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Today's
Stories
October 8 /
9, 2005
Alexander Cockburn
Rhetoric
and Reality in the Business of Getting Rid of Black People
Ralph Nader
Katrina
and the Growls of Greed
Saul Landau
An Oily Religious Dream
Jeff Halper
Setting Up Abbas
October 7,
2005
Larry Johnson
The
Plame Case: the Real Issues
Will Youmans
Why
Do We Hate Our Freedom? Recruiters and Thugs on Campus
Dave Lindorff
Bird Flu: Evolution or Intelligent Design?
Judith Scherr
Haiti's Children's Prison
Russell D. Hoffman
Nukes for Peace, Revisited?: Nobel Prize Debacle
Jared Bernstein
Katrina and Jobs
Jennifer Van
Bergen
New
American Law: the Case of Dr. Dhafir
Website of
the Day
FBI Witchhunt
October 6, 2005
P. Sainath
"Take
That, Tom Friedman": Indian Masses Reject NYT's Neoliberal
Idol Again
Scott Parkin
When Antiwar Activists Get Mugged
Paul Craig
Roberts
Blundering
into Syria
Andréa Schmidt
Haiti's Biometric Elections: a High-Tech Experiment in Exclusion
Dave Lindorff
Easy
Money in the Big Easy
Joshua Frank
In Defense of Lew Rockwell
M. Junaid Alam
Jackboots at George Mason
Matthew Koehler
Cock and Bull on the Bitterroot
Robert Pollin
Is
the Dollar Still Falling?
October 5,
2005
Heather Gray
Militarization is Not an Answer for
Reconstruction: the Case of the Philippines
Robert Jensen
Is
Bush a Racist?
Ramzy Baroud
Bush's Final Choice: America or
the Empire
Col. Dan Smith
Keeping Promises to Iraq: "Everything
is Bad"
Dave Zirin
Barry
Bonds Laughs Last
Paul Craig Roberts
Liberal Guilt? How the Neocons
Took Over
Alan Maass
Doing
the Right Wing's Dirty Work
October 4, 2005
Nikolas Kozloff
Shocking the Two Party System:
a Political Opportunity for Sheehan and the Antiwar Mvt.
Mike Roselle
Houston,
You've Got a Problem
Joshua Frank
The Scoop on Harriet Miers
John Chuckman
War
Porn: What the Gruesome Images Say
Alan Farago
Storm Warning for Jeb: Developers,
Hurricanes and the Keys
Mickey Z.
An
Interview with Thaddeus Rutkowski
Christine & Ethan Rose
Home Depot Exploits Hurricane Victims
Gary Leupp
An
Earlier Empire's War on Iraq: a Lesson from Roman History
Website of the Day
Rodney
Crowell on Bob Dylan
October 3,
2005
Vijay Prashad
Desperation at Holyoke
Paul Craig
Roberts
Condi
Rice: Gunslinger
Joshua Frank
An Interview with Cindy Sheehan
Seth Sandronsky
The
Hiring Crisis for Black Teens
Jeffrey St. Clair
The Great Green Scare
October
1 / 2, 2005
Cockburn
/ St. Clair
Democrats Sink Deeper into the Ooze
Dave
Marsh
A Direction Home: a Message from Bob Dylan
Ralph
Nader
Gutless, Spineless and Clueless
Flavia
Alaya
Showdown at Sheriff's Plaza
Uri
Avnery
The Gladiators: Sharon's Victory
Chris
Kutalik
The Battle at Northwest Airlines
Greg
Moses
Bill Bennett's Book of Cracker Virtues
Brian
J. Foley
I Gave My Copy of the Constitution to a Pro-War Vet
Nicole
Colson
Hunger Strike at Gitmo
Ray
McGovern
Abu Ghraib is a Command Responsibility
Fred
Gardner
Ricky Williams Takes a Late Hit
Justin
Felux
Save America from Crime: Abort Every White Baby!
Will
Youmans
"Free the P": Hip-Hop for Palestine
Mike
Ferner
What Else Shall We Do?
