Judge rules closed hearings unconstitutional

By Henry Weinstein

May 30— A federal judge in New Jersey ruled Wednesday that the government’s policy of closing deportation hearings for individuals targeted in its massive terrorism probe is unconstitutional.

The ruling by US District Judge John W. Bissell is the second by a federal jurist that sides against the government concerning the thorny issue of closed hearings, but it is more sweeping because of the large number of detainees still held in New Jersey jails.

“This is an enormous decision,” said Lee Gelernt, a senior staff attorney at the Immigrants’ Rights Project of the American Civil Liberties Union.

The roundup of more than 1,200 immigrants and the subsequent secret hearings have been a prominent part of the government’s reaction to the Sept. 11 terrorist attacks on the World Trade Center and the Pentagon. The fate of many of those taken into custody remains unknown.

Under Bissell’s order, the government no longer can close those immigration proceedings based on a Sept. 21 directive issued by chief US Immigration Judge Michael Creppy. If the government wants to close a portion of any such hearing in the future, it may do so only on a case-by-case basis where the government has specified concrete evidence demonstrating a need for closure.

The government is expected to appeal the ruling, although no Justice Department lawyer was immediately available for comment Wednesday.

The government already is appealing a similar ruling made Apr. 3 by a federal judge in Detroit. That case concerned only one detainee, and the government’s effort to get an emergency stay in that case has been rejected by the US 6th Circuit Court of Appeals, which will hear the full case Aug. 6.

Judge Bissell said a preliminary injunction was “an extraordinary remedy,” but he said the plaintiffs -- three New Jersey newspapers -- had demonstrated a reasonable probability of success in a full trial concerning the issue.

He said the plaintiffs clearly would be irreparably harmed -- one of the key standards for obtaining a preliminary injunction -- if they could not attend the hearings.

Although there are no precise figures because of government secrecy, there have been reports that the government detained more than 1,200 people in roundups after the terrorist attacks and that 327 of the detainees -- the largest concentration anywhere in the country -- were held in jails in Hudson and Passaic counties in New Jersey.

Gelernt and other sources said there still are 104 people being held by the government in the post-Sept. 11 probe -- the bulk of them in New Jersey.

Gelernt said hundreds of the detainees have been deported, without ever having a public hearing.

“We are finding out that many of the detainees have waived all their rights, including their rights to further review,” Gelernt said. “Where an individual’s liberty is at stake and they are unrepresented, there has to be public scrutiny of the process to ensure that the government is complying with the Constitution,” said Gelernt, who worked on the case along with the Center for Constitutional Rights and a New Jersey law firm -- Gibbons, Del Deo, Dolan, Griffinger & Vecchione.

Bissell acknowledged that the government might have legitimate reasons to close a deportation hearing of a suspect in the wake of the “dastardly” attacks “and the continuing threat of their repetition.” However, the judge said that the blanket policy to close all these hearings, put into effect by Creppy’s Sept. 21 memo, clearly ran afoul of the Constitution.

The judge cited a long line of US Supreme Court decisions that court hearings in the US are presumptively open. He said deportation hearings are no exception. In fact, Bissell noted, that as long ago as 1903, the Supreme Court had ruled that there are due process rights when the government seeks to remove a resident alien.

Source: Los Angeles Times

US students face random drug testing

By Lawrence Donegan

San Francisco, California, June 2— Twenty-seven million schoolchildren are facing the prospect of random drug testing after a landmark court case described by self-styled religious fundamentalist “drug warriors” in the United States as their greatest victory. It is a startling example of the ideological shift in American politics since George W. Bush moved into the White House.

The Supreme Court is expected within the next few days to rule against a teenager from the Midwest who was forced to undergo a drug test when she signed up to sing in the school choir. Lindsay Earls, a former pupil at Tecumseh High, Oklahoma, had to urinate into a cup while a teacher listened outside the bathroom stall. She said the test -- which proved negative -- was physically degrading and a gross infringement of her civil rights.

“I thought it was real intrusion into my privacy,” says Earls, now 19 and a student at a top university. “If I’m not taking drugs, then I shouldn’t have to prove myself innocent.”

Her case went before the court earlier this year, where the US Solicitor General’s office, headed by Bush ally Ted Olsen, startled — and delighted — right-wing anti-drug groups by arguing there was no constitutional bar to drug testing every pupil in the state system.

“Five years ago we were going nowhere, now we have the government on our side. Random testing for all pupils is a done deal,” said DeForest Rathbone, who has been fighting a 20-year “drug war” at the head of the National Institute of Citizen Anti-Drug Policy. “Thanks be to almighty God for coming on to our side and helping us protect the kids from drugs.”

