish, at the height of the backlash against the civil rights movement, when Louisiana lawmakers had voted to close down the state's public schools rather than integrate them. Rideau was guilty of terrible crimes—armed robbery, kidnapping and homicide—but the district attorney stretched and suppressed evidence to prove premeditation, a necessary condition for a capital conviction. Julia Ferguson's stabbing wounds became an attempted beheading, an embellishment later undermined by pathology photographs. A meandering oral confession got replaced by a tidier version, written by an FBI agent, that detailed plans to murder every witness. Physical evidence from the crime scene disappeared. The verdict was certain: death.

When it reviewed the roughshod proceedings on appeal, the US Supreme Court assailed Calcasieu Parish's "kangaroo court" and reversed the conviction. But a second trial before another all-white jury in the same venue returned the same verdict. At that point the defendant would have run out of options were it not for an ancient legal instrument that dates back at least to the sixteenth century, and indirectly to the Magna Carta: habeas corpus. Literally an order to "have the body" of a detainee brought into court to assess the legality of his or her confinement, the writ of habeas corpus has long been celebrated in Anglo-American jurisprudence as "a fundamental safeguard against unlawful custody" and "a critical check on the executive." As the writ gained strength in the decades around England's Glorious Revolution, it helped to vanquish absolutism and lay the groundwork for the modern era's protections of individual rights. Architects of the early American Republic regarded habeas corpus as so indispensable that they enshrined it in the Constitution, before the Bill of Rights, and set an exceedingly high bar to its suspension, only "when in cases of rebellion or invasion the public safety may require it." Hailed by William Blackstone as a "stable bulwark of our liberties," the writ has figured prominently, if inconsistently, in protecting disfavored minorities and mitigating repression throughout the common-law world. In the legendary Somersett case of 1772, a habeas petition led to the abolition of slavery in England, though not yet its colonies. In 2004 the Supreme Court ruled in Hamdi v. Rumsfeldthat the Bush administration's indefinite detention of suspected terrorists who are US citizens without judicial review was constitutionally indefensible. Even during the "most challenging and uncertain moments," the majority held, "the Great Writ of habeas corpus" remains in force, allowing citizens, aliens and even designated enemy combatants to challenge involuntary confinement and demand "due process of law."

In Rideau's case, habeas corpus provided a second entry into federal court, which ordered yet another trial. Louisiana then sought and won a third death sentence, but the delays allowed Rideau to survive until 1972, when the Supreme Court, in Furman v. Georgia, vacated every capital conviction in the country. After Furman Rideau was resentenced to life imprisonment, and his court-appointed attorneys bid him farewell, saying they had done everything they could for him. Sent to Angola, a former slave plantation that by the 1970s was "the most violent prison in America," he was left to rot but instead built an extraordinary career. He started reading, then writing, and eventually became a respected, award-winning journalist from behind Angola's walls. Life magazine called him "the most rehabilitated prisoner in America," but partly because one of his former hostages lobbied hard for his perpetual confinement, his repeated appeals for clemency went nowhere.

That is, until habeas corpus again came to his rescue. A literary scholar named Linda LaBranche took an interest in his case and started poring over old jury selection records. She found incontrovertible evidence of racial discrimination in Rideau's trials, and through the flexible, open-ended provisions then permitted in federal habeas practice, she was able to help secure Rideau a fourth shot at justice in 2005. This time, ably represented by a team of pro bono attorneys, Rideau was convicted of manslaughter rather than premeditated murder. Having already been incarcerated for forty-four years, a period twenty-three years longer than the maximum sentence for manslaughter, Rideau went free. He now lives in Baton Rouge, where he has settled down with LaBranche and a brood of cats. "I'm only here today because of habeas corpus," he said in a recent interview. "It saved my life."

