Photo: Stephanie Swartz, iStockphoto

WASHINGTON — The Supreme Court dealt a harsh blow on Monday to victims of abuse by U.S. officials during the “war on terror.” The court announced it would not review a federal appeals court ruling that dismissed a lawsuit by four British citizens who claim they were wrongly arrested, detained and mistreated by American officials at the U.S. detention facility at Guantanamo Bay, Cuba. The U.S. Circuit Court of Appeals in Washington, D.C., had ruled in April that government officials were entitled to “qualified immunity” from suit because it wasn’t clear at the time that abusing Guantanamo prisoners at was illegal.

That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who’ve been released from the Guantanamo prison, many of whom were subjected to so-called “enhanced interrogation techniques.” Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and “waterboarding,” or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.

The court’s decision not to review the Rasul case does not mean it agrees with the lower court’s decision. But it leaves the court of appeals’ ruling in effect and places a stumbling block in the path of Guantanamo detainees who claim they have been abused in U.S. custody and seek redress in court.

“When the court decides not to hear a case, it doesn’t say anything about the merits,” said Stephen Vladeck, professor at American University’s Washington College of Law and expert on national security and constitutional law. “But it leaves intact a fairly sweeping opinion by the D.C. Circuit — one that I think will be hard to overcome for any future plaintiffs suing based on abuse that allegedly occurred at Guantanamo.”

Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. “This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point,” he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they’re often still suspected of terrorism and unable to secure employment.

At issue is an aspect of the D.C. Circuit’s opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, “it wasn’t clearly established in the law that they were entitled not to be tortured or subjected to religious abuse,” said Kadida . Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.

The D.C. Circuit’s ruling “reads out the good faith requirement in qualified immunity,” said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. “The whole notion of qualified immunity is that officials acting in good faith should have some protections.” But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws. The Rasul decision, and the Supreme Court’s refusal to review it, he said, “makes it hard to know, what’s the law for next time?”

In fact, the D.C. Circuit’s latest Rasul opinion (the appeals court has ruled twice in this case) suggests in non-binding language that Guantanamo detainees have no constitutional rights other than the right of habeas corpus (the right to challenge the lawfulness of government detention), which the Supreme Court had already ruled applied to Guantanamo detainees. That finding cleared the way for the Obama administration, like the Bush administration before it, to argue that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The high court today refused to weigh in on that issue. “I was hoping that the Supreme Court wouldn’t allow the last word on torture at Guantanamo to be that [detainees] have no rights and if they do, nobody knew at the time,” said Lewis. “That’s very disappointing.”

The D.C. Circuit opinion is not binding on courts in other parts of the country, however, which still could rule differently on some of these issues. A federal court in San Francisco, for example, ruled in June that Jose Padilla, an American citizen imprisoned as an “enemy combatant” without charge at a U.S. Naval brig in South Carolina, can sue former Justice Department lawyer John Yoo , whose legal opinions during the Bush administration approved the harsh and abusive treatment Padilla received. The court in that case denied Yoo’s claim to qualified immunity. That case is now on appeal in the Ninth Circuit.

Qualified immunity is hardly the only obstacle to holding government officials liable for torture and other abuse, however. Other cases, brought on behalf of former prisoners who were deemed “enemy combatants,” are barred by the Detainee Treatment Act of 2005, in which Congress stripped the courts of jurisdiction over any lawsuits complaining about the treatment of enemy combatants. (At least one case, Al-Zahrani v. Rumsfeld, is now challenging the constitutionality of that law.)

Then there’s the lawsuit brought by Canadian citizen Maher Arar, arrested while changing planes in New York and sent to Syria by U.S. officials, where he claims he was interrogated under torture. That case was recently dismissed by the Second Circuit Court of Appeals in New York on the grounds that “special factors” — such as potential implications for national security and foreign relations — counseled against allowing the case to proceed. (Arar could still seek review in the Supreme Court.)

Other cases have been dismissed on similar grounds. “The more structural, fundamental problem is where the cause of action comes from,” said Vladeck , referring to the basis for a victim’s right to sue. Although in some cases federal courts will imply a right to sue government officials for a constitutional violation, “the Supreme Court over the last 20 years has been incredibly hostile to damages suits against federal officers,” said Vladeck.

In its latest move, the Supreme Court’s refusal to consider whether government officials can reasonably claim they didn’t know it was unlawful to torture prisoners in U.S. custody reinforces the viability of that argument for the future.

The court’s inaction also effectively ends the four British plaintiffs’ quest for a remedy — and likely stymies similar actions from many more former Guantanamo prisoners who hoped for official acknowledgment or compensation for what they endured. “Nothing legally would stop the executive branch or Congress from conceding that mistakes were made and these guys are entitled to some kind of reparations,” said Vladeck. “But I cannot imagine that’s going to be very politically feasible.”

