Jan. 7
USA:
Guantanamo is a place of sometimes puzzling secrecy
When victims of al-Qaida attacks want to talk to reporters at Guantanamo,
retired Navy Capt. Karen Loftus squires the so-called "victim family members"
to Camp Justice's press shed and introduces herself as their escort.
When The New York Post put a spotlight on Loftus' unique role as victim and
witness advocate in the coming Sept. 11 death penalty trial, the native New
Yorker willingly posed for a photo at the Brooklyn Bridge.
So it came as a puzzlement in December when the Pentagon blacked out her name
on a military judge's order compelling her to testify this month in a pre-trial
hearing of a Guantanamo death penalty case. The job description in the order
made it clear Loftus would be the witness - even with her name covered up.
So why the secrecy in postings on the Pentagon's military commissions website,
the portal for tribunal documents, whose motto is "Fairness, Transparency,
Justice?"
"I'm following the office policy because I'm a witness," said Loftus, who works
from the Pentagon's War Crimes prosecutor's office in Washington, D.C.
Yes, the woman in charge of arranging travel for victims and witnesses is
herself being treated as an anonymous witness in the case of Abd al Rahim al
Nashiri, the alleged architect of the October 2000 bombing of the USS Cole -
al-Qaida's attack that killed 17 U.S. sailors.
Meantime, the episode serves as the latest illustration of the peculiar
pick-and-choose transparency that exists in the war court that the Bush and
Obama administrations built in the aftermath of the Sept. 11, 2001 attacks.
The Pentagon's death penalty trials are months if not years away, and the court
is systematically constructing a patchwork of secrecy to surround the security
trials that, by order of Congress, are being held outside the United States at
the U.S. Navy base in Guantanamo Bay, Cuba.
The CIA delivered Nashiri to Guantanamo for trial in 2006, according to
declassified documents, after agents waterboarded him, threatened his mother,
and held a revving drill and cocked gun to his head. But where he was held or
anything about the CIA interrogation techniques, which President Obama banned
upon taking office -- none of these may be revealed in open court by order of
the judge. The same is true about what the CIA did to the 5 accused
conspirators in the 9/11 attacks.
A U.S. government censor sits in the Guantanamo court, his finger on the button
of a white-noise machine that can muffle sound if he suspects someone is about
to utter a state secret. Spectators hear courtroom conversation on a judicially
sanctioned 40-second delay.
It is in this court that Loftus is being called to testify the week of Jan. 14
about her job. She runs a Pentagon lottery for family members of victims who
want to watch the Guantanamo proceedings. She also operates a members-only
portal on the Pentagon website and arranges their travel. She travels with the
victims from Washington, D.C., to Guantanamo, where she has been seen
comforting victims in court, and dining with them at the base pub.
In court, she can instruct a guard to pull a curtain around the victims inside
the spectators gallery to shield them from the searching eyes of other
observers. She helps them decide if, or when, they talk to reporters.
Defense lawyers for Nashiri say they need their own staff member authorized to
approach Pentagon-approved victims. Over the prosecution's objections, defense
lawyers got the trial judge's order for Loftus to testify in court along with a
non-government expert on victim-witness relations, Tammy Krause, whose name,
perplexingly, is not blacked out in a separate judge's order.
As for Loftus' identity, it's being "protected from disclosure to the public"
because it meets the definition of "general discovery materials," says Army Lt.
Col. Todd Breasseale, a Pentagon spokesman. She's entitled to anonymity until
her "actual testimony," said Breasseale, who would not elaborate on why a
government-salaried worker gets anonymity but the civilian defense witness does
not.
Zachary Katznelson, a sometime Guantanamo court observer as senior attorney
with the American Civil Liberties Union's National Security Project, called the
redaction of Loftus' name an example of "confusing and inconsistent application
of opaque rules."
If her name had never been made public, and the judge likewise had Krause's
name blacked out prior to testimony, that would make sense, he said.
But, "her name is already in the record by name and it wasn't bleeped out in
our 40-second delay and it's already in the transcript," said Katznelson.
Katznelson is a lawyer who has filed unlawful detention suits for some of
Guantanamo's captives, and throughout the interview was careful never once to
speak Loftus' name, just in case.
