Seven are acquitted in Madrid bombings

New York Times
October 31, 2007

By VICTORIA BURNETT
MADRID, Oct. 31 — The National Court on Wednesday convicted three men of murdering 191 people and wounding more than 1,800 in the 2004 Madrid bombings. But three other men, who were accused of being the organizers, were found not guilty of direct involvement in the attacks, the most deadly carried out by Islamic radicals on European soil.

The three-judge tribunal court acquitted a total of seven suspects and found 18 others guilty of lesser charges related to the attacks, including belonging to a terrorist organization.

The sentences ranged from 3 to almost 43,000 years, although under Spanish law, the maximum anyone is forced to serve is 40 consecutive years. One defendant was released during the trial for lack of evidence.

Many Spaniards were shocked that the focal suspects were not convicted of the most severe charges.

The verdicts closed a sprawling trial that over the course of five months brought 29 defendants, nearly 50 lawyers and 350 witnesses to a temporary courtroom on the outskirts of Madrid.

The trial promised the first taste of justice to those wounded in the attacks and the relatives of those killed on March 11, 2004, when blasts from 13 sports bags stuffed with explosives and nails tore through four trains carrying people from mainly working-class suburbs to the city center.

Those who believed that prosecutors had produced enough evidence to convict the main suspects of the most serious charges were disappointed.

Isabel Presa, who lost her youngest son in the blasts, told reporters outside the courtroom, “I’m not a judge or a lawyer, but this is shameful, outrageous.”

According to Reuters, Ms. Presa said the attacks had “condemned me and my husband to a life sentence, and these people get off scot-free.”

Counterterrorism experts said the verdict underscored the difficulty of building a solid case against people accused of inspiring or directing Islamist foot soldiers, and who belong to diffuse groups with little formal structure.

The bombings were carried out by a group of North African Islamists that intersected with a band of petty criminals whose ringleader, Jamal Ahmidan, had become radicalized in a Moroccan jail. Seven of the main suspects, including Mr. Ahmidan, blew themselves up in a Madrid apartment when they were surrounded by the police three weeks after the attacks, and four others are believed to have fled.

Without a case strong enough to convict those suspected of being organizers, the prosecutors failed to prove a connection between the group that carried out the attacks and international Islamists with links to established organizations, like the Moroccan Islamic Combatant Group.

The counterterrorism experts said the verdicts reflected the challenges faced by police forces and judges as they seek to imprison those accused of international terrorism: the preponderance of circumstantial evidence rather than concrete proof; problems with evidence translated from Arabic and with evidence collected by other countries; unreliable witnesses; and the absence of confessions — none of the 28 defendants confessed.

“It is a point of pride to be able to try people in a courtroom, with full constitutional guarantees,” Fernando Reinares, an expert in international terrorism at the Royal Elcano Institute, said. “But in Spain there is space for debate about whether we need to adapt our judicial legislation and culture to confront international Islamist terrorism.”

Roland Jacquard, head of the International Observatory on Terrorism in Paris, said prosecutors had encountered similar difficulties in countries like Germany, where people accused of complicity in the Sept. 11, 2001, attacks on the United States were acquitted for lack of evidence.

He said: “We need to find a legal formula that would give evidence of the masterminds’ responsibility, and not only of the responsibility of the operatives. It is always easier to arrest someone who has imprints of explosives on his hands.”

Javier Gómez Bermudez, the presiding judge on the tribunal, sentenced Jamal Zougam, 34, a Moroccan whom witnesses saw on one of the trains that was later bombed, to more than 30,000 years in prison for charges including murder. Mr. Zougam owned a shop where most of the phone cards used in the mobile phones that detonated the explosives were bought.

The tribunal gave a similar sentence to Otman el-Gnaoui, 32, a Moroccan who helped transport the explosives used in the attacks, and to José Emilio Suárez Trashorras, 30, who was convicted as a “necessary accomplice.” Mr. Suárez, a former miner from northern Spain, supplied the stolen dynamite used in the bombings in exchange for drugs.

But the tribunal acquitted Rabei Osman Sayed Ahmed, who was accused of being a March 11 organizer. Last year, he was convicted in an Italian court of conspiracy to participate in international terrorist activities.

The other defendants who were accused of being organizers, Hassan el-Haski and Youssef Belhadj, were acquitted of any such role and convicted of belonging to a terrorist group.