David
Krieger
The War in Iraq: a Broken Covenant
Agustin
Velloso
Samson Returns to Gaza
Saul
Landau
The Constant Gardener: Serious Cinema
Ben
Tripp
Right Down the Middle
Poets
Basement
Peddibone, Crowell, Engel and Albert
Website
of the Weekend
Holler If Ya Hear Me
September
30, 2005
Mary
Geddry
Why I Marched: They Made My Son Kill
Paul
Craig Roberts
Bush is Cooking Up Two New Wars
Dave
Lindorff
Judith Miller's Strange Voluntary
Jail Time
Gregory
Wilpert
"The Osama Bin Laden of Latin America"
Benjamin
Dangl
"Gringo, Go Home:" an Interview with Orlando Castillo
James
McMurtry
We Can't Make It Here Anymore
T.R.
Johnson
Return to the Ninth Ward
September
29, 2005
Sen.
Russ Feingold
Bush's Iraq War is Weakening America
Carl
G. Estabrook
Obama the Enabler
Ramzy
Baroud
Rhetoric and Reality of War
Dave
Lindorff
What Opposition Party?
Mike
Whitney
Brownie's Comic Opera
Jozef
Hand-Boniakowski
What Noble Cause?
Gary
Handschumacher
Getting Arrested with Cindy Sheehan
Winslow
T. Wheeler
No Leaders in Congress Against This
War: Lame Democrat and Tame Republicans
September
28, 2005
Dr.
Eyad Serraj
Letter from Gaza: What Disengagement
Sounds Like
William
A. Cook
Bush's Security Barrier
Liaquat
Ali Khan
The Invention of Porno Torture
Mike
Whitney
Apartheid Justice in America
Joshua
Frank
Sheehan and the Democrats: Anybody Home?
CounterPunch
Wire
New Orleans Prisoners Abandoned to Floodwaters
Chris
Genovali
Cutting the Bears Out of the Great Bear Rainforest
Linn
Washington, Jr.
White Affirmative Action: How
John Roberts Got to the Top
September
27, 2005
Forrest
Hylton
Political Murder in Puerto Rico: a
Matter for Our Movement
Jason
Leopold
The Decline and Fall of Bill Frist
Jennifer
K. Harbury
Torture is US Policy, Not an Aberration
Ray
McGovern
Torture and Cowardice: Why are American Religious Leaders Silent?
Mike
Ferner
Bringing the War Home: Arrested at the Pentagon
Antony
Loewenstein
When the Truth Comes to Town: What You Can't Say About Israel
in Australia
Harry
Browne
Live from Hollywood: the IRA Disarms
September
26, 2005
Rafael
Rodriguez Cruz
Assassination in Puerto Rico: the FBI
Murders a Legend
Joshua
Frank
Democrats Flee Peace Protests
Lamis
Andoni
The Railroading of Taysir Alony
Mike
Marqusee
Those Pesky "Urban Intellectuals":
Blair, Spiro Agnew and the Antiwar Movement
Rep.
Cynthia McKinney
They Can't Fool Us Anymore
Ron
Jacobs
A Small March for Me, a Giant March
for the Antiwar Movement
Norman
Solomon
The Media and the Antiwar Movement
John
Chuckman
Bush in a Bottle
Paul
Craig Roberts
America is Running Out of Time
September
24 / 25, 2005
Kathy
and Bill Christison
Polluting Palestine: Settlements
& Sewage
Ralph
Nader
Stealing the Moment: How Corporations Cashed in on Katrina
Saul
Landau
The Terrorist Resumé of Luis Posada
Greg
Moses
A Movement Gathers Power on the Sorrow Plateau
Roger
Burbach
Hugo Chavez's Mission
Vijay
Prashad
America's Shame
Laura
Carlsen
After NAFTA
Robert
Fisk
When Man and Nature Conspire to Expose the Lies of the Powerful
Dave
Lindorff
A Gusher Called Katrina: They Fix Oil Prices, Don't They?
Kirkpatrick
Sale / Thomas Naylor
Secession from the Empire: the Middlebury Declaration
Maj.
Anthony Milavic
The US Military and Torture: the View of a Former Interrogator
Brian
Concannon, Jr.
