Thursday, January 8, 2009

A Final Insult to Aliens from Attorney General Michael B. Mukasey

For over two decades now the federal courts and the Board of Immigration Appeals, "the highest administrative body for interpreting and applying immigration laws," have reviewed deportation and "removal" proceedings under the not unreasonable assumption that aliens have a procedural due process right to effective assistance of counsel in litigating their right to remain in the USA when the Governments attempt to deport them. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

I suppose I shouldn't be surprised that Attorney General Michael B. Mukasey, who has trouble understanding that aliens have a due process right not to be tortured by U.S. Government officials in the name of "national security" (see below post), also has problems recognizing that aliens have other constitutional rights (or at least that the federal judiciary is the branch of our federal system that determines them). After all, this is the Bush Administration we're talking about.

Nonetheless, my disgust with our esteemed, outgoing Attorney General reached a new nadir this morning when I read that he has tried, with the stroke of a pen, to eliminate any constitutional right to effective assistance of counsel (and due process federal court review) in removal proceedings. The Attorney General's decision is there for all to see in his execrable opinion in Matter of Compean, 24 I&N Dec. 710 (A.G. 2009).

The American Immigration Legal Foundation has some choice words about this final insult to aliens in America. They warrant substantial quotation:
Late yesterday, in the waning hours of a departing Administration, Attorney General Michael Mukasey unraveled decades of legal precedent guaranteeing due process to people facing life-changing consequences—namely, deportation. With less than two weeks left in office, this Administration apparently could not resist the temptation to take one more stab at undermining fundamental Constitutional principles.

The American Immigration Law Foundation (AILF) condemns this latest and last-minute decision that is part of the Administration’s ongoing strategy to not only recede due process rights, but to thwart federal court oversight of immigration courts, which have been plagued with questions about the integrity of their decisions and allegations of political cronyism.

In a decision issued Wednesday, January 7, the Attorney General declared that henceforth, immigrants, asylum seekers, and all others in removal (deportation) proceedings do not have any right under statute or the Constitution to representation by a lawyer before they can be ordered deported. The Board of Immigration Appeals (BIA) and most federal courts have for decades operated under the premise that immigrants DO have such rights. The Attorney General has reversed many years of precedent and operation by simply declaring it so.

According to the Attorney General, because there is no legal or constitutional right to a lawyer, immigrants do not have the right to legal counsel and thus no right to complain or request a new hearing when their lawyer is incompetent or fraudulent. The Attorney General does attempt to ameliorate the harsh impact of his revolutionary action by allowing reopening of cases in certain highly extreme circumstances, but his declaration will wipe out the rights of all but a handful of people with one stroke of his pen.

“We are outraged by this action” said Nadine Wettstein, the Director of AILF’s Legal Action Center. “With this ruling, the Administration is attempting to undermine an immigrant’s right to a fair hearing on whether he should be thrown out of the country. It is yet another in a long line of midnight changes and an example of this Administration’s disregard for fundamental principles of due process of law. It is also part of an ongoing attempt to eviscerate the federal courts’ role in protecting against Constitutional abuses by the immigration agency. We strongly disagree with the Attorney General’s pronouncements and are confident that federal courts eventually will reject this action.” [My emphasis.]
Nacht und Nebel American style is the way I would describe it. Even in its last days this wretched, lawless Presidency can't end fast enough.

I strongly share AILF's, outrage, hope and conviction that this legal abomination will not survive judicial review. Better still, this rogue opinion should be immediately rescinded by Mukasey's successor.

Attorney General Michael Mukasey: Making Excuses to the Very End

I've never been impressed with Attorney General Michael B. Mukasey, the Bush Administration's replacement for disgraced former AG Alberto "Gonzo" Gonzales. Mukasey's pedigree as a retired federal judge was supposed to ensure a return of respectability and professionalism in a Department of Justice reeling from justified charges of political favoritism, illegal hiring and lapdog subservience to Dick Cheney's office on issues relating to the (il)legal treatment of detainees and otherwise: "What - on earth - business does the Office of the Vice President have in the internal workings of the Department of Justice with respect to criminal investigations, civil investigations, and ongoing matters?"