In written arguments released Wednesday, the tribunal said tapes of telephone conversations made by the Italian police and provided as evidence against Mr. Ahmed did not prove his participation in the plot. Prosecutors said Mr. Ahmed was caught boasting that he was “the thread behind the Madrid plot,” but the translation from the Arabic was disputed by Spanish translators in the Madrid court.

The tribunal also said a piece of paper found in Mr. Ahmed’s Milan apartment, bearing the words “martyr,” “honey” and “11-03-04” — the European rendering of the date of the attack — was not conclusive evidence.

Mr. Reinares, the expert on terrorism, said the tribunal appeared to have been very strict in its definition of admissible evidence. “It seems he has not admitted the extraordinary mass of circumstantial evidence,” Mr. Reinares said. “This kind of evidence is crucial when you are trying members of a nebulous group of international terrorists.”

Pauline Ranger contributed reporting from Paris.

Al-Marri: Court Takes Second Look at Enemy Combatant Case

New York Times
November 1, 2007

RICHMOND, Va., Oct. 31 — It seemed like a foregone conclusion that the full United States Court of Appeals for the Fourth Circuit would be receptive to the Bush administration’s contention that it has the authority to detain people it calls enemy combatants.

The court’s conservative reputation is well known, and in August it decided to rehear the case in which a three-judge appeals panel rejected aspects of the administration’s position.

But, based on the pointed, practical and frequently passionate questioning here on Wednesday in the case of Ali al-Marri, the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning.

Mr. Marri is the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. A citizen of Qatar legally in the United States, he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. The government contends that he is a sleeper agent for Al Qaeda.

The central question before the nine judges hearing the case on Wednesday was whether the executive branch may capture people in the United States and subject them to indefinite military detention without charges.

In 2004, the Supreme Court ruled that Congress had granted the president power to detain at least those enemy combatants captured on the battlefield in Afghanistan, even if they are American citizens, for the duration of hostilities there. Based on that decision, the Fourth Circuit in 2005 upheld the detention of Jose Padilla, an American arrested at a Chicago airport. Although Mr. Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision largely turned on his own activities on the battlefield in Afghanistan.

Mr. Padilla was later transferred to the criminal justice system and tried on charges related to terrorism. He was convicted in August. Mr. Marri traveled the same road in the opposite direction. He was on the verge of a trial on credit card fraud and other charges when he was moved to military detention in 2003.

The appeals panel in Mr. Marri’s case ruled, 2 to 1, in June that the powers Congress granted to the president in September 2001 extended only to the detention of people who had taken up arms against the United States as part of the armed forces of an enemy nation. That would include people who fought alongside the Taliban but not most members of Al Qaeda.

At the argument on Wednesday, Judge J. Harvie Wilkinson III called that distinction curious, saying, “I don’t understand how the authority to use military force which relates specifically to the Sept. 11 attacks can be held not to apply to the people who attacked us.”

He added, in extended remarks, that civil liberties groups had stirred up needless anxiety about the president’s detention powers. “We’re not talking about an indiscriminate roundup,” he said. “We’re talking about two people” — Mr. Marri and Mr. Padilla — “in six years with undisputed ties to Al Qaeda.”

Judge Roger L. Gregory, who joined the majority opinion in the panel decision, responded that the question was one of constitutional principle.

Gregory G. Garre, arguing for the government, faced practical questions that suggested concern among the judges about his position. “How long can you keep this man in custody?” Judge M. Blane Michael asked.

“It could go on for a long time,” Mr. Garre replied, adding that it depended on how long the United States was at war with Al Qaeda.

“It looks like a lifetime,” Judge Michael said.

Judge William B. Traxler Jr. asked whether people could be detained and held in secret. “What kind of notice is required to the public or his family?” Judge Traxler asked.

Mr. Marri has not seen or spoken to his wife and five children in more than four years.

Mr. Garre responded that Mr. Marri, who was held incommunicado for his first 16 months in the brig, was eventually given access to lawyers and a court hearing in which he was given the opportunity to rebut the government’s assertions, an opportunity Mr. Garre said Mr. Marri had “squandered.” (Mr. Marri’s lawyers say it ought to be the government’s burden to prove its accusations.)

Judge Traxler pressed Mr. Garre. “How is a person who is held incommunicado to challenge these things?” he asked. Mr. Garre offered no direct response.