Haiti: the Time for Action is Now
September
23, 2005
CounterPunch
News Service
In Which, Phil Donahue Demolishes
Bill O'Reilly
Diane
Farsetta
Katrina and Right-Wing Think Tanks
Robert
Sandels
Militarizing the Market
Christopher
Brauchli
Bush: the Good Samaritan for Corporations
Alan
Farago
Bird Flu Takes Flight
Dave
Zirin
When Sports & Politics Collided: Redeeming the Olympic Martyrs
of 1968
Maxine
Conant
A Simple Test for Bush
David
Price
Workers Get Hit Twice: Katrina and
Davis-Bacon Profiteering
September
22, 2005
Smith,
Wood, Leas, and Greenfield
Which Way Forward for the Green Party?
a Report from Tulsa
Patrick
Cockburn
Iraqis: This Government has No Authority
Manuel
Garcia, Jr.
Thinking is Religious Freedom
Lucia
Dailey
Trial of the St. Patrick's Four: Day One
Mokhiber
/ Weissman
Are You a Speed Freak?
Russell
D. Hoffman
The Nukes in Rita's Path
Kona
Lowell
God's Hurricane?
Jason
Leopold
GOP Fiscal Policy and Katrina
Website
of the Day
Robert Pollin on the Global Economy
September
21, 2005
Jorge
Mariscal
Military Recruiters: Counselers
or Salesmen?
Linda
S. Heard
Double Standards in Iraq: Basra Brit Jailbreak
Joshua
Frank
NYPD Unplugs Cindy Sheehan
Eric
Ruder
"The Problem in Iraq is the US": an Interview with
Camilo Mejia
Pierre
Tristam
The Struts and Bull Presidency
Dave
Lindorff
The Real Story of the German Elections
Mike
Ferner
Sit Down in DC
Missy
Comley Beattie
Bush's Katrina Bling Bling
Jeffrey
St. Clair
W Marks the Spot
Website
of the Day
New Orleans: Survivor Stories
September
20, 2005
Steve
Breyman
Toxic Gumbo: Katrina and Environmental
Justice
George
Galloway
Et Tu, Greg Palast?
Patrick
Cockburn
What Happened to Iraq's Missing $1 Billion?
M.
Shahid Alam
Gen. Musharraf and Israel: Is Pakistan Selling Out?
Mike
Whitney
The Gitmo Hunger Strikers
Winslow
T. Wheeler
It's Not Rocket Science
Niranjan
Ramakrishnan
Back to the Future: North Korea's Gambit
Paul
Craig Roberts
Will Neocon Fanaticism Destroy America?
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Weekend Edition
October 8 / 9, 2005
New
American Law
Legal Strategies and
Precedents in the Dharfir Case
By JENNIFER VAN BERGEN
[This is Part Two of a two-part
series. The first part discussed
the trial and conviction of Dr. Rafil Dhafir of Syracuse, NY,
for having provided aide to Iraqis in violation of the Iraqi
Sanctions. The second part places his case in a larger context,
discussing DOJ tactics under Bush and illustrating why these
tactics should concern us.]
In terrorist investigations, the Foreign
Intelligence Surveillance Act (FISA) is used to obtain information
about the target without probable cause of criminal activity.
FISA investigations used to be called foreign intelligence investigations.
More recently they have come to be referred to as national security
investigations or terrorist investigations.
These types of investigations are supposed to be carried out
against foreign powers or agents of foreign powers. Their purpose
is to protect us from foreign spies and saboteurs.
Interestingly, although FISA has been used in many recent cases
that resemble Dhafir's, it was not used, according to the prosecution,
in Dhafir's case. This would seem to support the prosecution's
claim that they were not trying Dhafir for a terrorist crime
and never intended to. However, the FBI did not need to use
FISA because Dhafir's acts were not concealed and the multiple
deposits bank were sufficient to obtain a warrant for a wire
taps.
FISA is constitutionally problematic and the DOJ avoided those
problems by not relying on it. They also avoided having to prove
in court that they did in fact think Dhafir was supporting terrorists.
It's smart because the DOJ has certainly been criticized for
over-prosecution of alleged terrorists. This way they can get
a suspected terrorist off the street for a very long time without
having to prove he's a terrorist.