Despite his low-profile position, Olsen has been leading the rightward march of the Bush administration, setting out the government’s ideological position on a range of issues — from abortion rights to gun laws — where he has quietly supported causes previously considered beyond the pale even by Republican administrations.

Currently, only pupils taking part in athletic activities can legally be made to undergo random drug testing, but Tecumseh High was one of several schools that unilaterally decided to test participants in all extra-curricular activities, such as chess and debating.

Earls’s legal challenge has been backed by Graham Boyd, a lawyer for the American Civil Liberties Union, who argued that a random drug-testing program was both an infringement of constitutional rights and of dubious worth in fighting the spread of drug use.

“If drug testing becomes rites of passage for an entire generation of students, then that same generation is going to enter adulthood with lower expectations of the privacy they should be entitled to,” Boyd said yesterday. He added that there was no evidence that random testing in other sectors, such as the workplace, reduced drug use. Testing in schools might force teenage drug users to switch from marijuana — which remains detectable in the body for weeks — to harder drugs like crack cocaine, which leaves the bloodstream after 24 hours.

Source: The Observer (UK)

Cops who killed unarmed motorists won’t be charged

By Abdon M. Pallasch
and Fran Spielman

Chicago, Illinois, May 29— It was bad police work, but it wasn’t criminal conduct, prosecutors said Tuesday.

The police officers who shot and killed unarmed motorists LaTanya Haggerty and Robert Russ in traffic stops hours apart three years ago will not be charged, Cook County State’s Attorney Dick Devine and US Attorney Patrick Fitzgerald announced.

“There was no evidence to show criminal intent on the part of the officers,” Devine said of officer Serena Daniels’ decision to shoot Haggerty and officer Van Watts’ shooting of Russ. Watts said Russ had grabbed Watts’ hands and gun.

Cries of protest went up immediately as the Rev. Paul Jakes and activist Wallace “Gator” Bradley held court outside Devine’s office.

“This is a slap in the face to the families,” Jakes said.

According to Devine, Officer Daniels saw a “flash” in Haggerty’s hand that turned out to be a cell phone. Daniels thought it was a gun. She shot Haggerty, realized her mistake, ran to her and said, “I’m sorry. I didn’t mean to. I thought you had a gun,” Devine said. “Officer Daniels knew she had made a poor decision.”

Watts had a reasonable belief he was in danger when Russ began to pull him into his car through a back window, Devine said. Attorneys for Russ’ family say Russ never pulled him into his car and Watts invented that story.

“In order to get around the fact that Russ’ fingerprints are not on the gun, they claim Russ grabbed the officer’s hands,” attorney Donald Shapiro said. “Then how does a bullet hole go through Russ’ palm if Russ is holding the officer’s hands? The reality was that Russ was holding up his hands in a self-defensive posture. The officer ... smashed the back window with a tire iron. When Russ turned around in a self-defensive posture, the officer just freaked and fired.”

Shapiro said Devine and Fitzgerald never asked him for any evidence he has compiled, including statements from witnesses contradicting Watts’ account.

City of Chicago attorneys paid Haggerty’s family $18 million to drop a civil suit against the city.

Devine ruled out charges of “official misconduct,” saying that is only used as a companion to more serious charges.

Daniels was fired after the incident and now serves in the U.S military, according to her mother.

“My brother was unarmed and I know my brother did not grab that gun either, and nobody is paying for it,” Chris Russ said. “It would have made me feel better to know we have a system where bad guys are actually prosecuted whether they are police or not. But this is the real world. I didn’t expect it anyway.”

Watts received a 15-day suspension for shooting Russ.

Source: Chicago Sun-Times

NATION BRIEFS

Ban proposed on ‘Patriot Act’
in Cambridge, MA
A coalition of peace, human rights, and women’s groups have called on the city of Cambridge, MA to protect its residents from the USA Patriot Act, which gives the government broad access to private phone and internet lines, as well as medical, financial and education records -- without a court order.

The resolution, which will come before Cambridge City Council later this month, proclaims that civil liberties are “now threatened by the USA Patriot Act,” and promises to “affirm[the city’s] commitment to embodying democracy, …defending human rights and civil liberties now under siege.”

If passed, the resolution would effectively ban Cambridge employees from complying with the act, except when forced to do so directly from a federal law enforcement agency, such as the FBI. The distinction is that city officials would not voluntarily cooperate with the federal government by handing over voting records, demonstration permits, or library records, for example.