Mr. Marri’s lawyer, Jonathan L. Hafetz of the Brennan Center for Justice at New York University, said the government had been a moving target in terrorism cases. “This is not a game,” Mr. Hafetz said, referring to the exchanges with Mr. Garre. “This is a man’s life. Mr. al-Marri is entitled to know what the rules are.”

One of the 10 active judges on the court, Judge Dennis W. Shedd, recused himself, giving no reason. A 5-to-5 tie would have automatically affirmed the trial judge’s dismissal of Mr. Marri’s case. Now five votes are needed for either side to win.

Military Judges Dismiss Charges for 2 Detainees

NY Times, June 5, 2007
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba, June 4 — The government’s new system for trying Guantánamo detainees was thrown into turmoil Monday, when military judges in separate decisions dismissed war crimes charges against two of the detainees.

The rulings, the latest legal setbacks for the government’s effort to bring war crimes charges against detainees, could stall the military’s prosecutions here.

The decisions did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures to declare the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.

Pentagon officials described the rulings as raising technical and semantic issues, and said that they were considering appeals. If appeals failed, they said, they could go through the process of redesignating the detainees.

But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.

In an interview, Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, said after the first of the two rulings Monday that the decision raised significant issues and could prompt Congress to re-evaluate the legal rights of detainees, including Congress’s decision last year to revoke the rights of detainees to file habeas corpus suits to challenge their detentions.

“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantánamo milieu,” Mr. Specter said, adding, “There’s just a sense of too many shortcuts in the whole process.”

Whatever the ultimate legal ramifications of Monday’s rulings, they are another in a string of unexpected detours in the government’s five-year effort to establish a special legal system for trying foreign terrorism suspects. The current commission system was approved by Congress after the Supreme Court last June struck down the administration’s first plan for holding war crimes trials.

The military judges said Congress authorized the bringing of war-crimes charges against detainees who had been declared by military tribunals to be “unlawful enemy combatants.” But they said the tribunals held at Guantánamo, known as combatant status review tribunals, or C.S.R.T.’s, had determined only that the detainees were enemy combatants, without making the added determination that their participation was “unlawful.”

The international law of war defines unlawful combatants as fighters who, for example, do not wear military uniforms and conceal their weapons.

Monday’s rulings came in the cases of the only Canadian detainee, Omar Ahmed Khadr, and a Yemeni detainee, Salim Ahmed Hamdan. Mr. Hamdan’s appeal of a prior effort to prosecute him led to a Supreme Court decision last June in which the justices struck down the administration’s first system for war-crimes trials.

The military judge in Mr. Hamdan’s case, Capt. Keith Allred of the Navy, said the Pentagon had failed to obtain the necessary enemy combatant classification of Mr. Hamdan, who is accused of being the Qaeda driver for Osama bin Laden.

Mr. Hamdan’s longtime military lawyer, Lt. Cmdr. Charles Swift said that, though his client was unlikely to obtain freedom because of the decision, “It was once again a victory for the rule of law.”

The judge in Mr. Khadr’s case, Peter E. Brownback III, an Army colonel, said since the detainee had not been declared an unlawful enemy combatant, the military court did not have jurisdiction over the case and the proceedings could not continue. “A person has a right to be tried only by a court which he knows has jurisdiction over him,” Judge Brownback said from the bench in the military courtroom here.

Mr. Khadr, who was 15 when he was captured in Afghanistan, is charged with killing an American soldier, spying, supporting terrorism and other charges.

The White House declined on Monday night to comment on the decisions. Beth G. Kubala, an Army major who is the spokeswoman for the Office of Military Commissions at the Pentagon, said that the day’s ruling demonstrated that the military judges operated independently. But she suggested that the military did not view the double defeat as paralyzing to its prosecutions of war crimes.

“The public should make no assumptions,” Ms. Kubala said, “about the future of military commissions.”

A Pentagon statement said: “We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures.”

But Mr. Specter said it was “dead wrong” to assert that Congress intended to permit prosecution of detainees who had not been declared unlawful enemy combatants.

So far, three detainees have been charged with war crimes under the law passed last year, including Mr. Khadr and Mr. Hamdan. The third detainee, David Hicks, pleaded guilty earlier this year and was sent to his native Australia. Prosecutors have said they may file such war crimes charges against about 80 of the 380 detainees here.

Under directives from President Bush and senior Defense Department officials, military officials here have held detainees after finding simply that they were “enemy combatants.”