Rideau's commutation and ultimate release signal the enduring potency of habeas corpus, but also its practical impotence. What jurists have long called "the Great Writ of Liberty" did its work, but at an excruciating pace. That Rideau's case unfolded during a period of relative vitality in habeas jurisprudence makes his story all the more troubling. Since the 1990s, lawmakers have increasingly circumscribed the writ, imposing rigid time limits and erecting formidable barriers between state and federal courts. In today's legal climate, a defendant like Rideau would have almost no chance of returning to freedom or even escaping execution. Habeas is becoming "an illusory writ," says George Kendall, one of Rideau's lawyers and a habeas and death penalty expert. In the war on crime, the war on terror and the new war against undocumented immigration, the Great Writ is being gutted.

Paul Halliday's sweeping, scrupulously researched Habeas Corpus: From England to Empire examines the capacities and contradictions of this remarkable legal device. A historian at the University of Virginia and an occasional contributor to amicus briefs in noteworthy habeas cases, Halliday dismisses conventional paeans to the writ. Focusing less on landmark decisions than on thousands of quotidian cases from the sixteenth to the eighteenth century, recorded on parchment and bound with leather thongs, he pieces together an ambivalent story with unexpected origins. Rather than heralding habeas corpus as a "palladium of liberty," he shows how, over the course of centuries, habeas has extended state power as well as constricted it, facilitated empire as well as regulated its reach, and how, in periods of crisis and demagoguery, princes and parliamentarians have muffled the "sighs of prisoners" despite the venerable writ's promise to hear them.

In early modern England, the judiciary was not a separate branch of government but an extension of the sovereign's law, Halliday explains. Writs of habeas corpus, accordingly, functioned less to safeguard individual liberty—still an embryonic concept—than to regulate the conduct of jailers. Faced with a polyglot legal landscape in which myriad entities, from ecclesiastical courts to justices of the peace, had been granted the franchise of imprisonment, powerful jurists, especially on King's Bench, the common law court upon which the monarch theoretically sat, used habeas corpus to review the decisions of lesser magistrates in order to ensure that his majesty's subjects were lawfully detained. In this way, Halliday argues, enterprising judges close to the crown made themselves into a superior court and "put themselves at the heart of the state."

Acting in the name of the sovereign and asserting the authority to "monitor the work of all other jurisdictions," King's Bench (Queen's Bench when the monarch was a woman) deployed the writ in an extraordinary array of cases, reshaping it in the process. Impressed soldiers, asylum inmates, slaves and prisoners of war sought release through habeas proceedings, sometimes successfully. Long before the development of modern family law, women called on the writ to escape abusive husbands, though they had to convince the court that a man's violence exceeded "the lawful government of his wife." Forged in common law rather than by statute, writs of habeas corpus, in the hands of determined judges, could reach almost any detainee, held under any circumstances, located anywhere under British control.

In the turmoil of the seventeenth century, the judiciary went further. If habeas began as a "writ of the prerogative by which the king demands account for his subject," Halliday writes, the justices of King's Bench increasingly claimed the powers of sovereign prerogative "for their own use, thereby making themselves the sun that lit the heavens." As the crown was weakened, judges asserted their independence, with startling results. In the wake of revolution in the late 1680s—"a period of rampant fear," with war raging in Ireland and an invasion from Catholic France looming—King's Bench reviewed the records of 147 detainees charged with treason and other "wrongs against the state" and ordered "bailed or discharged 80 percent," at a time when the very survival of the government hung in the balance. What started as a means of consolidating power had become a check on the powerful.

This was the golden age of habeas corpus, Halliday contends. Although Whiggish histories have depicted the Great Writ as marching ever forward, spreading freedom as it goes, Halliday shows that by the late eighteenth century, when Enlightenment revolutions were breaking out on both sides of the Atlantic, habeas corpus was in retreat. The advancing force was empire. While in one sense the centralizing authority exercised through habeas review standardized and thus facilitated the imperial reach of British law, the writ's promise to apply the law uniformly inevitably faltered before the inequalities and injustices of colonialism. Habeas corpus "traveled the globe," Halliday observes, but "suspension followed, like a shadow."