Sixth Amendment Attacks
The DOJ has attacked the Sixth Amendment in a variety of contexts,
here and elsewhere. In the Dhafir case, the attempt to raise
the national security issue post-trial is one way of avoiding
the Sixth Amendment protection. Another prosecutorial tactic
is to obstruct the defense as much as possible. Dhafir's attorneys
claim that the prosecution continually attempted to obstruct
and interfere with the defense by (1) banning the defense team's
local law clerk (a law student) from visiting Dhafir for several
months (defense attorneys live and practice several hundred miles
away), (2) moving Dhafir to another location, where (3) attorneys
could only speak to him through glass on a phone over which guards
could listen.[1]
A direct frontal attack on the Sixth Amendment right to defense
can be seen in the Lynne Stewart case, where Stewart, a NY criminal
defense attorney who represented a convicted terrorist, was indicted
for having issued a press release for her client and distracted
guards I order to maintain confidentiality with her client.
Since her representation of her client was also post-trial, after
her client's conviction, the government claims that Sixth Amendment
rights are not implicated, but the message to attorneys is loud
and clear: "Don't represent criminal defendants!"
During her trial, the government also would not reveal to Stewart
or her attorney whether or not her communications with her attorney
were being "monitored" while she was preparing her
defense. The case is a poster case of Sixth Amendment incursions.
One can only assume Stewart's conviction affected Dhafir's defense.
"Bait & Switch" -- "We don't want to
say that it is what we don't say it is but that in fact is what
we don't say it is and don't want you to say it is."
The prosecution said one thing at trial ("Don't say the
T-word!") and another post-trial ("He's a national
security threat!"). What this meant was that Dhafir's attorneys
could not properly prepare a defense against these post-trial
imputations.
This not only implicates Sixth Amendment concerns, it may violate
the spirit if not the letter of a recent Supreme Court decision.
In United States v. Booker, decided in January of this year,
the Supreme Court decided that the sentence that could lawfully
be imposed on a defendant "must be based on the facts found
by the jury at his trial."[2]
The prosecution quotes the case only to show that the sentencing
guidelines, while no longer mandatory, must still be taken into
account. They say nothing about the central Booker proposition,
probably because they are not asking for a sentencing increase,
according to Olmsted, but only the sentencing maximum for the
offense. The defense emphasizes that Booker means the guidelines
are only advisory. But what the Court actually said was that
sentencing must be based on facts found by the jury at trial.
Here, the prosecution is simply adding new facts not found by
the jury.
The strategy is similar to the bait and switch tactic of con
men. Offer one thing and when it's accepted, switch the item.
Here, the jury was offered to decide one crime violating Iraq
sanctions via money laundering and fraud but in fact the Department
of Justice really wanted to get Dhafir for something else that
it couldn't prove terrorism. So, once the DOJ got the conviction,
they switched to argue sentencing as though they had gotten the
conviction on another crime.
The kind of tactic is used successfully so often by prosecutors
now that defense attorneys barely fight it anymore.
Mixing Laws
This is a long-used strategy. But, because of the increasing
compartmentalization and proliferation of an ever greater and
vaster array of different laws that are supposed to address different
situations, the Department of Justice can increasingly mix these
unrelated laws to obtain verdicts not intended by the original
laws. It's very clever and very dangerous.
For example, conspiracy law can be mixed with a criminal law.
If the person cannot be convicted of the crime itself, the prosecution
may be able to get a conviction on the conspiracy count alone.
Additionally, what is happening more and more is that the proof
of conspiracy is being used to prove the crime. Conspiracy is
usually proven through circumstantial evidence. If there is
not enough evidence that a suspect actually committed a crime
but it can be proven that he agreed to commit it, he may be convicted
of conspiracy. Agreement to engage in a conspiracy is often
proven indirectly. Thus, bank records that show deposits of
under $10,000 may be used to convince a jury of the suspect's
intent to engage in a conspiracy to launder money.
In Dhafir's case, the prosecution charged him with money laundering,
violation of the sanctions, as well as conspiracy to do both,
and various fraud and other claims.
The effect this sort of mixing had in Dhafir's case was pronounced.