Those procedures have long drawn criticism, with some opponents of administration policies saying they appeared to ignore principles of the international law of war, which sanctions the violence of battle without classifying it as a war crime.

The military could repair the problem raised by the judges Monday by holding new combatant status review hearings to determine if each of the detainees slated for war-crimes charges was an unlawful combatant.

But the chief military defense lawyer here, Col. Dwight Sullivan of the Marines, said he viewed the decision as having broad impact because it underscored what he and other critics have described as a commission process that lacks international legitimacy and legal authority.

“How much more evidence do we need that the military commission process doesn’t work?” asked Colonel Sullivan.

Some experts on military law said the new tangle of legal challenges would almost certainly cause extensive delays at a time when the administration has been pressing to show that its legal proceedings at Guantánamo were moving forward.

David W. Glazier, a retired Navy commander who is an associate professor at the Loyola Law School in Los Angeles, said it would be cumbersome for the military to get new determinations that the detainees were unlawful combatants.

“All the individuals that the government wants to charge will have to go through the C.S.R.T. process again,” Mr. Glazier said.

Some legal experts said subjecting the detainees to new combatant status hearings could create additional problems for the administration. The combatant status panels have been among the most criticized features of the Pentagon’s legal system here, in part because detainees are not permitted lawyers and are not allowed to see much of the evidence against them.

In a recent case in federal appeals court in Washington, the Justice Department acknowledged that in some cases, Pentagon officials disagreed with findings from combatant status panels that detainees were not enemy combatants. In some of those cases new hearings were ordered and those detainees were determined to be enemy combatants after all.

Adam Liptak contributed reporting.

Interrogation Methods Are Criticized

May 30, 2007
New York Times

By SCOTT SHANE and MARK MAZZETTI
WASHINGTON, May 29 — As the Bush administration completes secret new rules governing interrogations, a group of experts advising the intelligence agencies are arguing that the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable.

The psychologists and other specialists, commissioned by the Intelligence Science Board, make the case that more than five years after the Sept. 11 attacks, the Bush administration has yet to create an elite corps of interrogators trained to glean secrets from terrorism suspects.

While billions are spent each year to upgrade satellites and other high-tech spy machinery, the experts say, interrogation methods — possibly the most important source of information on groups like Al Qaeda — are a hodgepodge that date from the 1950s, or are modeled on old Soviet practices.

Some of the study participants argue that interrogation should be restructured using lessons from many fields, including the tricks of veteran homicide detectives, the persuasive techniques of sophisticated marketing and models from American history.

The science board critique comes as ethical concerns about harsh interrogations are being voiced by current and former government officials. The top commander in Iraq, Gen. David H. Petraeus, sent a letter to troops this month warning that “expedient methods” using force violated American values.

In a blistering lecture delivered last month, a former adviser to Secretary of State Condoleezza Rice called “immoral” some interrogation tactics used by the Central Intelligence Agency and the Pentagon.

But in meetings with intelligence officials and in a 325-page initial report completed in December, the researchers have pressed a more practical critique: there is little evidence, they say, that harsh methods produce the best intelligence.

“There’s an assumption that often passes for common sense that the more pain imposed on someone, the more likely they are to comply,” said Randy Borum, a psychologist at the University of South Florida who, like several of the study’s contributors, is a consultant for the Defense Department.

The Bush administration is nearing completion of a long-delayed executive order that will set new rules for interrogations by the Central Intelligence Agency. The order is expected to ban the harshest techniques used in the past, including the simulated drowning tactic known as waterboarding, but to authorize some methods that go beyond those allowed in the military by the Army Field Manual.

President Bush has insisted that those secret “enhanced” techniques are crucial, and he is far from alone. The notion that turning up pressure and pain on a prisoner will produce valuable intelligence is a staple of popular culture from the television series “24” to the recent Republican presidential debate, where some candidates tried to outdo one another in vowing to get tough on captured terrorists. A 2005 Harvard study supported the selective use of “highly coercive” techniques.

But some of the experts involved in the interrogation review, called “Educing Information,” say that during World War II, German and Japanese prisoners were effectively questioned without coercion.

“It far outclassed what we’ve done,” said Steven M. Kleinman, a former Air Force interrogator and trainer, who has studied the World War II program of interrogating Germans. The questioners at Fort Hunt, Va., “had graduate degrees in law and philosophy, spoke the language flawlessly,” and prepared for four to six hours for each hour of questioning, said Mr. Kleinman, who wrote two chapters for the December report.

