Justice for wrongfully prosecuted Muslims -The Petition
President Barack Obama
The White House
1600 Pennsylvania Ave. N.W
Washington, D.C. 20500
Attorney General Eric Holder
Department of Justice
950 Pennsylvania Ave. N.W.
Washington, D.C. 20530-4371
Dear President Obama and Attorney General Holder:
This is the seventh in a series of letters to you urging that you restore the rule of law in America and release innocent people, mostly Muslims, who were illegally targeted and convicted following 9/11. In our first letter to you on February 16, 2009, we requested a review of all the cases in which defendants were convicted under a program referred to by the government as “preemptive prosecution”––that is, prosecuting people before they commit a crime based on suspicions that they might commit a crime in the future. In our second letter to you on April 4, 2009, we asked for a review of certain specific cases of preemptive prosecution that we believe resulted in unjust convictions or detentions. In our third letter on May 21, 2009, we requested that the Justice Department cease various practices that were illegal and that often resulted in unjust convictions and incarcerations, such as the use of agents provocateur, secret detention of suspects, solitary confinement, special Muslim prisons, and the invocation of the State Secrets Doctrine to block consideration of illegal wiretapping and extraordinary rendition. In our fourth letter on July 8, 2009, we requested exoneration of innocent Muslims illegally entrapped by the use of agents provocateur. In our fifth letter on November 16, 2009, we requested exoneration for innocent Muslims engaged in charitable work whose assets were seized without due process and whose laudable activities were unjustly criminalized. In our sixth letter of March 8, 2010, we requested reform of the Material Support of Terrorism statutes, which criminalize innocent behavior and fail to give notice as to what activities might be illegal.
To date, we have received no meaningful response from you to any of the issues that we have raised. Moreover, the illegal practices that we objected to have continued. In this seventh letter, we want to examine why this is––that is to say, why have the Obama Administration and the Office of the Attorney General of the United States continued to act with the same illegal conduct that started under the Bush Administration?
One theory points to an incompetent, corrupted, and complicit Office of Professional Responsibility (OPR) within the Justice Department. The U.S. government, and especially the Department of Justice, cannot act in violation of the very laws it is supposed to enforce. The OPR acts within the Justice Department as a watchdog agency to ensure that lawyers working there act at all times within the law and the ethical guidelines of their profession, which require that they do justice rather than merely obtain convictions by any means possible. Thus Justice Department lawyers should not tolerate illegal wiretapping by the government, or permit agents provocateur to entrap innocent citizens, or shut down charities without due process of law, or fail to turn over to the defense exculpatory information, or permit other abuses of the law that they know will result in injustice or deny defendants a fair trial. Any Justice Department lawyer who permits such abuses should be disciplined by the OPR.
If the OPR fails to perform its watchdog function, then it is a signal to Justice Department lawyers that they can violate their professional responsibilities without fear of sanctions. For example, in U.S. v. Theodore F. Stevens, Alaska’s Senator Ted Stevens was prosecuted for and convicted of bribery. During the case, an FBI agent filed a complaint that the prosecution lawyers had failed to disclose exculpatory evidence, and the prosecution team voluntarily reported themselves to the OPR. The OPR repeatedly told the trial judge that it would conduct an investigation of the allegations and that the trial judge did not have to inquire further. After the conviction, a new team of Justice Department lawyers was appointed, and reported that the original prosecution team had indeed suppressed numerous memos exculpatory to the defense that were central to the issues of the case. As a result, the Justice Department on its own motion moved to dismiss the charges, and the trial judge, Hon. Emmet Sullivan, on April 7, 2009 granted the motion and referred the conduct of the six original members of the prosecution trial team to a special prosecutor.
At the dismissal hearing six months after the matter was first reported to the Justice Department’s OPR, Judge Sullivan stated that he had never received any reply or comment from the OPR about its investigation. He described this as “shocking.” The implication was that the lack of ethics in the Justice Department went well beyond the original Stevens trial team, and included essentially a cover-up in the OPR; the original trial team apparently had reported themselves to the OPR so that the office’s “investigation” would foreclose other investigations, and the prosecutor’s misconduct could be covered up. Why has the OPR never issued a report on the serious misconduct in the Stevens case?
As yet another example, under the Bush Administration three Justice Department lawyers, John Yoo, Steven Bradbury, and Jay Bybee, prepared unprofessional memoranda authorizing torture, and based on these memoranda a whole procedure of institutionalized torture was undertaken by the United States government in clear violation of American law and treaty obligations. The memoranda were so wrong and unprofessional that they were withdrawn in 2004 by the Office of Legal Counsel.