During the American Revolution, Parliament suspended the writ and for the first time made distinctions between detainees charged with committing offenses at home and abroad, with the result that "hundreds of American sailors" captured at sea were denied habeas relief and held indefinitely "not as POWs, but as traitors or pirates." In South Asia, habeas corpus arrived with the East India Company, but Halliday shows how statutory limitations on habeas—a topic too often ignored in the literature, he claims—"put Indians beyond the bounds of subjecthood" and empowered colonial governors to define "criminal tribes" and imprison or deport whole groups without trial. In response to the Mau Mau rebellion of the 1950s, hundreds of thousands of Kenyans, including Barack Obama's paternal grandfather, were rounded up, tortured or placed in concentration camps without judicial review. Habeas corpus cast no light of liberty there.

Halliday focuses mainly on sixteenth- and seventeenth-century England, but his attention to the perennial disappointments of the writ and its invidious intersections with empire make for fascinating reading in the twenty-first-century United States. Although habeas corpus is embedded in the Constitution and has been suspended by Congress only once, during a case of genuine rebellion in 1863, it faced epic challenges in the wake of September 11, when the Bush administration asserted unprecedented powers to unilaterally declare people "enemy combatants" and detain them at will, indefinitely and without independent review of any kind. Halliday's book suggests that the White House had ample, if selective and legally dubious, precedent for its aggressive posture. In response to "detestable conspiracies," both real and imagined, various British governments had pioneered all manner of habeas circumventions: removing prisoners to other countries, holding them on ships and building special prison camps on remote islands, where, "surrounded by waves," detainees were kept "beyond law's gaze." When challenged by the courts, administrators had sought and often won legislation to strip noncitizens of legal protections, indemnify jailers "who had done the ugly work" or simply suspend habeas corpus altogether—an increasingly common practice as the British Empire, and resistance to it, grew. In defending rendition, enhanced interrogation and indefinite detention at Guantánamo, legal theorists in the Bush administration thus borrowed from repressive tactics developed in colonial Ireland, Jamaica and New Zealand—conquered places that allowed the British sun never to set but where the law was too often put to sleep.

Halliday posits that "the history of habeas corpus traces an ongoing tension between the logic of detention and the persistent judge." By 2004 it seemed the judge might again be gaining the upper hand. In three cases decided in June of that year, as images of prisoner degradation at Abu Ghraib spread around the world, the Supreme Court condemned the Bush administration's "unchecked system of detention" and breathed new life into habeas corpus. Narrow majorities ruled on a number of key issues: citizens and aliens alike retain their habeas rights, even if they are declared enemy combatants; the executive's war powers do not insulate it from judicial review; and writs of habeas corpus have the power to reach any jailer anywhere who is subject to US law, even at Guantánamo Bay, which is officially Cuban territory but has been controlled by the United States since the Spanish-American War. Rejecting the Bush administration's most expansive arguments, the justices noted that the founders, having suffered British despotism, regarded "unlimited power" as "especially hazardous to freemen." As Justice O'Connor famously commented, "A state of war is not a blank check for the President."

The Court's rulings marked another milestone in the history of the Great Writ, yet the aftermath bears out Halliday's clear-eyed approach. Following the advice of Justice Scalia, who accused his fellow justices of "judicial adventurism of the worst sort" (ironically, just the sort of adventurism that created habeas and sustained it over four centuries), Congress in 2005 stripped Guantánamo detainees of their habeas rights, reinforcing Halliday's contention that legislators can be as hostile to civil liberties as executives. In two subsequent cases, most categorically in Boumediene v. Bush (2008), the Court struck back, again rejecting President Bush's determination to "govern without legal constraint" and Congress's willingness to let him. The majority ruled that under the Constitution lawmakers have no right to suspend the writ selectively and that military tribunals, as set up by the Pentagon, provide no "adequate substitute" for impartial, adversarial judicial review. Sweeping in scope, the decisions nonetheless left the vast majority of detainees in legal limbo: still incarcerated, still awaiting their day in court. Almost a decade after its creation—despite constitutional censure and promises by President Obama to shut it down—the prison camp that Amnesty International has called "the gulag of our times" remains mostly insulated from the rule of law. On the page, habeas corpus may have triumphed over the Bush administration's war of fear, but on the ground the "logic of detention" continues to unfold.