I had had some hopes of real reform from Mukasey until, during his Senate confirmation hearing, I observed his shameless waffling on whether waterboarding should be outlawed and as a torture method is illegal and unconstitutional. At that point it was clear to me that Muk was simply going to be a water carrier for the Bush Administration's illegal acts.

Sadly, Muk's subsequent stonewalling has amply borne out my concerns. As one commentator has archly observed, under Michael Mukasey "the Justice Department has behaved and continues to behave not like a law enforcement agency, but like a white-collar criminal who has been caught in some very dirty dealings and is eager to obstruct the course of justice."

Even on the way out the door Muk persists in claiming that the Bush Administration lawyers should be given a "context of the time" pass for issuing opinions on "harsh interrogation techniques" that were not simply "wrong," but both illegal and criminal.

Members of the bar should be clear in rejecting such expediency. It is precisely when the pressure to condone illegality is at its maximum that the lawyer must show courage and call a spade a spade, even at the risk of losing his career prospects or employment. To do otherwise is to debase ourselves as citizens whose license to practice law confers special responsibilities, not just to serve our clients, but the cause of justice itself.

Wednesday, December 31, 2008

A Memoir of WWII: The Pitcher and the Well, edited by J. D. McDonald

When I set this blog up I also decided to update my "Blogger" profile. In the "Favorite Books" section I paused before including a title named The Pitcher and the Well.

My hesitation wasn't due to diffidence about the book, which has to rank with Serenade to the Big Bird by Bert Stiles as perhaps the most literary and introspective writing by a serving Allied aviator in WWII. Instead, I was convinced the book would be so hard to find -- it's been out of print for decades -- that listing it would be like citing an obscure heroic saga only available in the original language. What would be the point?

I myself had read The Pitcher and the Well only once before, borrowing it from a USAF Base Library in the early 1960s during my military kid boyhood. I was spellbound, but never saw the book in print again.

About a year or so ago idle curiosity and the Internet caused me to Google the title, find the book for sale from an out-of-print bookseller, and wait for it via snail mail. This time I read it from the perspective of a man too old for military service, rather than a kid too young to be drafted. It was as good four decades on as it was the first time.

The book's title comes from a medieval warning against pushing one's luck too far: "So oft goeth the pitcher to the well, that at last it commeth broken home." I think its obscurity has a lot to do with the fact that its author came from New Zealand rather than America, and did not survive his harrowing combat missions as an RAF Bomber Command navigator in Wellington and Lancaster bombers. There's not much potential for wide publicity when the author comes from a small country, is long dead, and remains anonymous to boot.

Perhaps this will change a bit now because the book has apparently entered the public domain and someone had the good sense to scan and archive the complete work online, so that it is now available as a free pdf download.

The young men of the Allied bomber fleets in the RAF and USAAF who flew against Nazi Germany in WWII suffered the highest casualty rates of any Allied military branches in the conflict. If you have the slightest interest in learning first hand how these men lived and died, The Pitcher and the Well is a must read for you.

Monday, December 22, 2008

Cheney Fatigue Sets In, Big Time

You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!

M.P. Leo Amery to P.M. Nevil Chamberlain, May 7, 1940 debate in the British House of Commons
Maybe it's just me, but I think the Nation has just had its Norway Debate moment with Vice President Dick Cheney and his fascinating ideas about the source and scope of Executive Power in the Bush Presidency.

Cheney's stone-headed defense on Fox News Sunday of his "unitary executive" theories and their application by the Bush Administration--from torture to preemptive war in Iraq, to unilateral authority to blow up the World simply because the President possesses the "nuclear football," etc. etc. ad nausiam--was utterly beyond the pale. It's pure instinct on my part, but I have the sense that Cheney's bravura performance may finally have convinced most Americans that our Vice President really is a paranoid megalomaniac completely unhinged by shame at the fact that 9/11 occurred on his watch, and a man whose Captain Ahab-like fixation on revenge against "the terrorists" truly has run the ship-of-state on the rocks.

I should restate my bias up front. From the moment I heard media reports on 9/11 that Cheney was safe in an "undisclosed location," as if this was a major piece of reassuring news we should know about amidst all the horror and chaos of that terrible day, it flashed on me that we were dealing with a bizarre, hulking narcissist who had serious "Dr. Strangelove" tendencies.