As soon as the secrecy that shrouded the memos was withdrawn, complaints were filed with the OPR against their authors. A report by the OPR was promised at the beginning of 2009, and it was believed that the OPR had found serious misconduct by the three lawyers. Then the release of the report was repeatedly delayed until February 2010, when Newsweek reported that the OPR had cleared the three lawyers of any misconduct, finding only “poor judgment.” In short, the OPR has apparently reverted to its traditional role of covering up misconduct. (See “A Slap on the Wrist” by Isikoff and Klaidman, Newsweek, February 8, 2010, p. 10).
The whitewash by the OPR completely misses the point. The problem was not poor legal judgment by lawyers trying to determine what the law required. The law clearly held that torture was illegal, and the Bush Administration wanted to find a lawyer who would write a memo saying torture was legal. That is why the administration classified the memos as soon as they were written. The classification was not intended to prevent torture information from falling into the hands of our alleged enemies––the prisoners knew that they were being tortured. It was to prevent the memos from being examined by the legal community because the administration knew that the memos were frauds and would never stand up to legal scrutiny.
The effect of the OPR report will be devastating if it finds no misconduct. In the future, whenever a president or senior government official wants to do something that is clearly illegal, he or she will only have to find a subordinate lawyer in the Department of Justice (who can be fired if he or she does not comply) to write a memorandum declaring legal what was previously illegal. Justice Department lawyers will no longer have to be faithful to the law, but only to the wishes of the politicians who appointed them.
Illegal conduct by the Department of Justice, and the failure of the OPR to act as a watchdog, is certainly nothing new. In 1998, the Pittsburgh Post-Gazette ran a lengthy exposé of the extent to which the Department of Justice engaged in illegal conduct and the failure of the OPR to provide any oversight (“Win at All Costs: Out of Control” by Bill Moushey). The article states:
A two-year investigation by the Post-Gazette found that powerful new federal laws, designed to snare terrorists, drug smugglers and pornographers are being aimed at business owners, engineers and petty criminals. Whether suspects are guilty has come to matter less than making sure they are indicted, or convicted, or, more likely, coerced into pleading guilty. Promises of lenient sentences and huge government checks encourage criminals to lie on the witness stand. Prosecutors routinely withhold evidence that might help prove a defendant innocent…Those who practice this misconduct are almost never penalized or disciplined. “It’s a result-oriented process today, fairness be damned,” said Robert Merkle, whom President Ronald Reagan appointed U.S. Attorney… (November 22, 1998)
By failing to discipline lawyers in the Department of Justice who engage in misconduct, the OPR sends the signal that it will tolerate and even cover up misconduct when it occurs. This is especially true today of prosecutions against Muslims. Illegal wiretapping, use of agents provocateur, entrapment, preemptive prosecution, failure to turn over exculpatory information, and even outright frame-ups are apparently tolerated by the OPR if they involve Muslims. Prosecutors understand that the OPR will not discipline such misconduct and act accordingly.
There are almost weekly reminders of the extent to which the Justice Department has become corrupted, failed to follow the law, and is engaged in covering up its own criminal conduct and that of others.
On November 5, 2009, it was reported that twenty-two CIA agents were convicted in absentia in Italy for kidnapping an Italian citizen in Italy and illegally rendering him to Egypt, where he was tortured. It was widely reported that the CIA agents will never be sentenced for their crimes because they live in America, and that the Justice Department will not prosecute them or turn them over to the Italians, notwithstanding that their crimes––kidnapping and extraordinary rendition––are crimes under American laws, and were done by U.S. government agents. (See “Criminal Convictions of 22 CIA Agents in Italy” by Glenn Greenwald, Salon, November 5, 2009; “Italy Got It Right: CIA Renditions Are Wrong,” Los Angeles Times editorial, November 6, 2009).
On December 5, 2009, it was reported that a federal judge dismissed fraud charges against two business executives in U.S. v. Henry Samueli and U.S. v. William J. Ruehle because of prosecutorial misconduct in tampering with critical defense witnesses and attempting to intimidate the witnesses into not testifying for the defense. (See “Charges Dismissed Against 2 Broadcom Executives,” New York Times, December 5, 2009).