Mr. Kleinman, who worked as an interrogator in Iraq in 2003, called the post-Sept. 11 efforts “amateurish” by comparison to the World War II program, with inexperienced interrogators who worked through interpreters and had little familiarity with the prisoners’ culture.

The Intelligence Science Board study has a chapter on the long history of police interrogations, which it suggests may contain lessons on eliciting accurate confessions. And Mr. Borum, the psychologist, said modern marketing may be a source of relevant insights into how to influence a prisoner’s willingness to provide information.

“We have a whole social science literature on persuasion,” Mr. Borum said. “It’s mostly on how to get a person to buy a certain brand of toothpaste. But it certainly could be useful in improving interrogation.”

Robert F. Coulam, a research professor and attorney at Simmons College and a study participant, said that the government’s most vigorous work on interrogation to date has been in seeking legal justifications for harsh tactics. Even today, he said, “there’s nothing like the mobilization of effort and political energy that was put into relaxing the rules” governing interrogation.

The director of the science board project, Robert A. Fein, a forensic psychologist at Harvard, declined to speak on the record.

In a prologue to the December report, the first of a planned series, Mr. Fein said the shortage of research meant that many American interrogators were “forced to ‘make it up’ on the fly,” resulting in “unfortunate cases of abuse.”

But associates say Mr. Fein does not want to antagonize intelligence officials, whom he hopes to persuade to bring the reality check of research to bear on interrogation practices.

Defenders of the harshest interrogations, particularly as practiced by the C.I.A. at secret overseas sites, say they were carefully devised and have produced valuable intelligence. An agency spokesman, Paul Gimigliano, said the program “has generated a rich volume of intelligence that has helped the United States and other countries disrupt terrorist activities and save innocent lives.”

He said the agency’s interrogators were “seasoned, well trained, and have the linguistic resources they need,” and added, “The agency learned terrorist interrogation after 9/11, but — based on the effectiveness of this fully legal program — it learned it well.”

A. B. Krongard, who was the executive director of the C.I.A., the No. 3 post at the agency, from 2001 to 2004, agreed with that assessment but acknowledged that the agency had to create an interrogation program from scratch in 2002.

He said officers quickly consulted counterparts in Egypt, Saudi Arabia, Israel and other countries to compile a “catalog” of techniques said to be effective against Arab and Muslim prisoners. They added other methods drawn from those that American troops were trained to withstand in case of capture.

Mr. Krongard even recalls receiving a proposal for help with questioning Qaeda suspects from an American dentist who said he “could create pain no human being could withstand.”

The agency rejected such ideas as ludicrous. But administration lawyers approved a list of harsh methods that have drawn widespread condemnation.

In an April lecture, Philip D. Zelikow, the former adviser to Ms. Rice, said it was a grave mistake to delegate to attorneys decisions on the moral question of how prisoners should be treated.

Mr. Zelikow, who reviewed the C.I.A. detention program as the executive director of the Sept. 11 commission, said the “cool, carefully considered, methodical, prolonged and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral.”

Many of the techniques that have come in for such criticism were based on those used in the military’s Survival, Evasion, Resistance and Escape training, or SERE, in which for decades American service members were given a sample of the brutal treatment they might face if captured.

Because the training was developed during the cold war, the techniques later adopted by the C.I.A. and Special Operations officers in Iraq were based, at least in part, on how the Soviet Union and its allies were believed to treat prisoners. Such techniques included prolonged use of stress positions, exposure to heat and cold, sleep deprivation and even waterboarding.

A report on detainee abuse by the Defense Department’s inspector general, completed in August but declassified and released May 18, gives new details of how the military training was “reverse engineered” for use by American interrogators. It says that as early as 2002, some SERE trainers and some military intelligence officers vehemently objected to the use of the techniques, but their protests were ignored.

Senator Carl Levin, a Michigan Democrat and chairman of the Senate Armed Services Committee, said he found the report “very troubling” and intended to hold hearings on how the SERE training methods became the basis for interrogation. “They were put to a purpose that was never intended,” Mr. Levin said.

Mr. Kleinman, the former Air Force interrogator who took part in the “Educing Information” study, said the mistakes of the past five years “have made interrogation synonymous in many people’s minds with torture.” But he said the group wanted to redirect the debate toward the future of interrogation.