As many as 500 residents have signed a petition supporting the resolution.

Similar proposals have passed in other Massachusetts towns such as Amherst, Leverett, and Northampton. (The Boston Phoenix)

Predominantly Latino schools hardest
hit by teacher shortage
Schools with large Hispanic populations are hit hardest by teacher shortages that researchers predict will require up to 2.7 million new public school teachers nationwide this decade, says a report by the Denver-based Quality Education Data, Inc.

The study of elementary schools found that those with mostly Hispanic students had more unfilled teaching positions, nearly double that of schools with mostly Black students and triple predominantly white schools. (USA Today)

May Day medic serving 6 months
Sarah Roberts, a street medic in the Long Beach, CA 2001 May Day protest, was sentenced to six months in jail and a $1000 fine for “unlawful assembly” and “wearing a mask with the intent to commit a crime.”

Roberts was one of almost 100 protesters arrested after being brutalized by the Long Beach police last May. Her sentence began immediately.

This sentence comes at a time when activists are pushing a bill that would limit the penalties for non-violent civil disobedience in the California Senate. (Julie Roberts)

Bush accused of pushing policy to
further his brother’s interests
President Bush was accused May 31 of selectively tailoring environmental policy to help his younger brother Jeb Bush get re-elected as Gov. of Florida after the President proposed a $235 million plan to thwart oil and gas exploration programs in the Everglades and the Gulf of Mexico.

The President visited his brother in Florida on May 31 to announce the contentious environmental plan, which will divert $115 million of federal cash to Chevron and two other giant oil companies in exchange for a clutch of oil and field leases.

A further $120 million will be paid to the Collier family, one of Florida’s biggest land developers, to stop them drilling in the Big Cypress National Preserve and other environmentally sensitive areas.

The President’s decision to support this controversial policy is just the latest in a long line of attempts to shore up support for his brother Jeb in the upcoming gubernatorial election in Florida, which is hotly contested.

The President has visited Florida nine times since taking office and has participated in a number of fundraisers for his brother, which garnered millions of dollars for the younger Bush’s campaign. (The Times, UK)

Lawyers contest prisoners’ treatment
at Camp X-Ray
A civil rights lawyer who has fought a record number of police brutality cases, is taking on the US government on behalf of the prisoners being held in Guantanamo Bay.

In the case that will be heard in Los Angeles next month, Stephen Yagman will argue that the US government is violating its own and international laws by continuing to hold the prisoners without charge.

Yagman has put together a coalition of experienced civil rights lawyers and academics, including former US Attorney General Ramsey Clark.

Yagman is best known for the many lawsuits he has won against the Los Angeles police department in brutality cases.

Yagman is demanding three things from the government: that they identify the prisoners, make the reasons for their detention known, and that the prisoners be allowed their day in a US court.

These demands, said Yagman, are “not very radical. Is the US government free to violate the law, immune from accountability in any court? The answer must be no,” Yagman added. (Guardian, UK)

The Judi Bari bombshell

Judi Bari holds a picture of her car after the bombing.

By A.C. Thompson

May 29 – All the evidence in the Judi Bari bombing trial has been presented, and still the questions linger. It is still unknown who planted the homemade, nail-studded pipe bomb in Bari’s car. And there is still no legally conclusive proof that law enforcement officials tried to frame Earth First! activist Bari and her associate Darryl Cherney.

At press time, the jury, which began deliberating May 17, had yet to reach a verdict, and attorneys for the FBI and the Oakland Police Department (OPD) were still fighting to get the case dismissed.

During the six-week trial, some fairly blockbuster revelations leaked out – and for the most part, the daily papers have ignored them.

Bari and Cherney were driving through east Oakland, Ca. in May 1990 when a bomb exploded in their car. The injured pair were prominent figures in the Earth First! movement, a loose-knit, nominally leaderless group of shit-disturbing environmentalists. Oakland cops – working with the FBI– quickly arrested the duo. Cherney and Bari, the cops claimed, had accidentally blown themselves up while transporting their own bomb.

“We’re assuming the device was placed in the car by the occupants,” one Oakland detective told the San Francisco Examiner at the time.

The Examiner painted Earth First! as a band of deranged “ecoterrorists.” The New York Times ran a front-page piece on the incident. Then, a few months later, with Earth First!’s reputation in tatters, the charges were quietly dropped for lack of evidence.

The cops never busted the real bomber – a fact that’s distressed many for the past 12 years.