So, it's inspiring for me to see:
  • columnists like Mike Lupica make the Dr. Strangelove connection and say "I'll be thrilled to see you go, Dick Cheney";
  • "lefties" like Josh Marshall hit the nail on the head by saying "The only mild consolation to be found in Vice President Cheney's latest round of anti-constitutional ridiculousness is the thought that we'll be rid of him in about a month";
  • and especially to see an eminent senior military professional like Col. Pat Lang be so disturbed by Cheney's "utter certitude" in "proclaiming to his followers the end of the rule of law in the United States" that "Everyone who loves this country as it has been, as the Framers intended it to be, should press for criminal indictments against Bush, Cheney, Rumsfeld et al."
Depart, I say, and let us have done with you. In the name of God, go!

Saturday, December 20, 2008

Torture & Asylum Law, or How I Became an Anti-Torture "Absolutist"

I have promised my readers--all two of them at this point--substantive posts on immigration issues. Consider this "war story" the first, and an explanation how I became such an absolutist on the torture issue.

An alien refugee in immigration court has three separate legal grounds to seek relief from "removal" (the current legal term for "deportation") due to persecution in the home country. They are:
  1. "Asylum" based on past persecution and/or reasonable fear of future persecution on account of a "protected ground" such as political opinion;
  2. "Withholding of Removal," based on proof that the alien faces a substantial risk (greater than 50%) of severe injury or death because of persecution on a protected ground if removed; and
  3. "Withholding under the Convention Against Torture" (CAT) formally known as the "United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment." The United States is a signatory to the Convention and is thus bound by this treaty because it is now part of American law.
CAT defines "torture" as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [My emphasis]
One files an asylum claim in immigration court using an I-589 Form, and in almost all I-589 cases the battle is over whether the alien is entitled to asylum (it is a discretionary remedy and normally has a one year filing deadline) or straight withholding of removal relief. Only rarely does the question whether particular mistreatment is "severe" enough to be considered "torture" become a real issue because the other forms of relief are broader and preferable to CAT. Still, every asylum advocate claims CAT as a last line of defense, even if proof of direct involvement in torture by a foreign government official is hard to find.

A new asylum case is referred to me by an NGO in New York. The case comes from Sri Lanka, the island nation south of India where the Sinhalese majority and Tamil minority have been been locked in a violent ethnic conflict for over 25 years. My client is a man in his 20s who writes a long polemic advocating partition, so that the Tamils can have their own nation-state on the northern half of the island.

The client's story is that he is arrested by uniformed state security forces and taken to a large hut in a remote area outside of town. There he is interrogated about his political beliefs, activities and associations, and is punished for writing his pamphlet. He is repeatedly threatened with summary execution by one of the uniformed men, who waves a pistol in his face. He is also repeatedly struck during a long interrogation in which the men curse at him for being a Tamil separatist.

That evening a rope is tied to the man's handcuffs, and the other end is thrown over a ceiling beam. The security men pull on the rope to hoist the man up, then tie it off so that he is left with his feet barely able to touch the ground. While he is in this position one of the security men urinates into a saucer, puts it to the man's lips, and tries to force him to drink.

The man is let go the next morning, but told to report to a government security office in a week's time. Instead, his family hires a smuggler to get him out of the country on false papers, and the smuggler gets him on a flight to New Jersey. At Newark Airport he claims asylum and is immediately cuffed hand and foot by our immigration service and transported to the Elizabeth Detention Center where he will be "detained" (jailed) until one of the two immigration judges permanently stationed at the facility hears and decides his case.

After a jail visit and initial client interview it's my job to assist him in preparing his I-589. It looks like there's a good CAT claim. There's evidence of government agent mistreatment and the purpose is both interrogation and punishment. The one open question is whether the mistreatment is bad enough to qualify under CAT as "severe pain or suffering, whether physical or mental."

My legal research causes my to conclude that the man's ordeal arguably meets the CAT tests for both physical and mental torture. Beatings and suspension qualify as physical torture, see Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001). The threat of imminent death meets the test for mental torture. 8 C.F.R. § 208.18.

There is an open question whether this one incident is sufficiently lengthy in duration or has resulted in "prolonged mental harm" severe enough to qualify as torture under CAT, but there's a case to be made here, without doubt, and I'd rather be on my side of the argument than the Government's.