“Our intention is not to point fingers at anyone,” he said. “We’re just saying we have to bring interrogation up to the level of professionalism in other intelligence disciplines.”

Death of Guantanamo Detainee Is Apparent Suicide, Military Says

By Josh White
Washington Post Staff Writer
Thursday, May 31, 2007; A08

A Saudi detainee at the U.S. military detention facility at Guantanamo Bay, Cuba, was found dead in his cell from an apparent suicide yesterday afternoon, military officials said. He would be the fourth detainee to take his own life at the facility in the past year.

Military officials at U.S. Southern Command did not release details about the death or identify the detainee, who was among about 80 Saudi Arabians in custody. Attorneys with the Center for Constitutional Rights, a New York-based law group that represents many Guantanamo detainees, said they had learned no details as of last night and did not have independent confirmation that the death was a suicide.

"The detainee was found unresponsive and not breathing in his cell by guards," military officials said in a news release on Southcom's Web site. "The detainee was pronounced dead by a physician after all lifesaving measures had been exhausted."

The Naval Criminal Investigative Service has started an investigation, and a cultural adviser is assisting officials at the base to ensure that the detainee's body is handled in a "culturally sensitive and religiously appropriate manner," according to the release.

Three detainees committed suicide in their cells simultaneously on June 10, 2006, using clothes and sheets to fashion makeshift nooses. U.S. officials called the incident an act of "asymmetric warfare" and a way to garner negative publicity for the detention facility on the U.S. base. Those detainees, according to the military, allegedly conspired with others to carry out a suicide pact and passed notes among themselves about how to do it.

The three suicides in June were the first detainee deaths reported at Guantanamo since it opened in January 2002. As of last year, there had been more than 40 suicide attempts by about 25 detainees, including some who had tried to overdose on hoarded drugs and one who repeatedly tried to die by hanging and slashing himself.

Such cases are illustrative of the negative image that Guantanamo has internationally; even Defense Secretary Robert M. Gates has expressed a desire to close the facility because of the taint it carries. Attorneys for detainees have talked emotionally about the desperation their clients feel and have railed against what they consider worsening conditions at the facility's newest camp, which is modeled after U.S. prisons.

There are about 380 detainees at Guantanamo, fewer than half of the 775 detainees who have been there since it was opened to house those captured in the war in Afghanistan and in the larger Bush administration effort against terrorism. Three detainees have been charged with crimes under the Military Commissions Act of 2006.

Military spokesmen at the Pentagon and at Guantanamo referred all inquiries to Southcom. A Southcom spokesman said last night that he could not elaborate on details of yesterday's death.

Wells Dixon, an attorney at CCR, said last night that he has asked the Justice Department for information about the detainee, and that his organization is already calling for an independent investigation into his death. Dixon, who visited Saudi detainees at Guantanamo earlier this month, said they "were suffering terribly."

"The fact that four detainees have now died while in military custody should not surprise anyone," Dixon said. "These results are predictable, given the fact that these men have been confined for so long without charge or trial under such difficult circumstances."

Staff researcher Julie Tate contributed to this report.

ACLU: Boeing Offshoot Helped CIA

May 31, 2007
By THE ASSOCIATED PRESS
Filed at 5:49 a.m. ET

NEW YORK (AP) -- A Boeing Co. subsidiary accused by the American Civil Liberties Union of facilitating torture by providing services to the CIA for secret overseas flights said it does not, as a rule, inquire about its customers' business.

The ACLU filed a lawsuit Wednesday claiming Jeppesen Dataplan, Inc., enabled the clandestine transportation of three terrorism suspects to secret overseas locations where they were tortured and subjected to other ''forms of cruel, inhuman and degrading treatment.''
''We don't know the purpose of the trip for which we do a flight plan,'' said Mike Pound, a spokesman for Englewood, Colo.-based Jeppesen.

''We don't need to know specific details. It's the customer's business, and we do the business that we are contracted for,'' he said. ''It's not our practice to ever inquire about the purpose of a trip.'' The company had no immediate comment on specifics of the lawsuit.

Jeppesen Dataplan provides flight plans, fuel, airport data and other services to its clients.
The ACLU said Jeppesen Dataplan ''either knew or reasonably should have known'' that it was facilitating the torture of terrorism suspects by providing flight services to the CIA.