Khalid Sheikh Mohammed

WASHINGTON — Rep. Michele Bachmann and the National Review’s Andrew McCarthy teamed up with other House Republicans on Thursday on the front steps of the Supreme Court to take a shot at President Obama and Attorney General Eric Holder for deciding to try Khalid Sheikh Mohammed and the other alleged co-conspirators of the Sept. 11 terrorist attacks in U.S. federal courts.

“The decision to try Khalid Sheikh Mohammed in New York City and give him all the benefits and perks reserved for American citizens is a slap in the face of the 9/11 victim’s families, the American people, and the men and women who risk their lives to defend our liberties each and every day,” said Bachmann in a statement released after the press conference.

Curiously, many of those protesting the accused terrorists’ trial in federal court repeatedly refer to a federal court trial and its attendant due process rights as being “reserved for U.S. citizens.” At a rally last weekend in New York City, for example, protesters and speakers repeatedly objected that the 9/11 defendants were being given “the same rights as U.S. citizens.”

In fact, the “right” to be prosecuted in a U.S. federal court has never been “reserved” for U.S. citizens at all. It’s historically been a “right” accorded to anyone who commits a crime on U.S. soil. Thus everyone from a U.S.-born citizen to an illegal alien who commits a federal crime in the United States gets tried in federal court. Although the government has just recently created special military commissions to try some crimes against U.S. military targets abroad, we don’t normally create new courts or legal systems to try non-citizens who commit mass murder, mail fraud, or any other crimes that might land them in federal court.

“If President Obama admits that we are a nation at war, then we should act like one,” continued Bachmann in her statement. “Justice for the 9/11 attackers should be swift and conclusive, something that won’t be done when KSM exploits the abundant appeals and legal loopholes he has been inexplicably awarded as a foreign combatant,” said Bachmann.

Bachmann didn’t mention that there have been only three military commission trials since they were created by President George W. Bush because detainees challenged the constitutionality of the military commissions — and won.

The proceedings that began last week under the supposedly new-and-improved military commissions signed into law by President Obama already suggest that we’ll be seeing more of the same. ]]> http://minnesotaindependent.com/51643/bachmann-trying-911-mastermind-in-u-s-is-slap-in-the-face-of-victims/feed 5 http://minnesotaindependent.com/51474/franken-challenges-napolitano-on-imprisonment-of-asylum-seekers http://minnesotaindependent.com/51474/franken-challenges-napolitano-on-imprisonment-of-asylum-seekers#comments Wed, 09 Dec 2009 17:28:28 +0000 Daphne Eviatar http://minnesotaindependent.com/?p=51474 WASHINGTON — Sen. Al Franken asked Homeland Security Secretary Janet Napolitano at the Senate Judiciary Committee hearing this morning why it is that Immigration and Customs Enforcement is imprisoning people coming to the United States seeking asylum from…]]>

WASHINGTON — Sen. Al Franken asked Homeland Security Secretary Janet Napolitano at the Senate Judiciary Committee hearing this morning why it is that Immigration and Customs Enforcement is imprisoning people coming to the United States seeking asylum from persecution abroad.

“A 2005 congressionally authorized bipartisan commission found that it wasn’t appropriate to detain asylum seekers in prisons,” said Franken. “That was four years ago. Now they’re still being detained in prison, put in jumpsuits and shackles. They’re even put in solitary confinement,” he said. “They aren’t criminals.”

Napolitano responded that part of the agency’s detention reform process, still being implemented, is “to really do a risk analysis for every individual who comes into our system.”

Franken persisted. “There’s a credible fear interview. Very often they continue to be detained even after it’s been determined that they have a credible fear if they go back.”

Napolitano did not deny the problem. “We’re working with officers to increase the speed by which they are paroled into the country if there has been a determination of credible fear.”

According to a recent report on the detention of asylum seekers by Human Rights First, the U.S. detention system for asylum seekers “is inconsistent with international refugee protection and human rights standards.” ]]> http://minnesotaindependent.com/51474/franken-challenges-napolitano-on-imprisonment-of-asylum-seekers/feed 0 http://minnesotaindependent.com/46638/democrats-divided-on-patriot-act http://minnesotaindependent.com/46638/democrats-divided-on-patriot-act#comments Thu, 08 Oct 2009 13:50:07 +0000 Daphne Eviatar http://minnesotaindependent.com/?p=46638

Sen. Patrick Leahy. Photo: WDCpix

Republicans and Democrats have been sniping about the USA Patriot Act ever since Congress passed the law in the wake of the September 11 terrorist attacks to try to forestall another such disaster. But now, it’s the Democrats who are sniping among themselves about it. While some lawmakers, like Sens. Russ Feingold and Dick Durbin, have insisted that Congress must amend the law to rein in the FBI’s powers to snoop into innocent private activities, other Democratic lawmakers, such as Senators Dianne Feinstein and Patrick Leahy, have resisted significant reforms.