This disjuncture between promise and practice is equally pronounced, if less discussed, in other areas of modern US law. In the realm of immigration enforcement, where federal detention has expanded most rapidly in recent years, similar tensions have developed between the judiciary and the political branches, and with similar results. In 2001 the Supreme Court held in INS v. St. Cyr that immigration detainees have habeas rights and that deportation hearings managed by the Justice Department, an executive agency, cannot be walled off from judicial review, as Clinton-era statutes tried to do. In 2005 Congress responded with the Real ID Act, which in addition to setting up the rudiments of a controversial national ID card system, included scarcely noticed provisions to paralyze the writ of habeas corpus in immigration cases without actually killing it. By imposing thirty-day federal filing deadlines and limiting the purview of the judiciary to questions of constitutional law rather than the factual record of individual cases, the statute preserved habeas in name but in effect made it unavailable to thousands of detainees each year. "The government has so chipped away at habeas in immigration cases as to make it an almost meaningless right," says Lee Gelernt, an ACLU attorney who is building a case to challenge the new law. He adds that an executive-only approach to immigration enforcement has continued under the Obama administration, which detained 380,000 individuals on immigration violations in 2009, almost none of whom are provided access to counsel or even an independent court hearing, much less habeas review.

In conventional criminal law, the United States is unique in using habeas corpus primarily as a postconviction remedy. Invoking the writ successfully has never been easy, as the case of Wilbert Rideau makes clear. Nevertheless, postconviction habeas developed into an important alternative to direct appeals and as a mechanism of equity relief, especially in death penalty and civil rights cases. During the divisive crime debates of the 1990s, however, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but the most capably represented and egregiously wronged criminal detainees. Extending legalistic restrictions already imposed by the Rehnquist Court, the law requires prisoners to exhaust all state remedies before turning to federal court, limits the ability of federal judges to question the decisions of trial courts and imposes various administrative burdens on petitioners, including strict deadlines for initial filings—all of which add up to insurmountable barriers for most inmates, who tend to be indigent, poorly educated and unrepresented by counsel. "AEDPA has been awful for criminal defendants," says Vanita Gupta, an ACLU attorney who under more forgiving state rules famously helped overturn a host of wrongful drug convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket restrictions have created a morass of litigation and severely curtailed the reach of the Great Writ." Even as America's prison population has swollen to an unparalleled size, a key conduit for release has thus been shut off, in effect rendering the country's first civil right an inaccessible right. As during the repressive ascendance of the British Empire, lawmakers in the United States have "bound the judge and muffled the prisoner's sighs."

Halliday's history of setbacks and shortcomings is indeed discomfiting. "Beginning with royal power" and ending with "detention of people on a scale that defies judiciousness," his book suggests that the "idea of habeas corpus"—that no person shall be detained except by due process of law—"has been more powerful outside of courtrooms than inside them." Yet his book is not without hope. Halliday shows how innovative and persistent judges turned an instrument of the king's prerogative into a "writ of majestic, even equitable, sweep" and managed, in some cases at least, to defend it against "a legislative onslaught on liberties of every kind." In thwarting the Bush administration's absolutist leanings, the Supreme Court has recently shown glimmerings of that same independence, but the results remain unclear. In the twenty-first century, habeas corpus can be as vital for the protection of individual liberties as it was in the seventeenth, but courageous judges—precisely the sort excoriated by Scalia—will have to make it so.