As so ofter happens, we never reach the CAT issue at the final bearing before the immigration judge. The court denies asylum as a matter of discretion because it does not like the tenor of the client's writings, but it grants withholding of removal, and the question of relief under CAT falls by the wayside.

What doesn't fall by the wayside are my own questions about what our Government is doing to other "detainees" in Guantanimo, Abu Gharib and elsewhere. If I'm able to argue that what my client suffered at the hands of Sri Lankan security forces is torture, how can I pretend that the reports of what our miltary has done to suspected terrorists and insurgents isn't torture as well?

Why is being made to stand for eight hours, being subjected to "belly slaps," being threatened by dogs, being stripped naked and smeared with simulated "menstrual blood" over a prolonged period of time not torture?

I am not able to shake the conclusion that the actions reportedly done by our military, the so-called "harsh interrogation techniques," clearly meet the definition of torture under CAT and that any argument by Bush Administration lawyers to the contrary is pure sophistry. It just "blows me away" that the kinds of things foreign governments do to some of my alien clients, for which I am seeking the protection of U.S. law, are the same kinds of thing our Government is doing to aliens in its custody, while claiming that it's "legal."

Once this realization sinks in I find it impossible to avoid becoming an anti-torture absolutist. Our nation has no business engaging in any conduct that can be considered torture, regardless of motivation or cause. It's that simple, and the only position possible for a person who believes in morality and the rule of law in America.

Thursday, December 18, 2008

"A Sweeping Defense" of Torture

In today's Washington Times Dick Cheney gave an "exclusive interview" in which he offered what the newspaper describes as "a sweeping defense of the Bush administration's war on terrorism and its use of aggressive interrogation techniques," i.e., torture.

The Vice President's comments are noteworthy not for the substance of his "defense," but rather for the sheer 1984-like torture of language, logic and law that he uses to justify the actual torture committed by the Bush Administration on 9/11 detainees.

You don't need to take my word for it: read what "Angler" himself has to say about what he and other key members of the Bush Administration did in America's name:

On one of the most controversial issues of the Bush presidency, Mr. Cheney squarely addressed the question of whether morality, and not simply pragmatism, was considered when deciding how far to go in pressuring suspected terrorists to divulge coveted intelligence.

"In my mind, the foremost obligation we had from a moral or an ethical standpoint was to the oath of office we took when we were sworn in, on January 20 of 2001, to protect and defend against all enemies foreign and domestic. And that's what we've done," he said.

After the terrorist attacks of Sept. 11, 2001, which killed almost 3,000 people in New York, suburban Washington and Pennsylvania, Mr. Cheney said that he, the president and others "made the judgment ... that wasn't going to happen again on our watch."

"And I feel very good about what we did. I think it was the right thing to do. If I was faced with those circumstances again I'd do exactly the same thing," Mr. Cheney said.

"Was it torture? I don't believe it was torture," the vice president said. "We spent a great deal of time and effort getting legal advice, legal opinion out of the [Justice Department's] office of legal counsel.

"I thought the legal opinions that were rendered were sound. I thought the techniques were reasonable in terms of what [the CIA was] asking to be able to do. And I think it produced the desired result. I think it's directly responsible for the fact that we've been able to avoid or defeat further attacks against the homeland for 7 1/2 years."

There are at least four things hideously wrong in Cheney's justification of torture. Two I have commented on in prior posts: (1) the misconduct of Administration lawyers in providing "cover" for practices that before were clearly understood to be torture under the law; and (2) the lie, so amply documented in the Senate bipartisan report, that the impetus to commit torture came from the CIA rather than the White House.

What's new in Cheney's latest justification is (3) the sheer chutzpah in his claim that it would have been immoral for the Administration not to have committed torture ("Newspeak" 21st Century style) and (4) his shocking and grotesque misunderstanding of the oath of office he took as Vice President.

Let's look again at what Cheney says about the "oath" he took: "the foremost obligation we had from a moral or an ethical standpoint was to the oath of office we took when we were sworn in, on January 20 of 2001, to protect and defend against all enemies foreign and domestic."

Sadly, No. The oath that Cheney swore actually says something quite different:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God. [Emphasis added]
This is not a distinction without a difference. Our entire system of Government, the glue that holds American society together through thick and thin, is the bedrock principle that ours is "A government of laws, not men."