Three provisions of the law will expire by the end of this year if they’re not renewed, and have been the subject of recent hearings. Those are: the “roving wiretap” provision, which allows the government to tap  phones and other electronic devices used by any person suspected of involvement in terrorism; section 215 of the Patriot Act, which allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation; and the so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.

The other controversial provisions include the FBI’s authority to issue National Security Letters, or NSLs, which seek a broad range of information from businesses about their customers but do not require a warrant or any other court order; and the “sneak and peak law”, which allows the FBI to search a suspect’s home without informing the target that they’ve been searched.

Civil liberties advocates insist these provisions are all too broad as currently written, and allow the FBI to abuse its authority to conduct wide-scale “data mining” of the general population, searching innocent people’s records and personal information while the government tries to root out wrongdoing. Because in many cases it’s not clear how the government is using its broad authority and who gets access to the information, privacy advocates worry that the government could retain such information and use it in ways unconnected to terrorism investigations.

A 2007 report from the FBI Inspector General concluded that the FBI had issued almost 150,000 NSL requests between 2003 and 2005, often collecting information about people not even suspected of having done anything illegal. The Inspector General also found that the FBI’s record-keeping was so poor that it often didn’t know how many letters it has issued, and requested information it wasn’t entitled to receive.

Advocates worry that many sections of the Patriot Act allow similar abuses. “The concern is that the changes the Patriot Act made were such that so long as the FBI agent certifies that the information they’re seeking is relevant to a terror investigation, they can get it,” explained Farhana Khera, Executive Director of Muslim Advocates, which recently sued the government for more information about FBI surveillance practices. “We argue that’s way too broad. It should be tied to a suspected terrorist or terrorist activity.” The FBI’s current authority “has unleashed concerns about the FBI getting access to data on literally millions and millions of Americans,” she said.

Advocates for Muslim-Americans also worry that the laws are being used to target and harass law-abiding American muslims, landing them on no-fly lists, preventing them from getting hired for federal jobs, or deterring them from contributing to legal charitable organizations that assist needy Muslims in other countries.

To address these problems, in mid-September, Feingold and Durbin, both of whom have long expressed concerns about the Patriot Act, introduced the JUSTICE Act (Judiciously Using Surveillance Tools In Counterterrorism Efforts), which would renew section 215 and the roving wiretap provisions, but would require the government to provide more justification for using them, and to specify more clearly the targets of their investigation.

The bill would also rein in the FBI’s authority to issue National Security Letters by requiring the government to specify what it’s looking for and how the information is relevant to an ongoing national security investigation. Meanwhile, it would repeal the part of the FISA Amendments Act that immunized telecommunications companies such as AT&T that assisted the government in its warrantless wiretapping program.

But a week later, to the dismay of many civil libertarians, Sen. Leahy introduced the USA Patriot and Sunset Extension Act. Cosponsored by Sens. Benjamin Cardin (D-Md.) and Ted Kaufman (D-Del.), it would extend the expiring provisions with only minor modifications, and would leave the “lone wolf” and “roving wiretap” provisions intact. It also would not include any reforms to the FISA Amendments Act.

By the time of the Senate markup session last week, Sen. Leahy, the Judiciary Committee Chairman, had produced a substitute version of his bill, co-sponsored by Sen. Dianne Feinstein (D-Calif.), who chairs the Intelligence subcommittee. This bill became the basis for the markup, effectively destroying the chances for adoption of the JUSTICE bill, although pieces of it could still be introduced as amendments.

Civil liberties advocates quickly expressed their disappointment. The American Civil Liberties Union called it “a watered-down version” of the original Leahy bill. Kevin Bankston of Electronic Frontier Foundation similarly described it as having “even fewer PATRIOT reforms than the original Leahy bill.”  Although Feingold and Durbin offered amendments, the only one that succeeded was one amending the “sneak and peak” provision. The amendment would require the government to notify the subject of a search within seven days, instead of 30, as the law stands now. An amendment offered by Senator Durbin to narrow the broad Section 215 powers, which now allows the government to gain access to “any tangible thing,” failed.

Even Sen. Al Franken, who at the recent Senate Judiciary Committee hearing took the time to read the Fourth Amendment to the U.S. Constitution to Justice Department official David Kris, voted to support the Leahy-Feinstein substitute bill, and against the Durbin and Feingold amendments.