On January 3, 2010, it was reported that a federal judge dismissed criminal charges against four Blackwater contractors who had murdered civilians in Iraq, on the grounds that the government’s case had been based almost entirely on statements of the defendants for which the defendants had been given immunity from prosecution. Because the prosecution’s case so obviously conflicted with the immunity granted to the defendant’s statements, it was widely assumed that the government deliberately presented a legally deficient case in order to have the charges dismissed for political reasons. (See “Another DOJ Blow––Charges Dismissed Against Blackwater Employees” by Amir Efrati, Wall Street Journal, January 3, 2010).
On January 16, 2010, it was reported that 22 million e-mails that the Bush Administration claimed did not exist had just been found, although conditions attached to their “discovery” required them to be archived for years before anyone could examine them to determine if they indicated crimes had been committed. (See “22 Million Bush-Era E-mails Found” by Steven Dubord, New American). How strange that the clandestine services are able to monitor the e-mails of well over 22 million Americans daily, and yet were unable for years to find 22 million e-mails missing from the White House, some of which had been subpoenaed in connection with a criminal probe. How even stranger that the Justice Department would agree to let the e-mails be archived for years before they would be available for criminal investigations.
On January, 18, 2010, it was reported that the Justice Department deliberately covered up the murder of three prisoners at Guantanamo. Officially, the three inmates at Guantanamo all committed suicide on the same night in 2006 by hanging themselves in their cells, in open view but supposedly unnoticed, while bound hand and foot. Later a guard made a statement indicating that the three detainees were suffocated to death under torture. The Department of Justice conspired to cover up the murders by conducting an “investigation” of the guard’s statement and the numerous inconsistencies and impossibilities in the official version of the incident, and then taking no further action. (See “The Guantanamo Suicides: A Camp Delta Sergeant Blows the Whistle” by Scott Horton, Harper’s).
On January 21, 2010, it was reported that the FBI, an agency of the Justice Department, routinely broke wiretapping laws by manufacturing fake emergencies in order to bypass the need to obtain warrants. (See “FBI, Telecom Teamed To Break Wiretap Laws” by Ryan Single, Wired; “Report Confirms FBI Misused Authority To Obtain Phone Records” by Kurt Opsahl, Electronic Frontier Foundation).
On January 27, 2010, it was reported that torture continues under the Obama Administration, relatively unchanged since the Bush Administration except that certain techniques like waterboarding have been forbidden. Perhaps this is why the Department of Justice changed the recommendation of the OPR as to finding misconduct for the three lawyers responsible for authorizing torture in the first place. (See “Torture Never Stopped Under Obama” by Shamus Cooke, Global Research).
On January 30, 2010, it was reported that an autopsy of Imam Luqman Ameen Abdullah in Detroit showed that in October 2009, during an FBI sting, the imam was lured into an FBI-run warehouse, where he was shot twenty-one times by FBI agents who then handcuffed him as he bled to death. Various civil rights organizations and Rep. John Conyers have called on the Department of Justice to investigate the shooting and also the use of FBI agents provocateur in mosques. (See “Autopsy in Imam Shooting To Be Released Monday,” Detroit News, January 29, 2010; “Conyers: Review FBI Case on Imam,” Detroit Free Press, January 14, 2010).
This is an extraordinary number of stories in a short period of time questioning the competence and integrity of the Department of Justice on extremely important issues of fundamental rights. The response of the Department of Justice has been largely silence and avoidance. When justice is made subservient to political consideration and 9/11 hysteria, we cease to be a nation of laws and become a tyranny. Is the Justice Department refusing to enforce the law impartially because of political pressure, incompetence, and a failed Office of Professional Responsibility––or is there another, more sinister explanation?
Total Information Awareness (TIA)
In 2003, a proposal was brought before Congress to fund a data mining project called TIA (Total Information Awareness) that would prepare a vast data bank of information on essentially every citizen in the country and much of the world, and then mine it for patterns of possible criminal activity. Congress voted not to fund such a program, which would clearly violate the Constitution and Bill of Rights. However, much of this database is readily available, and mining is easily done by clandestine agencies with secret budgets, such as the CIA. In 2005, a coalition of civil rights groups, including the ACLU and 185 co-sponsoring groups (The International Campaign Against Mass Surveillance/ICAMS), issued a report entitled The Emergence of a Global Infrastructure for Mass Registration and Surveillance (email@example.com), suggesting that, in fact, this is just what has been done.