To Cherney and Bari it smelled like a classic COINTELPRO-type setup, the kind of thing J. Edgar Hoover did to the Black Panthers. They figured the feds and local cops had jumped at the chance to arrest them – and link them to terrorism in the media – even though the evidence was shaky at best. In 1991 the two Earth First!ers hit back, suing the FBI and the OPD, charging the agencies with fabricating evidence, giving false testimony, and collaborating in a smear campaign.

Last month, after more than a decade of legal tussles – and five years after Bari died of cancer – Cherney and Darlene Comingore, the executor of Bari’s estate, finally got the suit in front of a jury.

Testimony in the courtroom of US District Judge Claudia Wilken lifted the lid on some amazingly suspicious and possibly criminal behavior on the part of the FBI and the OPD.

First the agencies were forced to admit that information included in two key search warrants was bogus. The only real question was which agency had lied. Later testimony revealed that Oakland cops raided Bari’s house even after she and Cherney were exonerated by an FBI bomb expert. Then there was the mysterious disappearance of 57 FBI documents related to the case.

On top of the bungling or subterfuge – it’s tough to say which – the trial unearthed another fairly stunning fact: a shadowy OPD unit kept tabs on scores of local dissidents and shared the information with the feds. The G-men, for their part, compiled a database of some 600 people Bari and Cherney had called on the phone.

On May 24, 1990, right about noon, Bari was driving her car when an improvised explosive – a foot-long, two-inch-diameter pipe filled with flash powder and covered with nails – detonated, ripping a gaping hole through the floorboards, buckling the front doors, and crumpling the roof.

Bari was left permanently disabled and Cherney, who’d been riding in the passenger seat, was less injured and treated at the hospital for lacerations and a scratched cornea, then released.

Bari and Cherney had driven down from the rural North Coast to lay the groundwork for “Redwood Summer,” a campaign of civil disobedience to slow the breakneck, ecosystem-ravaging pace of redwood logging in Humboldt County.

Bari, a carpenter by trade, was a hell of an organizer. And in 1990 she was driving the timber industry in northern California nuts. Earth First! had brashly burst on the scene a few years before with “no compromise” tactics, blockading sawmills and chaining themselves to bulldozers – aggravating both loggers and law enforcement. Feeling besieged, some lumberjacks and mill workers went after Bari, one of the most visible Earth First!ers. She received several written death threats and was nearly killed in 1989 when a timber truck ran her car off the road.

Within minutes of the 1990 bombing, both the FBI and the OPD were combing over the crime scene. Special Agent Timothy McKinley was the first G-man there, followed by FBI bomb analyst Frank Doyle and others. There was “a large hole in the floorboard of the car, underneath the [front] seat and to the rear,” Mckinley, who’s now retired, told the court.

They quickly decided the bomb had been resting on the floor behind the driver’s seat when it went off and that Bari and Cherney must have been aware of the explosive, that it must have belonged to them.

Hours after the explosion Bari and Cherney were taken into custody by Oakland cops. A morphine-addled Bari awoke from surgery to find two officers looming over her hospital bed.

Three weeks later an FBI lab technician would exonerate Bari and Cherney, saying the bomb had been hidden beneath Bari’s seat.

From day one, Bari and Cherney argued the bomb’s location under Bari’s seat would’ve been obvious to anyone. As Cherney said last week, “How do you blow up the front end of a car with a bomb that’s placed in the back of the car?” The FBI and the OPD, they maintained, had ignored the clear and convincing evidence in a quest to jail them and slander their cause.

Digging through the car on the day of the blast, Doyle uncovered another crucial clue he claimed would link Bari and Cherney to the bomb.

The explosive had sent a fusillade of nails rocketing through the car.

Inside the car, Doyle found a bag of unused nails. Those nails, he claimed, were identical to the nails in the bomb. Obviously, Doyle concluded, Bari and Cherney had built the anti-personnel device.

There was just one problem: the nails didn’t match at all. The “clue” was bogus.

In truth, the nails in the bag – short, fat roofing nails and thick, long framing nails, which were not unusual cargo for a person who made her living as a carpenter – didn’t even remotely resemble the nails used in the bomb.

This phony evidence ended up in a search warrant used to rifle through Bari’s Redwood Valley residence. In a sworn affidavit, Oakland police sergeant Robert Chenault laid out the evidence implicating Bari, which provided the legal justification for the search. Chenault played up Doyle’s discovery of the “identical” nails in the May 25 affidavit.

Today, Doyle – now a private antiterrorism consultant – denies ever claiming to have matched the nails. “I never made the statement that the nails were identical,” Doyle said on the stand. “Quite the contrary, those nails were not similar, and I never said they were.”