Feingold has repeatedly expressed concern that the government is not providing enough information for the public to know how the Patriot Act is being used.

“I remain concerned that critical information about the implementation of the Patriot Act remains classified,” said Feingold at a recent hearing, noting that he believes that much of that classified information “would have a significant impact on the debate.” Although the Justice Department recently acknowledged that the “lone wolf” authority has never been used, said Feingold, “there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know.”

Some representatives in the House, where they’re also debating changes to the Patriot Act and will eventually put forward their own bill, feel the same way. Earlier this week, Reps. John Conyers (D-Mich.), Jerrold Nadler (D-NY), and Bobby Scott (D-Va.) wrote a letter to Attorney General Eric Holder asking for more information about how Section 215 orders have been used to help inform the House debate. (Eventually, the House and Senate bills to amend the Patriot Act will have to be reconciled before they go to the President for his signature.)

Although Feinstein has cited classified information as her reason for supporting the re-authorization of section 215 as is, Feingold disagrees. The Feingold amendment would have limited what kinds of records could be obtained under section 215, and required that the government show that those records are related either to terrorist activities, or to people in contact with a terrorist.

Interestingly, notes Michelle Richardson, legislative consultant to the ACLU, during the Patriot Act reauthorization process in 2005, “Democrats and Republicans supported amendments to section 215 to limit it to terrorist activities,” she said. “But now they don’t.”

The problem with reauthorizing many of these provisions, says Richardson, is that “we don’t know what information they’re getting, how much, and who has access,” she said. “But we believe that anytime you get the information, it’s a violation. These are principles over 200 years old in this country, that government should not be getting this information about you unless they have reason to believe you’ve done something wrong.”

That principle is increasingly being discarded. Attorney General Guidelines issued at the end of the Bush administration, for example, eliminated the requirement that the FBI must have reason to believe the target of an investigation has committed a crime before initiating that investigation.

“Who knows if the information comes back to haunt you,” said Richardson. “If you apply for federal student aid, for a federal job, or end up on a no-fly list. We don’t know who has access to the information, and where it’s supposed to go. That’s not how things are supposed to work in this country.”

On Thursday, the markup session will continue in the Senate Judiciary Committee, as specifics on the bill get hammered out. Much of the critical information necessary to determine how it’s working, though, will remain secret.

A Chinook helicopter flies over Afghanistan (U.S. Army photo)

WASHINGTON — Last year, as Dr. Steven Miles, professor at the University of Minnesota Medical School and faculty member of its Center for Bioethics, was researching the deaths of detainees in U.S. custody, he noticed something strange. Although the Department of Defense had in the past issued press releases when detainees died at U.S.-run prisons in Iraq and Afghanistan, at some point in 2006, he says, the “entire prisoner death reporting system was turned off in Afghanistan.” Although at that time deaths in Iraq were still being reported, he says, that system was “turned off” at the beginning of 2008.

Miles, a member of the board of the Center for Victims of Torture and author of “Oath Betrayed: Torture, Medical Complicity and America’s War on Terror,” was working on an updated edition of his 2006 book, which documents how physicians and psychologists working for the U.S. military violated the Hippocratic oath and American Medical Association rules by helping the government design and monitor abusive interrogations. The Hippocratic oath requires doctors to consider above all the health of their patients and to do no harm, while an AMA directive prohibits physicians from “providing or withholding any services, substances, or knowledge to facilitate the practice of torture” and obliges doctors to support victims and to “strive to change situations in which torture is practiced.”

Instead, Miles documented, first in the British medical journal the Lancet and then more expansively in his book, physicians actually helped facilitate torture. “The medical system collaborated with designing and implementing psychologically and physically coercive interrogations” in Iraq, Afghanistan and at Guantanamo Bay, he wrote. Death certificates were falsified and military health officers were either reporting instances of torture late, or not reporting them at all, he found. And, he observes in the Appendix to the book’s second edition, titled “Oath Betrayed: America’s Torture Doctors,” published by University of California Press this year, the military appeared to be using physicians and psychologists to test the reactions of detainees to particular interrogation techniques, which may well violate ethical bans on experimentation on human subjects. Physicians for Human Rights recently released a report documenting similar concerns.

As Miles was working on his book, he realized there were huge gaps in the military’s reporting about the torture, injury and death of detainees in its custody. Although Miles says the Pentagon never reported the deaths of detainees subjected to “extraordinary rendition” — those sent to other countries for interrogation, sometimes under torture — the Pentagon had, at least, been reporting the deaths of some prisoners it acknowledged having in its custody.

Then one day, the press releases stopped. “They just stopped reporting it,” said Miles last week. It couldn’t be that no one died, he said, because “you have a certain expected death rate based on the size of the population. I’ve been able to trace all public death reports and can show when they turned them off.”