The ICAMS report noted that travel information (passports, flight arrangements, visa, entry permits, etc.) and financial transfer information (banks, credit cards) is increasingly available in electronic databases worldwide. E-mail and phone conversations can be secretly monitored and the data saved and analyzed. Corporations keep databases of information. Together, all this information forms a vast database ready for mining. The U.S. government already has mining programs, such as Carnivore, that can sift through the data to find possible patterns of criminal activity. Governments inevitably will try to use this information to predict criminal activity before it occurs and thus “preempt” crimes by bringing “preemptive prosecutions,” often at the expense of the individual’s civil rights. The report states:
A major paradigm shift is occurring. Governments are no longer focused on law enforcement and intelligence-gathering about specific risks. They have embarked on a much more ambitious and dangerous enterprise: the elimination of risk. In a “risk assessment” system, many of the ordinary legal protections that are fundamental to democratic societies––due process, the presumption of innocence, rights against unreasonable search and seizure and the interception of personal communications, and rights against arbitrary detention and punishment––go out the window. For the risk screeners, guilt or innocence is beside the point. What matters is the avoidance of risk from the point of view of the state, separating the risky from the safe on the basis of the best information available from all sources. (p. 2)
The report describes the signposts along the way to a “mass surveillance” society of the kind described in George Orwell’s 1984, and states in part:
The ninth signpost is what is happening to democratic societies––in terms of the erosion of democratic processes, centuries-old protections in criminal law, freedom of speech and association, and the rule of law itself as governments pursue the agenda for global mass registration and surveillance.
The tenth signpost, and perhaps the most ominous of all, is the collective loss of moral compass societies are exhibiting as they begin to accept inhumane and extraordinary practices of social control. Countries that hold themselves out as defenders of human rights are engaging directly in extra-legal rendition, torture and extra-judicial killing––as well as contracting out these services to brutal regimes, which are being rewarded for their contributions. (p. 4)
The report notes that using computer programs to search for patterns of criminal activity is highly inaccurate, both because the programs are inadequate to the task and because much of the information collected is inaccurate or even malicious. (How, for example, does a computer program evaluate whether one subject is “associated” with another, or whether a source of information has lied?) Since the data is “secret” and “classified,” there is no way for the defendant to review the material and correct the mistakes. Neither computer programs nor governments can accurately predict future criminal activity, and any justice system that tries to do so will inevitably end up convicting substantial numbers of innocent people. Yet this appears to be what the U.S. government is presently attempting to do, especially with the Muslim community.
Is this why you have ignored our earlier letters and continued practices that violate the law and the Bill of Rights? In a period of a paradigm shift, when traditional law enforcement seems old-fashioned and “risk assessment” seems to be the way to prevent future crime, do you view the Bill of Rights as a “quaint” document that is out of date and irrelevant? When the American government regularly compiles detailed files on the travel, finances, and intimate writings of all its citizens and much of the world, of what relevance is the prohibition against “unreasonable search and seizure” contained in the Fourth Amendment? When the American government routinely mines this database for patterns of potential criminal conduct with which to preemptively prosecute people before they commit a crime, of what relevance is the requirement of “probable cause” contained in the Fourth Amendment? When the American government closes down charities based on “secret evidence” contained in the database, and will not disclose the secret evidence to justify its actions, of what relevance is the “due process” clause of the Fifth Amendment? When the American government designates someone for “preemptive prosecution” based on the person’s predicted potential to commit crimes in the future, rather than on crimes actually committed, of what relevance is the requirement of an “impartial trial” guaranteed by the Sixth Amendment? The trial is only pretextual anyway; the real crime is to be listed as “suspicious” or “dangerous” by a computer program.
When the Founding Fathers created the Bill of Rights, they knew exactly what they were doing. They had just passed through a revolution in which the British had labeled them as the eighteenth-century equivalent of terrorists. They wanted to make sure that nobody would be investigated, tried, and convicted by the immense power of the state unless there were substantial guarantees that all people would be treated equally and fairly, given due process, investigated only after probable cause, and kept secure in their personal property and writings. These concerns are not quaint or old-fashioned. They are as relevant today to the present war on Terror as they were to the Founding Fathers and the American Revolution. Indeed, the Bill of Rights was intended to apply in times of war as well as peace––the Constitution permits the writ of habeas corpus to be suspended during times of war, but there is no such limitation on the Bill of Rights.
In the end, it is simply easier to follow the law than to disregard it. It is easier to enforce the law equally than to throw away the moral compass and enforce only what the politicians and expediency demand. As president and attorney general, you have taken oaths to uphold the Constitution, including the Bill of Rights. We urge you to follow the law and give justice to the innocent Muslims who have been unfairly entrapped by a system of “risk assessment” rather than by their personal guilt.
26 Dinmore Road, Selkirk NY. 12158