Companies ''are not allowed to have their heads in the sand and take money from the CIA to fly people, hooded and shackled, to foreign countries to be tortured,'' ACLU attorney Ben Wizner said.

Boeing itself is not named in the lawsuit and would not confirm a Jeppesen-CIA link, spokesman Tim Neale said. He said customers have a confidentiality clause.

The lawsuit was filed Wednesday in U.S. District Court in Northern California but announced in New York City.

The three detainees have claimed through their family and lawyers that they have been tortured and abused against universally accepted legal standards. One claimed to have been routinely tortured under interrogation about al-Qaida and Osama bin Laden. The detainees' attorneys appealed to the ACLU for assistance.

The cases involve the treatment of Binyam Mohamed, an Ethiopian citizen, in July 2002 and January 2004; Elkassim Britel, an Italian citizen, in May 2002; and Ahmed Agiza, an Egyptian citizen, in December 2001, ACLU officials said at a Manhattan news conference.

Mohamed is currently being held in Guantanamo Bay, Cuba; Britel in Morocco and Agiza in Egypt, the ACLU said.

The ACLU said the suspects were apprehended under the U.S. government's ''extraordinary rendition program.''

Extraordinary rendition is the clandestine capture and transfer of suspects to be detained and interrogated in countries where the protections of U.S. laws do not apply, according to Wizner.
''American corporations should not be profiting from a CIA rendition program that is unlawful and contrary to core American values,'' said Anthony D. Romero, the ACLU's executive director. ''Corporations that choose to participate in such activity can and should be held legally accountable.''

Neither the CIA nor the U.S. government is named in the lawsuit. Wizner said the executive branch has invoked a state secrets defense in similar lawsuits.

The Bush administration has insisted it receives guarantees from countries receiving terror suspects that prisoners will not be tortured.
------
Associated Press writer Paul Elias in San Francisco contributed to this report.

Big Disparities in Judging of Asylum Cases

May 31, 2007
New York Times
By JULIA PRESTON

Asylum seekers in the United States face broad disparities in the nation’s 54 immigration courts, with the outcome of cases influenced by things like the location of the court and the sex and professional background of judges, a new study has found.

The study, by three law professors, analyzes 140,000 decisions by immigration judges, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia. The professors compared for the first time the results of immigration court cases over more than four years, finding vast differences in the handling of claims with generally comparable factual circumstances.

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

“It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge,” said an author of the study, Philip G. Schrag, a professor at Georgetown University Law Center.

The study offers an unusually detailed window into the overburdened and often erratic immigration courts. Though the immigration bill now being considered does not propose major revisions in asylum laws, those courts serve as the judicial backbone of the immigration system that would take on an immense new workload if the bill becomes law.

The legislation would offer a road to legal status to an estimated 12 million illegal immigrants, eliminate backlogs of legal immigration cases and step up enforcement, among other measures. Experts predict countless legal snags that would land before the immigration judges.

Officials at the Executive Office for Immigration Review of the Department of Justice, which oversees the immigration courts, declined to allow interviews about the study with David L. Neal, the chief immigration judge, citing a policy that immigration judges do not speak with the news media about their rulings.

The study found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.

Immigration lawyers acknowledge that the judges have difficult work, with huge dockets of cases that must be decided speedily on the basis of scant or subjective information. Often the asylum seeker is the only witness to crucial events.

But because immigration law is federal, the study’s authors argued, some uniformity could be expected in judges’ asylum rulings across the country, particularly in cases of people fleeing a country, like China or Colombia, where the conditions of political oppression or civil violence are publicly known.

“It’s such a high-volume system where the participants have so little time to test cases and make decisions, you become much more subject to the general viewpoint of the judge,” said Bo Cooper, a lawyer at Paul, Hastings, Janofsky & Walker who is a former general counsel of the Immigration and Naturalization Service. That has created a risk, Mr. Cooper said, that “the system will not be good enough at providing refuge to those in need or identifying the claims of those who are not in need.”

The wide discretion exercised by immigration judges can be disheartening to lawyers and disastrous for immigrants facing threats to their lives if they are forced to return home, immigration lawyers said.

“Oftentimes, it’s just the luck of the draw,” said Cheryl Little, a lawyer and executive director of the Florida Immigrant Advocacy Center, a legal assistance group in Miami that represents many asylum seekers. “It’s heartbreaking,” Ms. Little said. “How do you explain to people asking for refuge that even in the United States of America we can’t assure them they will receive due process and justice?”