Last week, the Washington Independent first reported that the Department of Defense appears to have stopped releasing information about the deaths of detainees in its custody in Afghanistan and Iraq. (It has continued to release them concerning detainees at Guantanamo, most of whom are represented by lawyers.) Despite numerous daily requests for a response from the Pentagon since the middle of last week, the site has still not received any information from the government about whether or why it stopped issuing these reports for its other detention centers abroad.

Miles, meanwhile, has used his findings to write an article about the Pentagon’s failure to disclose detainee deaths and their causes. The paper is now being prepared for publication in the American Journal of Bioethics, a leading bioethics journal and website. In his paper, Miles writes:

In May 2004, shortly after media published photographs of lethal abuse at Abu Ghraib prison, DoD disclosed 22 prisoner deaths; of which 12 (54%) were attributed to natural causes. DOD did not disclose another 67 deaths that occurred during that same period. Only 13 (15%) of the total 89 deaths were due to natural causes. By the end of 2008, 93 of 165 known decedents (56%) are unnamed. Death certificates are available for 37 (22%). Homicides and shelling of prisons are the leading causes of death. DoD has completely suppressed prisoner death reports from Afghanistan since 2004 and adopted a similar policy for Iraq in 2008.

That the government has concealed or delayed reporting on deaths in its custody is nothing new. The New York Times reported in 2004 that the Defense Department had provided incomplete or inaccurate information about deaths of prisoners in its custody. And Human Rights First, a leading human rights legal advocacy organization, in a comprehensive report in 2006 documented similar gaps in the government’s reporting of deaths in U.S. custody.

“Our report found that commanders failed to report deaths in custody,” said Devon Chaffee, advocacy counsel with Human Rights First. “Sometimes they reported them days or weeks later. But there clearly was a reporting problem. Some were simply not reported at all,” she said, although Army regulations require that deaths in U.S. custody be reported within 24 hours.

Human Rights First’s report, Command’s Responsibility, based on its study of autopsy reports and interviews with military personnel, witnesses and physicians, found that between August 2002 and February 2006 nearly 100 detainees had died “while in the hands of U.S. officials in the global ‘war on terror.’” Although the military had deemed 34 of those deaths suspected or confirmed homicides, Human Rights First counted a total of 45 cases where the facts suggested “death as a result of physical abuse or harsh conditions of detention.” What’s more, in almost half the cases surveyed, “the cause of death remains officially undetermined or unannounced.” Overall, the group found, by the beginning of 2006, “eight people in U.S. custody were tortured to death.”

The international Geneva Conventions, which govern the treatment of prisoners in wartime, requires each signatory country to report publicly the deaths of detainees in its custody. But because President Bush early on decided that detainees in the “war on terror” are not technically “Prisoners of War” entitled to the protections the Geneva Conventions, the U.S. military has not followed that requirement.

The Obama administration does not appear to have changed the reporting policy, although at least some officials in the administration have declared the “war on terror” over. Still, the Pentagon under President Obama has not resumed regular reporting on the deaths of prisoners in custody, says Miles. The system is “still shut down,” he said. “Obama hasn’t opened it up. It’s just mysterious to me.”

The Washington Independent has called and written to officials in the Defense Department at least six different times in the last week, asking for a response to this claim about its reporting and for a statement of the current policy on reporting detainee deaths. Late yesterday, a Pentagon spokesman confirmed that the DoD issues press releases when detainees die at Guantanamo Bay; the Washington Independent still has not received an answer with regard to the deaths in Afghanistan and Iraq.

Regardless of the DoD policy, however, the result of the suppression of this information is that no one seems to know how many detainees in U.S. custody have died – including how many of those have been murdered or tortured to death – since the “war on terror” began.

Chafee said that Human Rights First and other human rights organizations, as far as she knows, have not had the resources to update their reports to keep an accurate count.

Representatives for the American Civil Liberties Union and the Center for Constitutional Rights said those organizations have not been able to track those numbers, either. Both have sought information from the government related to detainee deaths through the Freedom of Information Act.

Daphne Eviatar is a law reporter for the Washington Independent.

Rep. Wilson. Photo: Wikipedia

I guess Rep. “Joe” Wilson (R-S.C.) — actually, Addison Graves Wilson, Sr. — found out about that secret Democratic plot to provide all illegal immigrants with free health care.

What else could explain his outburst — “You Lie!” — during President Obama’s speech on health care reform (video), responding to the president’s statement that “the reforms I’m proposing would not apply to those who are here illegally”?

Perhaps Wilson believes that illegal immigrants ought not get emergency medical treatment, which is the only medical benefit they might qualify for — when they show up in a hospital on the verge of death, for example.