That's because lawyers, as well as journalists, must navigate a minefield of
rules that can suddenly and inexplicably pop up. In 2010, the Pentagon banned
four reporters from covering the war court - for life - for publishing the name
of former Army Sgt. Joshua Claus, a military interrogator who was to testify
anonymously in a war-court hearing. He previously had been interviewed and
identified by name in a Toronto Star article. Some of the reporters hired a
lawyer, and the Pentagon relented. Now reporters have to sign 12 pages of
ground rules to get access to the Guantanamo court compound. But rule C.3.
makes it clear that the Pentagon can't punish reporters for publishing Loftus'
name.
The judge, however, can let even people who are identified in the court record
by name testify incognito.
That's what happened at a 9/11 hearing in October when Army Col. James Pohl,
chief of the war court, agreed to let a deputy prison camps lawyer testify
anonymously - even though her name, rank and duties are publicly available in
uncensored documents at the court. Why? One prosecutor said she was entitled to
anonymity as part of the security force. The chief prosecutor argued that, in
the absence of a protective order, she should get protection.
And the protective order, which lays out what can be kept secret is sometimes a
secret, too.
On Dec. 20, Judge Pohl signed a protective order covering "Unclassified
Discovery Material" in the Sept. 11 case - outlining the obligations of lawyers
and court workers on what they must keep secret in the run-up to the trial. The
Pentagon waited a week, until 2 days after Christmas, to notify the public of
the existence of "Protective Order #2."
Ever since Barack Obama was elected on a pledge to increase "transparency" in
government, then had his lawyers reform the military commissions, the term has
become nearly a mantra at Guantanamo. The prison camps that hold 166 captives,
all but 9 without conviction or charge, already had adopted the motto of "safe,
humane, legal, transparent" detention.
Then the Defense Department spent nearly $500,000 to construct a war court
website decorated with "Fairness, Transparency, Justice" on each and every page
that posts documents - after the intelligence agencies get up to 15 days to
scrub them. Whole filings are secret, notably one by the prosecution in both
death-penalty cases that seeks a secret finding from the judge that even the
defense lawyers have not seen.
During a recent talk, the chief prosecutor, Army Brig. Gen. Mark Martins, said
that "openness is an absolutely critical" value at the Guantanamo court. "It
provides sun, disinfectant, allows people to feel comfortable that corruption
is not happening in their processes," he told a class at the University of
Miami Law School in November.
"But this is also about finding the truth, seeking accountability and also
about protecting the public interest, which isn't always in the advertising of
every piece of information," Martins said. "In the areas of national security,
in the areas of privacy information, not all of that should be trotted out in
front of everybody. That's the basic rationale."
So, with the blessing of the judge, the names of foreign nations where the CIA
held captives are redacted - blacked out - when motions about Nashiri's
overseas capture and treatment are made public. Declassified investigative
reports found abuse. But the prosecutor, Martins, has pledged that no
involuntary confessions would be used against a war court accused.
In the case of Loftus, defense lawyers want to have someone from their side
trained to approach victims.
If there's a conviction, victims typically advise the military jury on whether
they want the criminal executed. If there's a proposal for a plea agreement,
victims may want to hear something from the accused, and defense lawyers can
serve as go-between.
As the government's witness/victim advocate, Loftus is "not a neutral person,"
said attorney Rick Kammen, Nashiri's civilian death penalty defense lawyer.
"There may be a whole host of survivors or victims who for varying reasons
aren't as engaged or may be engaged differently. We need to reach out."
Asked why the government covered up Loftus' name in his motion to call her as a
witness, he replied: "I can't possibly imagine."
Neither can Nashiri's Pentagon defender, Navy Lt. Cmdr. Stephen Reyes, who has
taken to referring to the nations that might have information about his
client's treatment as "Redact-istan." Each and every time a foreign country
appears in their filings, the name is redacted, blacked out as a national
security secret.
"This whole 'Redact-istan, Redact-igate' issue does show disparate treatment,"
says Reyes, who never once in a lengthy interview spoke Loftus' name. Just in
case.
Carol Rosenberg has covered the war court and prison camps since their
inception and was 1 of the 4 reporters "banned for life" for a period of time
in 2010.
(source: Kansas City Star)
MONTANA:
Clock ticking for Canadian on death row in U.S.