Israel Lobby’s Global Propaganda Manual

No matter how often the propagandists repeat their mantra, the truth is that a few resistance fighters from Hamas have lobbed ineffective rockets against a well-supplied army of Israel's state terrorists; and the borders they want to defend are on land stolen from the Palestinians

By Paul Balles.
First Published 2009-09-17,
Last Updated 2009-09-17 10:21:26
Courtesy Of Middle-East-Online

The not-so-hidden persuaders

More than 50 years ago, Vance Packard shook the commercial world with the publication of his book The Hidden Persuaders. It was, as the book jacket claims, "A revealing, often shocking explanation of new techniques of research and methods of persuasion.”

Packard revealed, "If people couldn't discriminate reasonably, marketers reasoned, they should be assisted in discriminating unreasonably, in some easy, warm, emotional way."

Much merchandizing success, according to Packard, "...hinged, to a large extent, upon successfully manipulating or coping with our guilt feelings, fears, anxieties, hostilities, loneliness feelings, inner tensions”.

Packard raised serious questions of morality related to the "people-manipulating activities of persuaders … and their ability to contact millions of us simultaneously", giving them "the power to do good or evil on a scale never before possible in a very short time".

Among the most evil of the hidden persuaders are the political propagandists. Their "evil" stems from the fact that they have a political agenda, which discriminates unreasonably and is designed to manipulate emotions.

The manipulative approach to politics is, of course, not a discovery of the 1950s, or even the 20th century. Napoleon Bonaparte set up a press bureau that he called his Bureau of Public Opinion. Its function was “to manufacture political trends to order”.

Just as Napoleon Bonaparte believed that "public opinion is a mysterious and invisible power, to which everything must yield", Niccolò Machiavelli, Italian author of The Prince, described the arts with which a ruling prince can maintain control of his realm.

In a document published by The Israel Project entitled “The Israel Project’s 2009 Global Language Dictionary”, Dr Frank Luntz unmasks a modern-day propaganda campaign that would have made Napoleon and Machiavelli proud. He writes:

There is NEVER, EVER, any justification for the deliberate slaughter of innocent women and children. NEVER. The primary Palestinian public relations goal is to demonstrate that the so-called “hopelessness of the oppressed Palestinians” is what causes them to go out and kill children. This must be challenged immediately, aggressively, and directly.

The emotional appeal to saving children works, but the appeal is based on two lies:

(1) that Palestinians generally (not only suicide bomber extremists) are the ones who kill children, while Israelis (not individual extremists, but Israel's armed forces) never slaughter Palestinian children.

(2) The second falsehood is that the Palestinians have a public relations goal that must be challenged when, in fact, the Palestinians have proven to be hopeless and goalless when it comes to public relations. Unlike Frank Luntz, the Palestinians have no effective PR voices. They can't even get their ambassador in the UK to speak out to the British public about Israel’s lies and propaganda.

Next, Luntz attempts to sound reasonable by speaking of acceptable disagreements about economics or politics against fundamental principles of civilized people. The evil allusion here is that the Palestinians are the uncivilized people who target Israeli children.

“We may disagree about politics and we may disagree about economics. But there is one fundamental principle that all peoples from all parts of the globe will agree on: civilized people do not target innocent women and children for death,” writes Luntz.

The entire passage, again appealing unreasonably to emotions, makes the pretence that Israel did not target innocent women and children for death with their murderous indiscriminate bombing and missile attacks on Gaza against a huge civilian population of women and children.

However, distorted propaganda about children isn't enough for Luntz. This is but one part of a page out of 114 pages devoted to this manual for distribution to thousands of propagandists for Israel.

Advancing only as far as page nine, the guided Israel promoters will find "Words that work" (sections that are actually throughout the book). Here's what Luntz has to say about Gaza:

Israel made painful sacrifices and took a risk to give peace a chance. They voluntarily removed over 9,000 settlers from Gaza and parts of the West Bank, abandoning homes, schools, businesses, and places of worship in the hopes of renewing the peace process.

How generous he makes the Israelis appear, when in fact the removal of Jewish settlers from Gaza had nothing to do with giving peace a chance. As the Israeli Yossi Alpher points out, removal of the settlers gave a demographic advantage to Israel. He says, "no longer are Jewish and Arab populations mixed there in a manner that points to a single binational state as the solution".