Or maybe it’s just because Wilson’s last campaign was supported by the Americans for Legal Immigration PAC — a restrictionist group that supports deporting all illegal immigrants in the United States rather than offering any opportunities for legalization, or “amnesty.”

ALIPAC gives Wilson an “A” for opposing “amnesties and ‘guest worker’ programs for illegal aliens along with other rewards such as in-state tuition and driver licenses.” I guess because he supports keeping them uneducated and untraceable if they get into a car accident.

Meanwhile, as MSNBC’s Keith Olbermann pointed out on his show tonight, Wilson has been writing op-eds spreading the rumor that Obama wants to install “death panels” to hasten the death of grandma.

So who’s lying?

Photo: WDCpix

WASHINGTON, D.C. — When President Obama showed up for a town hall meeting in New Hampshire on Tuesday, he heard more than just protests against health care.

“We don’t need illegals,” yelled a white-bearded protester into his megaphone outside the high school auditorium in Portsmouth, caught on video here. “Send ‘em all back. Send ‘em back with a bullet in the head the second time.”

If the threat of violence wasn’t clear enough, the man goes on to say: “Read what Jefferson said about the Tree of Liberty — it’s coming, baby.” Thomas Jefferson’s actual quote was “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

As the heat gets turned up on the health care reform debate, anti-immigrant activists are using the issue to whip up fear and anger toward immigrants, portraying them as a costly and burdensome drain on any taxpayer-supported U.S. health care system. Angry questions about illegal immigrants getting health care at town hall meetings across the country have put many lawmakers on the defensive.

At his town hall meeting in Pennsylvania, for example, Democratic Sen. Arlen Specter had to assure protesters that illegal immigrants would not be covered. House Speaker Nancy Pelosi (D-Calif.) has gone out of her way to make that point as well. Sen. Benjamin Cardin (D-Md.) faced similar shouted questions at his town hall forum on Wednesday, and repeatedly emphasized that illegal immigrants are not covered by the House bill. President Obama has also made the point, although it’s not clear that the anti-reform activists have heard it.

The protesters are spurred on in large part by immigration restrictionist groups who are using the health care debate to spread fears about immigrants. The restrictionist group Numbers USA, for example, has been posting video interviews online with unnamed “experts” warning that emergency rooms are overwhelmed by both legal and illegal immigrants, and that subsidized health care won’t be available for other low-income Americans because immigrants will be using it all up.

The Center for Immigration Studies in Washington, meanwhile, a non-profit research organization that says it’s “animated by a pro-immigrant, low-immigration vision,” is sponsoring a panel discussion next week in Washington called The Elephant In the Room: Immigration’s Impact on Health Care Reform. Steven Camarota of the center writes on the group’s web site that “one out of three people in the U.S. without health insurance is an immigrant (legal or illegal) or the U.S.-born child (under 18) of an immigrant,” and claims that immigrants and their children “account for one-fourth of those on Medicaid.” Yet “the enormous impact of immigration, both legal and illegal, on the health care system has generally not been acknowledged in the current debate.”

Immigrants’ advocates vehemently dispute the CIS statistics, and argue that immigrants — particularly illegal immigrants — are actually far less likely to use even emergency health services than American-born U.S. citizens are.

“We’re really concerned about what the anti-immigration community is doing to try and stop health care reform from moving forward,” said Jennifer Ng’andu, Deputy Director of the Health Policy Project at the National Council of La Raza. “We see it as those communities trying to stir the pot and create controversy. These are not folks who come to the table with solutions. They’re not looking to talk about a health care reform plan. They just assume that by creating anxiety about immigrants, that they’ll stop this debate.”

The protests have put lawmakers on the defensive. At town hall meetings focused on the health care debate, they’ve repeatedly been questioned about whether they support providing health care for illegal immigrants. Pelosi, Specter and Obama have all emphasized that illegal immigrants would not be covered under the current health care proposals.

The issue has gotten so heated that even the Congressional Hispanic Caucus issued a statement supporting health coverage only for “legal, law abiding” immigrants who pay their “fair share” for health care.

Under federal law, illegal immigrants are entitled to receive only emergency health care, although some states offer assistance to uninsured children. But conservative groups such as CIS and the Heritage Foundation complain that even emergency care for illegal immigrants is a big problem.

Immigrants’ advocates deny that that immigrants, legal or illegal, are driving up the costs of the health care system or disproportionately relying on government health services. And they point to a stack of studies showing that, on the contrary, immigrants actually use fewer health services than do American-born citizens.

A July 2009 article in the American Journal of Public Health, for example, found that insured immigrants had much lower medical expenses than insured U.S.-born citizens. And while recent immigrants constituted 5 percent of the nonelderly adult population, they were responsible for only 2 percent of adults’ total health care costs.

