Category Archives: Civil Liberties

F.B.I. Scrutinizes Antiwar Rallies. It's of course legal for the FBI to gather intelligence on groups it thinks are dangerous. On the evidence to date, however, whether that assessment is correct in the case of anti-Iraq-war rallies is dubious. And the FBI's activities vividly awaken memories of the FBI's of civil rights violations the last time a paranoid Republican administration was in the White House and demonstrators were massing to protest a war.

Meanwhile, someone please explain to me how the FBI's large-scale, organized campaign of assembling dossiers on the polticial beliefs of citizens exercising their constitutional rights to demonstrate peacefully — even the FBI admits that it “possesses no information indicating that violent or terrorist activities are being planned as part of these protests” and that “most protests are peaceful events.” — is not intimidation but, “demonstrators' 'innovative strategies,' like the videotaping of arrests” is “'intimidation' against the police”?

Think of that — the police are being intimidated by the threat that the demonstrators' accounts might be corroberated by a video camera. Offhand, I think I approve of the sort of intimdation that records exactly what is happening and leaves no room for testilying.

Here's some general information relating to the Arar case, including a timeline and a discussion of one of the relevant limits on the use of torture. The last two links suggest that it was the Canadians who fingered Arar to the US authorities, although whether they did so a routine matter or in the hopes that the US would do Canada's dirty work is not addressed. The Canadians do say that they never expected Arar to be sent to Syria, and didn't get advance warning of the transfer, although if that was the point of the exercise why would they?

• Canadian Broadcasting Company (CBC) Arar timeline
• Wikipedia Entry
• Lawyers Committee Urges Investigation Into US Actions in Syrian Torture Case (Nov. 7, 2003), which says,

  Article 3 of the Convention on Torture, to which the United States is a party, states:

  No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture…. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

  U.S. treaty obligations and policy have been implemented through regulations issued by the Department of Justice, the Department of Homeland Security, and the State Department, that codify the United States' commitment not to send individuals to another country where they are likely to be tortured. Among other protections, these binding regulations require that individuals facing deportation or extradition be given an opportunity to be heard on the likelihood of torture in the country to which they are facing return. The Arar case suggests that either those procedures are not being followed, or that they are inadequate.

• Ottawa asks U.S. for explanation of Arar case, but turns down public inquiry (Nov. 5, 2003)
• Joseph Reagle, You Might Know a Terrorist, and Pay For It
• Amnesty Canada
• Canada supplied information used against Arar, says solicitor general (Nov. 19, 2003)

One should not be especially hopeful about the domestic Canadian inquiries unless Parliament or the Prime Minister set up a special independent panel, as the track record of police self-investigation in Canada isn't great. The standard police complaints body lacks the authority to get information from the security services, much less any means by which it can even send queries to the US side.

The Maher Arar case is very disturbing, although the callous cynicism of Team Bush that it appears to reveal can hardly be a surprise at this point.

The key allegations are:

• Arar, a dual Syrian-Canadian national, was transiting through a US airport on his way to Canada when he was stopped by US officials who believed him to be a terrorist, or in cahoots with terrorists.
• The US government held him virtually incommunicado for days. Then it let him meet the Canadian consul — once. And a lawyer — once, for thirty minutes.
• At some point before or after those meetings, one or more hearings relating to where Arar would be sent were held without giving Arar or his lawyer notice or an opportunity to be heard.
• Acting AG Larry Thompson sent Arar to Syria, over his expressed desire to be sent to Canada, in circumstances where Thompson knew or should have known that Arar would be tortured.
• And Arar was tortured by Syrian intelligence for more than ten months.

In short, the claim is that the US arranged for Arar to be tortured via an extraordinary rendition. Presumably because the Ba'athist Syrian intelligence has been very cooperative in the war on (religious) terror.

But you see, that claim is really very unfair. The US didn't arrange for the Syrians to torture anyone. No, no, a thousand times no. In fact, the US got the Syrians to promise that they wouldn't torture Arar. And the Justice Department not only believed those assurances then, they believe them today! The Syrians would never torture a suspected al Queda member when they had promised us they wouldn't. Or, at least, it was certainly reasonable of the good, honest, acting Attorney General to rely on the Syrians' assurances, for we well know that they are a nation firmly committed to the Rule of Law.

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FBI Visits Cryptome: Special Agent “Kelly said such visits are increasingly common as the FBI works to improve the reporting of information about threats to the US.”

I wonder if visiting web site operators to ask them to report stuff to the FBI is really the best use of our federal police force: Two agents for this? Or even one?

Note that while I can't say I'm delighted by the FBI going to web site operators and asking them to be government informants (for the same reasons I wouldn't like the FBI to do this to other types of reporters), as far as I know it is legal. And so long as these meetings are not attempts to intimidate, and as long we don't get people being investigated merely for being uncooperative when asked to become FBI informants, they're certainly something we can live with.

I've long believed that journalists have the same basic duties as other citizens, just as other citizens have the same First Amendment rights as journalists. That means that reporters should sometimes feel morally obligated to share information with the cops, especially if it affects public safety. Nevertheless, I think that the FBI, in an exercise of good taste and resource prioritization, ought to be able to find something more useful to do.

Earlier post of mine about Cryptome is here.

Who you gonna believe, AP or the Supreme Court web site? The newly revised Docket for 03-6747 says,

Nov 3 2003 Response Requested . (Due December 3, 2003)

Nov 3 2003 Brief amicus curiae of Reporters Committee for Freedom of the Press filed.

That “Response” is the one from the Government that the AP reported had no deadline (which would have been very odd). If anyone has a pointer to an online copy of the Reporter's Committee brief, I'd appreciate it.

Thanks to Marty Lederman for the heads up.

Incidentally, I discovered yesterday that one of my new, wonderful colleagues, Ricardo Bascuas was at the Miami PD's office when this all happened, and is writing an article on the M.K.B. case.

Update: Marty Lederman has full procedural details at the SCOTUSBlog

AP reports ,

The Supreme Court on Tuesday asked the Bush administration to explain the secrecy surrounding the detention of one of the immigrants arrested after the Sept. 11 attacks.

The administration has refused to release the names and other details of hundreds of foreigners rounded up after the attacks, arguing that a blanket secrecy policy is needed to protect national security.

One of those immigrants, known only as M.K.B., challenged his detention. But even that has been shrouded in secrecy.

His appeal has reached the Supreme Court, only there is little written evidence that his case exists. Lower courts sealed all the legal filings, as well as the records of how his case was handled. The proceedings were held in secret.

That is unconstitutional, federal public defender Paul Rashkind of Miami argued in the case from Florida.

The Supreme Court should intervene, Rashkind wrote in an appeal, “to preserve and protect the public's common-law and First Amendment rights to know, but also to reinforce those rights in a time of increased national suspicion about the free flow of information and debate.”

The administration told justices last month that it did not plan to file a response to the appeal. In a brief notice released Tuesday, the court said it has told the administration to give its side anyway. There is no specific deadline for the reply.

…

Hasn't shown up on the docket yet.