Hope the outgoing governor of Montana will grant a last minute reprieve for
Canadian death row inmate Ronald Smith is fading fast as Brian Schweitzer
spends his last few hours in office.
Smith, 55, and his legal team had hoped Schweitzer would grant clemency in one
of his final acts in office before his successor, Steve Bullock, is sworn in as
Montana`s new governor later today.
One of Smith's lawyers, Don Vernay, had hoped to hear something sooner rather
than later.
"It ain't over til it's over," said Vernay, in a telephone interview with The
Canadian Press late Sunday night.
"We've still got a few hours. All we can do is just keep waiting and hoping."
Schweitzer had been weighing a decision since the Montana Board of Pardons and
Parole recommended against granting clemency to Smith last year.
Smith issued an emotional apology at his clemency hearing in Deer Lodge,
Montana last May, saying he was "horrendously sorry" for his actions.
"I do understand the pain and suffering I've put you through," he said
directing his remarks to the families of his victims. "It was never my intent
to cause any suffering for anybody. I wish there was some way I could take it
back. I can't."
"All I can do is hope to move forward with my life and become a better person."
If Schweitzer doesn't deal with the clemency matter the responsibility will
fall to Bullock.
"At least the new governor isn't George W. Bush but I don't know what he will
do or won't do," said Vernay, who has been handling death penalty cases in
Texas for the past 15 years.
"It would be neat for him to just issue clemency his first day in office and
then he would have two terms to have the public forget about it."
Schweitzer had discussed death penalty cases in an interview with The Canadian
Press in 2011.
"You're not talking to a governor who is jubilant about these things," he said
from his office in Helena. "It feels like you're carrying more than the weight
of an Angus bull on your shoulders."
It's believed that Schweitzer might have 2nd thoughts about dealing with the
clemency request because of an outstanding civil action involving the American
Civil Liberties Union.
A ruling by Montana District Court Judge Jeffrey Sherlock last September
declared the state's method of execution unconstitutional, putting all
executions on hold.
But the State of Montana has convinced Sherlock to hear its arguments in an
attempt to bypass a requirement to get approval from the legislature to change
the way it carries out its executions.
"We have no death penalty right now and they're getting ready to litigate
whether the state can change the execution protocol without going through the
legislature," said Vernay.
The ACLU filed a civil lawsuit in 2008 on behalf of Smith and another death row
inmate that argued the lethal injection the state uses is cruel and unusual
punishment and violates the right to human dignity.
In his Sept. 6 ruling Judge Sherlock pointed to problems such as lack of
training for individuals who administer the drugs and a discrepancy over
whether 2 or 3 drugs should be used during executions.
He also questioned the method used to determine if an inmate is actually
unconscious before receiving the lethal injection.
Sherlock indicated the state legislature needed to rejig the statutes to bring
the execution protocol into line with Montana's constitution -- something the
Attorney General's office is now hoping to avoid.
Smith has been on death row ever since he admitted to shooting Thomas Mad Man
Jr. and Harvey Running Rabbit near East Glacier, Montana in 1982.
He originally asked for the death penalty, but soon after changed his mind and
has been fighting for his life ever since.
The Canadian government grudgingly sent a letter to the Parole Board asking
that clemency be granted in Dec. 2011 and followed it up with another letter
from Foreign Affairs Minister John Baird last month.
It made it clear that the Federal Court ordered the federal government to
support Smith's case for clemency.
"The government of Canada requests that you grant clemency to Mr. Smith on
humanitarian grounds," writes Baird. "The government of Canada does not
sympathize with violent crime and this letter should not be construed as
reflecting a judgment on Mr. Smith's conduct."
Smith's apology at his clemency hearing fell on deaf ears. One-by-one members
of the Mad Man and Running Rabbit families demanded that Smith be executed for
his crimes.
(source: Canadian Press)
MARYLAND:
A discriminating view of death penalty deliberations
In Gerald Stansbury's commentary ("Unrepresentative committee blocks Md. death
penalty repeal vote," Jan. 2), he implies that 4 of members of the Senate
Judicial Proceedings Committee members who voted "no" on allowing the death
penalty to go to a floor vote did so because they are white and from Baltimore
County and do not represent those most affected - people of color.