Meanwhile, a study by the non-partisan Kaiser Commission found that although noncitizens receive less primary health care than citizens, they are far less likely to use the emergency room.

The current House health care bill would not provide insurance coverage for illegal immigrants, and severely restricts coverage even for legal United States immigrants. Immigrant adults have to wait five years before becoming eligible for Medicaid or federal Children’s Health Insurance Plan benefits, for example. (CHIP covers pregnant women in addition to children.) That concerns both immigration and public health advocates.

“Legal immigrants might not achieve equitable access to health coverage in this health care reform bill, but they will be subject to the same requirements to purchase insurance,” said Ng’ara. “They pay the same taxes and will have to share in the responsibility of fixing our health care system, but they may be subject to waiting periods or restrictions before they qualify for many of the benefits.”

Michele Waslin, Senior Policy Analyst at the Immigration Policy Center, made the point in a recent blog post that including immigrants in any health insurance plan would actually help reduce the costs for everyone else. “An important function of health insurance is to pool risks and use premiums collected from the healthy to pay for the medical care of those who need it,” says Waslin. “It is common sense that the more people who pay into the health care system, the more the risk—and thus the costs—are spread out over the entire population.”

What’s more, she argues, public health improves the more people receive regular health care, including preventive services. “It’s also very expensive when people do not receive regular health care and wait until they are very sick to receive care,” she said.

The Center for Science in the Public Interest has concluded that “Comprehensive prevention programs are the most economical way to maximize health and minimize costs.”

The economics of health care may not be what’s actually motivating the controversy, however. The move to bar even legal immigrants from receiving any support to purchase health insurance is consistent with a broader rise in anti-immigrant sentiment that experts who track hate groups are noticing.

A new report from the Southern Poverty Law Center released this week, for example, noted a dramatic rise over the past decade of right-wing militia movements. The group attributes the phenomenon in part to “high levels of non-white immigration and a decline in the percentage of whites overall in America,” which has made race a much larger focus of its anti-government “Patriot movement.” The result, says the law center, has been that even “ostensibly mainstream politicians and media pundits have helped to spread Patriot and related propaganda, from conspiracy theories about a secret network of U.S. concentration camps to wholly unsubstantiated claims about the president’s country of birth.”

Daphne Eviatar is a law reporter for the Washington Independent.

Sign at a Jun. 1 vigil for slain abortion provider Dr. George Tiller. (Photo: Priya Deonarain, Flickr)

The fatal shooting allegedly by a known white supremacist at the Holocaust Memorial Museum Wednesday in Washington is the second murder apparently motivated by a hateful ideology that’s come to national attention in the last two weeks. James W. von Brunn, the 88-year-old suspect and convicted felon, was well-known for sending mass e-mail messages such as “It’s time to kill all the Jews” and promoting elaborate conspiracy theories on his Web site. Similarly, Scott Roeder, the 51-year-old accused of murdering abortion provider Dr. George Tiller in his Wichita, Kans., church, had a long history of ties to a violent right-wing extremist group, had previously threatened another abortion provider, and had just that week vandalized Tiller’s clinic.

Just as federal law specifically penalizes hate crimes, the law also makes it a federal crime to threaten or commit violence against abortion providers, or to vandalize their clinics. Yet as was revealed last week, the criminal law was not being enforced. The day after Dr. George Tiller was murdered, the Washington Independenet obtained data revealing that under the Bush administration, criminal enforcement of the federal law designed to protect abortion providers and clinics had declined by more than 75 percent over the last eight years.

But there’s also a civil component to that federal law, known as the Freedom of Access to Clinic Entrances Act, or FACE Act. That part of the law allows the attorney general to seek an injunction and compensatory damages for anyone who’s been harmed by any activity that violates the law. And it turns out that the Department of Justice over the last eight years didn’t use that part of the law to protect abortion providers, either.

Under the FACE Act, in addition to criminal charges, the Justice Department can obtain damages and an injunction against anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with” anyone who provides or receives reproductive health services. It also allows the government to prosecute and sue anyone who “intentionally damages or destroys the property” of an abortion clinic, because they are frequently vandalized as part of protesters’ intimidation tactics. The clinic where Dr. Tiller worked, for example, was repeatedly vandalized, including just days before his murder.

Yet despite these broad powers that Congress granted the attorney general in 1994 to prevent and combat violence against abortion clinics and providers, the Bush administration almost never used them. From 2000 until 2008, during the eight years of the Bush administration, the Justice Department filed only one civil case under the FACE Act. From 1994 until 1999, in contrast, in just five years of the Clinton administration, the Department filed 17 civil cases under the FACE Act — in addition to its much heavier load of criminal cases that we’ve reported before.