It is perhaps a minor irony that this phrase gained currency when coined by John Adams, who was to become our first Vice President. It is an unspeakable American tragedy that our latest Vice President has not the slightest idea what the the first one meant when he used these words.

UPDATE: A Different Times' Perspective.

No one should miss the "The Torture Report" editorial in the December 17, 2008 issue of The New York Times on the Senate bipartisan committee report, and what should be done about the wrongdoing it reveals. Not only does it highlight how the top officials of the Bush Administration "ignored warnings from lawyers in every branch of the armed forces that they were breaking the law," but it also points the way to what should be done if the incoming President does not appoint a prosecutor to pursue the guilty:
Mr. Obama should consider proposals * * * to appoint an independent panel to look into these and other egregious violations of the law. Like the 9/11 commission, it would examine in depth the decisions on prisoner treatment, as well as warrantless wiretapping, that eroded the rule of law and violated Americans’ most basic rights. Unless the nation and its leaders know precisely what went wrong in the last seven years, it will be impossible to fix it and make sure those terrible mistakes are not repeated.

Wednesday, December 17, 2008

Dick Cheney: Getting the "Requisite Opinions"

Dan Froomkin's "White House Watch" quotes a Cheney interview with Rush Limbaugh on December 16th, 2008:
Q. "But you've heard leaders, the incoming Congress saying that this policy has basically been torture and illegal wiretapping, and that they want to undo basically the central tenets of your anti-terrorist policy."

Cheney: "They're wrong. On the question of terrorist surveillance, this was always a policy to intercept communications between terrorists, or known terrorists, or so-called 'dirty numbers,' and folks inside the United States, to capture those international communications. It's worked. It's been successful. It's now embodied in the FISA statute that we passed last year, and that Barack Obama voted for, which I think was a good decision on his part. It's a very, very important capability. It is legal. It was legal from the very beginning. It is constitutional, and to claim that it isn't I think is just wrong.

"On the question of so-called 'torture,' we don't do torture, we never have. It's not something that this administration subscribes to. Again, we proceeded very cautiously; we checked, we had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross. The professionals involved in that program were very, very cautious, very careful, wouldn't do anything without making certain it was authorized and that it was legal. And any suggestion to the contrary is just wrong.

"Did it produce the desired results? I think it did. I think, for example, Khalid Sheikh Mohammed, who was the number three man in al Qaeda, the man who planned the attacks of 9/11, provided us with a wealth of information. There was a period of time there, three or fours years ago, when about half of everything we knew about al Qaeda came from that one source.

"So it's been a remarkably successful effort. I think the results speak for themselves. And I think those who allege that we've been involved in torture, or that somehow we violated the Constitution or laws with the Terrorist Surveillance Program, simply don't know what they're talking about."

Q. "Did you authorize the tactics that were used against Khalid Sheikh Mohammed?"

Cheney: "I was aware of the program certainly, and involved in helping get the process cleared, as the agency, in effect, came in and wanted to know what they could and couldn't do. And they talked to me, as well as others, to explain what they wanted to do, and I supported it."

Q. "In hindsight, do you think any of those tactics that were used against Khalid Sheikh Mohammed and others went too far?"

Cheney: "I don't." [My emphasis]

As Froomkin notes, "There's so much wrong here, it's hard to know where to begin. First of all, waterboarding is almost universally considered torture. It's basically drowning -- and it's been a staple of torturers since the Spanish Inquisition. Second, neither Cheney nor anyone else has provided evidence that torture or illegal surveillance elicited information that saved American lives, or that it couldn't have been elicited otherwise."

What's evident among all the other outrages in Cheney's justifications is the perversion of law that makes them possible. The so-called "requisite opinions" did not erect a "bright line" that could not be crossed, but instead established torture and lawbreaking as Administration policy.

What the Nation needed was Government lawyers with the courage to stand up to a Dr. Strangelove-like lunatic and say "No." Instead, to America's enduring shame, what we got were eager torture enabelers or legal lapdogs.

UPDATE: It's hard to overlook Cheney's answer to his own rhetorical question: "Did it produce the desired results? I think it did." Yeah, right.