Money laundering laws were intended to catch criminals who either
steal money and "launder" it (pass it through several
banks) to obscure it's origins, or create check-writing schemes
to make banks give them money when they don't really have any.
In Dhafir's case, monies he sent to Iraq were kept in an account
there under another individual's name. This had to be done because
if Saddam learned about these monies, people's lives would be
put in jeopardy. And since the purpose of the giving was not
only humanitarian but religious (since one of the tenets of Muslim
giving is to foster connections to Allah) and political (since
religion IS politics in Iraq), the prosecution argued that Dhafir's
intention was to promote religious and political interests that
were anathema to the U.S.
The violations of the sanctions alone would not generally result
in a criminal conviction. These had to be combined with the
money laundering violations in order to stick.
Thus, the effect is, again, that a man who is widely known for
his kindness and generosity to the needy is transformed into
a threat to national security, via the mixing of laws that were
originally intended for quite different purposes.
Parallel & Triangulated Prosecutions & Convictions
A third strategy the DOJ has used increasingly under Bush is
to gain convictions in different cases under numerous unconnected
areas of law that over time weave together to create a whole
new field of possible prosecutions. What is interesting to legal
observers about the Dhafir case is that it was NOT brought as
a case under the material support provisions of the PATRIOT Act,
where most of these kinds of cases have been brought (often in
concert with money laundering charges, in fact).
Why? Because the PATRIOT Act has become widely unpopular, a
trigger for political activism and press coverage. The DOJ would
much rather prosecute in private, without the public knowing
what exactly it is doing, especially where it is doing something
really unkind to a nice man. It would hurt their case for the
public to be alerted.
And most likely the prosecution couldn't prove material support
of terrorism in Dhafir's case, or thought that a jury wouldn't
buy it even if they had the evidence. Several categories of
support in the material support of terrorism provision have also
been ruled unconstitutional by federal courts, largely due to
their overbreadth or vagueness.[3] One of the two support provisions
was thrown out by a federal court in NY in the Stewart case.
While the court did not directly address it, that provision
clearly raises First Amendment concerns. The DOJ may have avoided
relying on those provisions for these reasons.
The Dhafir case marks a new approach to terrorist cases: IEEPA
combined with conspiracy to launder money and other charges.
Or, perhaps it is just a random evolutionary mutation of prosecutorial
zeal.
The upshot, however, is the same. Where convictions are obtained
in two separate combinations of law, all the ground between those
two becomes open to prosecution. Thus, the IEEPA/money laundering
combination creates a parallel track of potential convictions
to the PATRIOT Act/money laundering combination. The range of
human behaviors that can be criminalized between these two sets
of laws is tremendous.
Where convictions can be obtained in three separate tracks, you
have a triangle within which a vast area of potential punishment
becomes possible. I call this triangulation.
This becomes even more important where vastly different laws
are used in vastly different circumstances to obtain similar
types of convictions or for similar constitution-undermining
or government-power-consolidating purposes. Thus, the attempt
to go after Greenpeace. The DOJ indicted members of Greenpeace,
as well as the organization itself, under an obscure late 19th
century law against "sailor mongering." The case was
thrown out. But, if they had succeeded, the DOJ would have been
able to obtain membership lists and financial records of Greenpeace.
Like the "shake the tree" interrogations of Muslims
throughout the country, like the material support indictments,
the Greenpeace indictment would have allowed the government to
go on a huge fishing expedition and to keep whatever landed in
its net.
Once one understands that the government can take sets of facts
about individuals or organizations, separate them out of context
and reassemble them to make them look like just about anything
they want, it becomes clear that government fishing expeditions
are exceedingly dangerous to freedom and democracy.
And considering the breadth of the geometric area in that triangle
in which the government will have established its right and power
to control all who fall, no individual is safe from government
intrusion, prosecution, or simple out-and-out destruction.
Between the right to indefinitely detain presidentially-determined
unlawful enemy combatants and to torture detainees, and the right
to obtain records on peaceful organizations and activists, to
the ability to stop attorneys from representing disfavored clients,
and a doctor from giving money to those in dire need in a foreign
land, where can we stand that we are safe?