Chenault, on the other hand, insists Doyle fed him fake evidence. “Is it correct to say that Doyle almost dictated to you what to say [in the affidavit]?” asked Bloom, the plaintiffs’ attorney.

“Yes,” Chenault answered.

On June 14, three weeks after the crime, FBI lab technician David R. Williams flew out from Washington to inspect the mangled auto.He’d already analyzed bomb fragments. Now he scoped the car. The explosive, Williams told his FBI colleagues and the OPD detectives, had been hidden under Bari’s seat.

He’d also reached an additional, quite salient, conclusion about the incident. In trial testimony Williams said he told Doyle and other case investigators that the improvised explosive was a time bomb and had “functioned as designed.”

The implication was clear: Bari and Cherney were victims of an assassination plot, not plotters of an assassination.

Still, the OPD didn’t dismiss the charges for another month, and FBI records indicate federal agents were snooping on Bari and Cherney as late as November 1991.

If Williams is telling the truth, it sure looks like his fellow officers at the FBI and the OPD were bent on railroading Bari and Cherney – even after he’d discovered forensic evidence clearing them. But Oakland detective Michael Sitterud gave the court a very different story.

During the May 25 raid on Bari’s house, Chenault seized “a partial box of finishing nails” – again, not a surprising find in the home of a carpenter. The OPD shipped the nails to Williams for comparison to the bomb nails.

On the stand Sitterud was unequivocal: Williams met with the OPD and said he’d conclusively connected the nails taken from Bari’s house to the bomb. In fact, Sitterud included Williams’s supposed forensic findings in a June 25 search warrant affidavit used to authorize a second raid on Bari’s house.

But the nails turned out to be another false clue – and in the end there was no evidence linking the Earth First!ers to the construction of the bomb.

In court Williams denied ever making a meaningful link between the two sets of nails. So once again, the FBI and the OPD couldn’t keep their stories straight.

The OPD had been spying on Earth First! and, it turns out, a lot of other groups, long before the bomb went off. In fact, evidence at the trial showed the OPD was operating a secret intelligence unit that kept tabs on law-abiding people who happened to be members of certain political groups.

In 1990, Oakland cop Kevin Griswold was one of two officers assigned to the department’s intelligence unit. On the stand Griswold admitted to keeping files on 300 activist groups, including 20 environmental outfits.

Later, while probing the car bombing, the bureau cast a wide net. The feds used phone records to compile a list of 634 numbers Cherney and Bari called during the spring of 1990, said Agent Patrick Webb under questioning. “It’s a standard investigative technique,” he told the jury.

The FBI used the numbers to question dozens of Bari/Cherney associates, building dossiers on activists and organizations, including the Center for Constitutional Rights, a liberal New York legal foundation.

The feds admitted they still have files on those individuals and groups, although nobody on the list has ever been charged with any crime related to the bombing.

Other FBI case files, however, seem to have vanished into the ether. When Cherney and Bari filed suit, they subpoenaed the entire mountain of paperwork the FBI had compiled on the bombing. As the material filtered in, it quickly became clear something was wrong. The 600-odd documents were all meticulously numbered. From the sequence of numbers, it appeared some 60 documents had just disappeared from the files.

The Earth First! lawyers contacted the FBI. The bureau coughed up a few more documents. But at trial 57 documents still couldn’t be accounted for. The FBI described it as a benign case of accidental misnumbering.

The trial showed that, at the very least, the FBI and the OPD had so badly bungled the bomb investigation that nothing the two agencies came up with could be trusted. The evidence suggested it’s at least possible, if not likely, that one or both of the police agencies took advantage of the attack that almost killed Bari to attempt to make Earth First! look like a dangerous gang of bomb-wielding nuts.

Outside the courtroom last week, Cherney sat on the polished hallway floor, looking spent, like a boxer trying to survive round 12. Still, as always, he had a quip at the ready.

“The good news is that all this stuff came out,” Cherney said. “The bad news is these people are running the country.”

On May 2, the second day of deliberations, jurors requested copies of the First and Fourth Amendments to the Constitution, which the defendents are accused of violating. Federal and Oakland defense attorneys objected. Judge Wilken overruled and read the amendments to the jury, but would not give them a written copy to take back to the deliberation room.

Commenting ont the incident, Cherney quipped, “their agents obviously haven’t read the Constitution, so why would they want anyone else looking at it?”

As of 2pm on June 5 the jury, after 13 days of deliberations, still had not reached a verdict and announced a schedule that would run through at least the end of the week.

Source: San Francisco Bay Guardian
Additional information: San Francisco Indymedia