In other words, Ariel Sharon could close the borders, imprison Gazans, hoping they will simply be forced to leave by starvation, murder fishermen and initiate military operations whenever they're not involved in attacking Lebanon to the north, to slaughter more Hamas women and children.

Then Luntz adds more "Words that work" for the indoctrination of his readers – Israeli propagandists:

Despite making an overture for peace by withdrawing from Gaza, Israel continues to face terrorist attacks, including rocket attacks and drive-by shootings of innocent Israelis. Israel knows that for a lasting peace, they must be free from terrorism and live with defensible borders.

As mentioned earlier, withdrawal from Gaza had nothing to do with an "overture for peace". The rocket attacks have been a response to being locked into an open-air prison; and they're aimed at land stolen by Israel. The "drive-by shootings of innocent Israelis" are figments of Luntz's imagination.

The "free from terrorism and live with defensible borders" line is the overworked motto that twists the truth in the continuing belief that if repeated often enough it will be believed.

No matter how often the propagandists repeat this mantra, the truth is that a few resistance fighters from Hamas have lobbed ineffective rockets against a well-supplied army of Israel's state terrorists; and the borders they want to defend are on land stolen from the Palestinians.

One might wish that the training in how to spread Israeli propaganda would stop there. If the Palestinians were up to the task, they might counter the lies with what they know of the history and suffering of Palestinians under occupation. Unfortunately, those with the linguistic ability to cope with the Israeli propaganda machine worry about endangering themselves and their families by speaking the truth.

Those who can only speak Arabic fluently are often busy fighting tribal wars within (Gazans vs. the Palestinian Authority), and they can't compete with Israel's skilled English speakers or against the organized promotional efforts Israel makes with Americans and Europeans.

Making the task of exposing the lies and deceit exceptionally difficult, Luntz’s propaganda tract, which unravels advice about the “how-to” of Israeli propaganda for 114 pages, seems Herculean to say the least.

Luntz offers advice about things like "Americans want a team to cheer for. Let the public know GOOD things about Israel." He follows that with "Draw direct parallels between Israel and America – including the need to defend against terrorism."

He tells his readers to make salient comparisons between Israel and America: "The language of Israel is the language of America: 'democracy', 'freedom', 'security', and 'peace'".

Even while Israel is throwing Arabs out of their homes in East Jerusalem to make room for Jews, Luntz repeats the boast about how "Israel, America’s ally, is a democracy in the Middle East". If he reported the truth about the so-called democracy in Israel, he would reveal how it's really a bigoted apartheid state.

The book is full of charts showing just how effective Israel's propaganda campaign has been. Not only do Americans believe that Israel is America's closest ally in the Middle East, but that they both share the same values.

Another chart shows that 58 per cent of Americans believe that the US should support Israel, while only 9 per cent believe that they should support Palestinians. Even when coaching others in how to propagandize, Luntz couldn't resist the revealing boast about how effective their PR work has been.

The entire screed utilizes all the tricks available to a clever wordsmith: how to use rhetorical questions to silence others, how to pretend that you're sympathetic with the people but not their evil leaders, how to avoid making statements that produce negative reactions.

All of that came from the first of 18 chapters. Several other chapters, especially on “words that work”, talk about settlements, Israel's so-called right to self-defence, Hamas, and tackling a nuclear Iran will be taken up in coming exposures.

Paul J. Balles is a retired American university professor and freelance writer who has lived in the Middle East for many years. For more information, see pballes.com.

Judges Siding With Detainees

In Guantanamo Habeas Cases

By Carol Rosenberg | Miami Herald
Posted on Monday, September 7, 2009
Courtesy Of McClatchy Newspapers

WASHINGTON — In one federal courtroom last month, a defense lawyer argued that the U.S. military had coerced a false confession out of a 50-year-old Kuwaiti who has been at Guantanamo for seven years.