Mr. Stansbury states that "this racial bias has no place in public policy," as
he sees it from his position as president of the NAACP Maryland State
Conference. He suggests that Senate President Thomas V. Mike Miller change the
demographic make-up of this committee to better serve Marylanders of all
colors. Are these 4 white state senators totally unable to use their own
discretion and experience to make decisions regardless of their demographic
group? Mr. Stansbury needs to remember the words from another person of color,
"judged by the content of their character and not by the color of their skin."
Jim Rogers, Baltimore
(source: Letter to the Editor, Baltimore Sun)
NORTH CAROLINA:
3 death row inmates win sentence reduction; A victory against the racist court
system
Robert F. Williams, likely the greatest revolutionary North Carolina has so far
produced, declared in the late 1950s that "the so-called courts lynch our
people legally." With Black inmates making up 55 % of North Carolina's death
row in a state where only 22 % of the population is Black, these words are just
as true today as they were then.
In mid-December, however, a small victory was won when a judge ruled that the
trials of Tilmon Golphin, Christina Walters and Quintel Augustine were tainted
by "race-based decision making." Although they are still facing life in prison,
all 3 are now off death row.
Walters, a Native American woman, and Golphin and Augustine, who are Black,
were able to successfully challenge their death sentences by proving that the
state manipulated the jury selection process to reduce the presence of Black
jurors. Appeals on these grounds are allowed under North Carolina's Racial
Justice Act.
The case centered on the prosecution's racist use of peremptory challenges,
which allow legal teams to strike a given number of people from a jury pool. In
the three cases in question, peremptory strikes were used by the state between
2 and 4 times more often when dealing with prospective Black jurors than white
jurors. The discovery of notes written by prosecutors was crucial. In the
notes, a white former drug dealer was declared "a fine guy," while a Black
woman with a clean record was objectionable because she lived in a "bad area."
This is the 2nd successful application of the Racial Justice Act, which was
passed in 2009. Originally, the law considered state-wide statistical evidence
to be sufficient, but an amended version declares that statistical evidence
alone is not enough and that the argument has to be specific to the defendant's
county. Although the 2012 modification was initially vetoed, enough Democrats
voted with Republicans that the governor's objection was overruled.
Despite these precedent-setting sentence reductions, racist mass incarceration
remains very much alive in North Carolina, as it does in the rest of the
country as well. The state has an enormous prison population, 373 per 100,000
residents, 57 % of whom are Black. Anti-worker laws that take away the civil
rights of people convicted of certain crimes have also caused 2.8 percent of
the Black population of North Carolina to be legally disenfranchised.
A study by the University of North Carolina-Chapel Hill found that a defendant
is 3.5 times more likely to be sentenced to death if their alleged victim was
white. Only 40 % of homicide victims in the state are white, but of the 31
people executed since the state reinstated the death penalty in 1977 more than
80 % were convicted of killing white victims.
This enormous repressive apparatus is not simply the result of individual
prejudice or well-intentioned policies gone awry. In the United States, mass
incarceration is a cornerstone of national oppression - the economic, political
and cultural subjugation of an entire nation of people. This oppression is
directed especially sharply against the Black nation in states with a history
of chattel slavery and Jim Crow apartheid like North Carolina.
National oppression is an inherent feature of capitalism. As capitalists in the
imperialist countries scour the globe for new sources of labor, markets and
resources to exploit, they inevitably find themselves in a position where they
have to dominate other nations or peoples - by military means or otherwise - to
keep their profits flowing. As members of oppressed nationalities are forced to
immigrate to the oppressor countries, or as the oppressor nations expand their
own borders and swallow other nations whole, national oppression is also
further carried out within such imperialist countries themselves.
There is nothing inevitable about the anti-worker death penalty, the racist
courts or the entire system of exploitation and oppression that it protects.
Any injustice, no matter how monstrous, can be smashed by working-class
solidarity and militant struggle.
(source: PLS Web)
_______________________________________________
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Search the Archives: http://www.mail-archive.com/deathpenalty@lists.washlaw.edu/
~~~~~~~~~~~~~~~~~~~~~~~~~~~
A free service of WashLaw
http://washlaw.edu
(785)670.1088
~~~~~~~~~~~~~~~~~~~~~~~~~~~