While immigration officers at Citizenship and Immigration Services, the federal agency, can grant asylum, the majority of asylum cases are decided by the immigration judges. Under the immigration system, refugees are foreigners coming from abroad who win residency in the United States for protection from religious persecution or political threats. Asylum is granted to foreigners who apply for refuge when they are already in the United States.

The study is based on data on judges’ decisions from January 2000 through August 2004. It will be posted today on the Web site of the Social Science Research Network, www.ssrn.com, and published in November in the Stanford Law Review.

In addition to Professor Schrag, the authors are Andrew I. Schoenholtz, also a professor at Georgetown University Law Center, and Jaya Ramji-Nogales, a professor at Beasley School of Law at Temple University.

According to the study, great differences also prevail among judges sitting on the same court and hearing similar asylum cases. In the Miami immigration court, one judge granted 3 percent of the asylum cases, while another granted 75 percent.

One of the most significant factors determining whether a judge would be likely to approve asylum petitions was sex, the study found. Female immigration judges grant asylum at a 44 percent higher rate than their male colleagues.

The study by the three professors did not examine the judges’ political affiliation or the administration that appointed them.

The study suggests that the different willingness to grant asylum between male and female judges may in part have to do with their backgrounds. Of 78 female judges in the study, 27 percent had previously worked for organizations that defended the rights of immigrants or the poor, while only 8 percent of 169 male judges had similar experience. .

Though the study does not identify judges by name, profiles of immigration judges were drawn up separately by the Transactional Records Access Clearinghouse, a research group at Syracuse University. They show that the 24 judges who sit today in Miami (21 in court and 3 based in a detention facility) include some of the most likely and least likely to grant asylum.

According to the Clearinghouse profiles, one immigration judge currently on the Miami court, Mahlon F. Hanson, granted 3 percent of the asylum cases he heard. He was the second-toughest judge in the nation on asylum issues, the group found. Judge Denise N. Slavin, who hears cases at the Krome North detention center in Miami, granted 59 percent of the asylum claims she considered, placing her in the top 15 percent of judges approving such claims.

Lawyers said the variations may in part have to do with the cases particular courts are handling. Miami immigration courts see a large number of asylum claims from Haiti, and the judges may have differing outlooks and disagree about the possibilities for Haitians to face persecution in their country.

The variations between courts and among judges were particularly troubling, the authors of the study argued, because of the impact of procedural changes introduced by the Bush administration in 2002 at the Board of Immigration Appeals, the appellate body that reviews decisions by the immigration court judges.

Those changes led to a “sudden and lasting decline” in appeals that were favorable to asylum seekers, the study found, raising doubts as to whether the board was providing fair appeals.

In 2002, Attorney General John Ashcroft made streamlined the work of the appeals board, reducing the number of board members to 11 from 23 and encouraging more decisions by single members and without explanation.

The study looked at 76,000 decisions by the appeals board from 1998 through 2005. Asylum applicants who were represented by lawyers received favorable appeals decisions from the board in 43 percent of cases in 2001, the year before the changes took effect. By 2005, asylum seekers with lawyers won their appeals in 13 percent of cases.

“The judges handle a very large caseload, they’re human, they are not going to catch every detail,” said Mary Meg McCarthy, director of the National Immigrant Justice Center, a legal assistance group in Chicago. “But once they streamlined the Board of Immigration Appeals,” Ms. McCarthy said, “there was a failure of the board to review those cases, to check on what the immigration judge had found. When that failed, we had a real crisis in the system.”

As a result of the trends at the appeals board, there has been a new surge of asylum appeals to the federal circuit courts, in practice the last resort for immigration cases. Over all, the number of people winning asylum in the United States has declined, dropping by about 12 percent from 28,684 in 2003 to 25,257 in 2005, the last year when complete figures are available.

The immigration courts have been in the spotlight after Justice Department officials said last week that the investigation of Monica M. Goodling, a former aide to Attorney General Alberto R. Gonzales, has been expanded to include her role in helping to appoint immigration judges.

Ms. Goodling testified last week that she had “crossed the line” in applying political considerations to candidates for nonpartisan legal jobs. Immigration judges are appointed by the attorney general, and 49 of 226 current judges were appointed during the tenure of Mr. Gonzales.