In another, a Maryland attorney proposed that his Pakistani client, being held as an alleged al Qaeda facilitator, be allowed to post bail and stay with family — in Brooklyn.

Congress returns Tuesday from its summer recess but there was no break for the judges at the U.S. District Court midway between The Capitol and The White House who have been busy plowing through more than 200 lawsuits brought by Guantanamo detainees.

And, if the first 36 cases suggest a trend, the court is hardly persuaded that the Pentagon has the "worst of the worst'' penned up at the base in southeast Cuba.

Fifteen months after the U.S. Supreme Court rebuked the Bush administration by ruling that Guantanamo captives can sue for their freedom, civilian judges have ordered the release of 29 detainees and sided with the Defense Department only seven times.

Those ordered freed include four Muslim men from China, ethnic Uighurs now working as groundskeepers at a golf course in Bermuda; a young Afghan who went home last month after growing into adulthood behind the razor wire at Camp Delta; and an Algerian now living in an apartment with his wife and daughters in the south of France.

The seven men whose habeas-corpus petitions for release were denied include a one-legged Yemeni fighter captured in 2001, a Taliban cook, and an Algerian who allegedly helped jihadists reach Afghanistan.

"I think the number of difficult questions presented by the Guantanamo cases is unprecedented in our court,'' Chief Judge Royce Lamberth recently said. "In our court, mostly settled law applies. It makes it interesting. But it really is time-consuming because of the need to proceed carefully'' and decide "precedents for future wars as well as this war.''

Lamberth said he and his 13 fellow judges are engaged in a balancing act: Developing definitions and procedures to judge which detentions are lawful while trying to quickly hear the cases of detainees who were denied civilian-court review for seven years until the Supreme Court ruling.

Pro bono defense lawyer David Remes, once a corporate attorney who worked on tobacco, oil and IBM cases, calls Guantánamo case work routine ``nuts-and-bolts litigation'' that requires interviewing clients, combing through paperwork and filing and arguing motions -- a characterization government attorneys dispute.

Justice Department spokesman Dean Boyd said its Civil Division has assigned 50 lawyers to defend the Defense Department detentions.

"The Justice Department's habeas team has been producing and continues to produce an extraordinary volume of information to attorneys for Guantanamo Bay detainees in complying with discovery requests,'' Boyd said. "As part of this process, the Defense Department and the intelligence community have processed thousands of individual documents containing tens of thousands of pages for declassification in connection with the cases.''

Before they ever hear cases, the judges are ordering the government to turn over intelligence, deciding how much hearsay to allow then sorting out the truth between the Pentagon's argument for continued detention and the detainee's case for release.

Logistically, it has put on a huge pile of work, not just the legal questions but the logistics of suddenly handling about 200 cases relying on classified evidence, says Lamberth. "We've never done it on this scale before,'' he said. "If a court has one at a time, that's unusual.''

To keep some judges' calendars clear, he said, he sent some non-detainee cases to federal judges in Maryland and West Virginia.

The Guantanamo cases are being heard in the same courthouse opposite the National Gallery of Art where a grand jury heard the sordid details of the Monica Lewinsky affair and Judge John Sirica sorted out the Watergate scandal.

So far, none of the cases of former CIA-held captives now at Guantanamo has had full-blown habeas hearings. Those cases are certain to be even more complex as intelligence agencies seek to shield clandestine interrogation techniques and sites from judicial scrutiny.

Sometimes, the U.S. defense lawyers who have volunteered their services have the captives testify in their own defense via secure video feed. Many have not, arguing it is the government's burden to defend the detention.

The recent opening arguments in the case of Fouad al Rabia v Barack Obama was a case in point.

Rabia listened over a sometimes-muted telephone line from Guantanamo while Justice Department attorney Sarah Maloney stood in the marble and wood-paneled court and defended Rabia's seven-year detention.

Military-intelligence agents concluded, she said, that the father of four with a master's degree from the Daytona Beach, Fla., campus of Embry Riddle Aeronautical University was a logistics and supply officer at the December 2001 battle for Tora Bora between U.S. Special Forces hunting Osama bin Laden and the al Qaeda founder's fanatical followers.