Mixing Legal Concepts
This is similar but not identical to mixing laws and establishing
parallel tracks. FISA contains one concept. Criminal laws contain
another. Immigration laws yet another. And IEEPA yet another.
FISA's concept was to protect the nation from spies and sabotage.
This easily translates into protecting against terrorism. But
the trouble is that terrorism is also a crime. The Constitution
requires certain protections for all persons accused of crimes.
FISA evades those protections. So, the concepts have become
combined into a kind of witch's brew that is difficult to separate
out.
Immigration laws apply to those seeking entry into our country.
Yet this is where the terrorism definitions are primarily found
in our laws. Thus, some of the immigration provisions get mixed,
again, with criminal laws.
IEEPA is meant to give the president authority to, in effect,
boycott or blockade a country. Yet, as shown in Dhafir's case,
it can be mixed with a criminal statute for a very different
purpose.
Loss of Reference to Democratic Values
References to international human rights and humanitarian
laws, including those mentioned earlier: the Nuremberg Principles
and the defense of necessity, as well as treaties like the Geneva
Conventions, the Convention Against Torture, etc., illustrate
what has been lost by the Justice Department in its efforts to
defend the security of our country. These principles are the
same as those found in the Bill of Rights but they are increasingly
being overridden by overzealous prosecutors and an administration
that considers such precepts "quaint" as former White
House Counsel (and current Attorney General) Alberto Gonzales
called the Geneva Conventions. These principles are also found
in the UN Declaration of Human Rights, the Convention Against
Torture, and the International Covenant of Civil and Political
Rights, all of which the U.S. has endorsed or adopted.
Americans need to know about and recall these principles. We
need to remember that neither the U.S. Constitution nor international
human rights laws contain mere theoretical ideals. We must stand
by democratic ideals or our nation falls.
Jennifer Van Bergen, J.D. is author of "The Twilight
of Democracy: The Bush Plan for America," a constitutional
analysis for the general public of the PATRIOT Act and other
legislation and executive orders. She writes commentary frequently
for Counterpunch and is a reporter for Raw
Story . She can be reached at jvbxyz@earthlink.net.
DHAFIR
WEBSITES:
http://www.jubileeinitiative.org/FreeDhafir.htm
http://www.dhafirtrial.net/
[1] Dhafir could have met with
his attorneys if he had consented to a whole body search which
the prosecution knew would be a severe violation of Muslim practices.
Lack of knowledge of Islamic practices cannot be attributed
to the prosecution since, according to Dhafir's supporters, Olmsted
studied Islam in preparation for the trial.
[2] http://www.ussc.gov/Blakely/04-104.pdf.
[3] See Jennifer Van Bergen,
"In the Absence of Democracy: The Designation and Material
Support Provisions of the Anti-Terrorism Laws," 2 Cardozo
Public Law, Policy & Ethics Journal 107 (2003).
CLARIFICATION
ALEXANDER COCKBURN, JEFFREY
ST CLAIR, BECKY GRANT AND THE INSTITUTE FOR THE ADVANCEMENT OF
JOURNALISTIC CLARITY, COUNTERPUNCH
We published an article entitled
"A Saudiless Arabia" by Wayne Madsen dated October
22, 2002 (the "Article"), on the website of the Institute
for the Advancement of Journalistic Clarity, CounterPunch, www.counterpunch.org
(the "Website").
Although it was not our intention,
counsel for Mohammed Hussein Al Amoudi has advised us the Article
suggests, or could be read as suggesting, that Mr Al Amoudi has
funded, supported, or is in some way associated with, the terrorist
activities of Osama bin Laden and the Al Qaeda terrorist network.
We do not have any evidence
connecting Mr Al Amoudi with terrorism.
As a result of an exchange
of communications with Mr Al Amoudi's lawyers, we have removed
the Article from the Website.
We are pleased to clarify the
position.
August 17, 2005
|
Coming in the Fall
from CounterPunch Books!
The Case
Against Israel
By Michael Neumann
Click Here to Advance Order Philosopher
Michael Neumann's Devastating Rebuttal of Alan Dershowitz
WHAT'S
INSIDE
Grand
Theft Pentagon:
Tales of Greed and Profiteering in the War on Terror
by Jeffrey St. Clair
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