Defense attorney David Cynamon argued that the logistics officer was killed in the shock-and-awe assaults on Tora Bora in Afghanistan.

Rabia did "confess,'' Cynamon countered, adding that he told interrogators what they wanted to hear after a U.S. military program of relentless interrogation, isolation, misidentification and the misguided belief that mimicking his interrogators story was the way back to his wife and four kids in Kuwait.

Fouad would not testify. Instead, the lawyers would guide Judge Colleen Kollar-Kotelly through thousands of pages in the case, brought to court inside binders stamped SECRET in red to help her decide whether the Pentagon has the power to still hold him -- or to instruct President Obama's administration to arrange for his release. The judge has yet to rule.

Scholars trace the concept of a writ of habeas corpus to the time before the Magna Carta when Anglo-Saxon kings exercised an unchallenged power to banish a subject to the dungeon. In a classic U.S. habeas corpus ruling, a judge could order the captive brought before the court -- and set free on the spot.

That's difficult to do in the Guantánamo cases because none of the captives is a citizen. The detainees' release orders instruct the State Department to arrange diplomatic transfers from the Guantánamo prison camps.

The courts are also holding hearings as an Obama administration task force is deciding which of the men to let go as part of a White House mandate to close the prison camps by Jan. 22.

Some judges have put cases on hold until the task force decides; others are pressing ahead.

In January, Judge Richard Leon sided with the Pentagon's decision to detain Saudi-born Ghalib al Bihani, 29, as an enemy combatant. Taken to Guantanamo a week after the detention center opened , he had denied that he ever took part in al Qaeda basic weapons training, but admitted to working as a cook for the Taliban.

"As Napoleon himself was fond of pointing out: `An army marches on its stomach,' '' Leon wrote.

Seven months later, Judge Gladys Kessler ordered the release of Mohammed al Adahi, a 47-year-old Yemeni who admitted he went to a wedding party for his sister put on by Osama bin Laden in Afghanistan and also attended al Qaeda boot camp, but washed out.

Although 'sensational and compelling,'' she wrote in her 24-page ruling, it "does not constitute actual, reliable evidence that would justify the government's detention.''

Adahi remains in Cuba while diplomats seek a repatriation agreement with Yemen.

Lawyers liken these to "show-cause hearings,'' a criminal proceeding under the most unusual circumstances -- using seven-year-old files, some classified, gathered not for prosecution but intelligence efforts.

Two weeks ago, Judge Paul Friedman struggled aloud with the question of whether detainee Saifulla Paracha, 62, might post bail.

"That's one of the great frustrations that judges have,'' Friedman said. "They reach a decision, then do they have the power to release them into the United States or into Cuba?''

Government lawyers are still combing through Guantanamo documents to decide which his lawyers may see, and an actual merits hearing won't be held until next year.

Meantime, Maryland defense attorney Gaillard Hunt said, Paracha could be fitted with a tracking device on his ankle and move to a family home in Brooklyn, or await his hearing in Karachi, Pakistan.

In 2003, masked men seized Paracha as he was leaving the airport in Bangkok, Thailand, according to his petition for release. His captors then spirited him to Afghanistan, a technique now known as rendition, for a year of U.S. interrogation and detention before he was sent to Cuba in September 2004.

He has never been charged with a crime, nor has he ever claimed his American captors tortured him. He has a heart condition but refused a U.S. military plan to treat him with angioplasty.

Rather than rule immediately on bail, Friedman gave the government two months to start providing Paracha's lawyers with the paperwork -- and asked for a formal response on the bail question by Halloween.

More on this Story

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• Story | Judge orders Afghan teen home after years at Guantanamo
• Story | Judge rules U.S. detention of Kuwaiti at Guantanamo is legal
• Story | Detainee who won Guantanamo habeas case to go to France
• Story | Judge: U.S. hid witness's mental illness in Guantanamo cases