It’s possible, of course, that the law was so effective in its early years that it deterred all future violations. “I do think that the statute was very effective,” and “for the most part there were fewer complaints coming to us,” said Cathleen Mahoney, vice president and general counsel of the National Abortion Federation and director of the Justice Department’s Task Force on Violence Against Reproductive Health Care Providers until 2006.

But crime statistics provided by the National Abortion Federation show that violence did not stop when the Bush administration came into office. The group reports 3,291 acts of violence against abortion providers in the United States and Canada between 2000 and 2008 – and that’s only the number of incidents they know about. (The total number of incidents in the U.S. alone was not available.) The group warns on its Website that “actual incidents are likely much higher.” That number does not include threats, vandalism and harassment, which are also violations of the FACE Act.

The NAF — the organization that most closely tracks such data in the United States — also reports that between 2000 and 2008 there were at least 17 cases of “extreme” violence against abortion providers in the United States, such as arson, stabbing and bomb attacks. At least 607 letters threatening Anthrax contamination (they did not actually contain anthrax) were sent to abortion providers between 2000 and 2002 alone. During the entire eight years of the Bush administration, the federal government prosecuted only 11 individuals for any acts of violence against abortion clinics or providers.

Former Attorney General John Ashcroft, although opposed by many abortion-rights advocates for his vehement opposition to keeping abortion legal, did prosecute the infamous anti-abortion activist and convicted felon Clayton Lee Waagner for the anthrax threats, which attracted significant public attention because they were sent just after lawmakers and news organizations received letters containing anthrax spores, prompting nationwide fears of deadly biological terror attacks.

Waagner was an easy target: a fugitive who’d escaped from jail in February 2001 while awaiting sentencing on federal weapons charges, he was already on the FBI’s Top Ten Most Wanted List, the U.S. Marshals Service Fifteen Most Wanted List, and the Ten Most Wanted List of the Bureau of Alcohol, Tobacco and Firearms. He was arrested in November 2001 and promptly claimed responsibility for over 550 anthrax threat letters sent to abortion providers in October and November. The letters were signed by the Army of God, an extremist anti-abortion organization that openly advocates violence against specific physicians who provide abortions. Waagner’s supporters in the Army of God, however, were not prosecuted or even sued for civil damages or injunctions under the FACE Act, although the group was responsible for distributing a manual that supplies detailed instructions for attacking abortion clinics, manufacturing bombs and cutting off the hands of abortion doctors, according to SourceWatch. The FBI has characterized the prosecution of Waagner as a “counterterrorism case,” suggesting that the “Army of God” is considered a domestic terrorist organization by federal law enforcement.

Yet despite the prosecution of Waagner in 2001, the Army of God today continues to do much the same thing. The group and its members continue to support and advocate the murder of abortion providers. Its Website, for example, on Wednesday celebrated the Tiller murder in this banner headline: “The lives of innocent babies scheduled to be murdered by George Tiller are spared by the action of American hero Scott Roeder. George Tiller the Babykiller reaped what he sowed and is now in eternal hell.” It commends previous convicted murderers of abortion doctors as “heroes,” and continues to host the “Nuremberg Files,” a notorious list of the names of abortion providers and recipients, with a line through those that have been killed and  names grayed of those who have been murdered. (The Ninth Circuit Court of Appeals in 2002 found that these constituted threats to the doctors.) As Rachel Maddow recently described the Army of God’s current Website on MSNBC: “You can actually scroll through pages and pages of mug shots and descriptions of bombings and shootings and murders and attempted murders — all praising the perpetrators, and even suggesting ways to get away with the same types of crimes that these people committed but you could do it without getting caught.”

Although such conduct has in the past led to violence, the threats are often not prosecuted by local police. According to Dr. Susan Robinson, who used to perform abortions at the same Wichita clinic as Dr. Tiller did before it was closed: “they allow the anti-abortion protesters to set up dozens of crosses and leave them all day. Dr. Tiller went to the city attorney over the crosses, and complained that people block the clinic driveway,” she told journalist Amy Goodman. “He told me that the city attorney said, ‘I would rather be sued by George Tiller than the anti-abortion folks.’ ”

The federal law was enacted in part to fill in the gaps when local authorities refused or lacked the resources to bring charges. “Often local police won’t enforce the local laws against trespassing,” explained Mahoney, the former federal prosecutor. “It’s politically charged and local police want to stay out of it.” During her tenure at the Department of Justice, Mahoney said it was the Civil Rights Division of the Justice Department that was charged with enforcing the FACE Act. That’s the same division that Inspector General reports and Congressional hearings eventually revealed repeatedly made hiring and enforcement decisions based on conservative political ideology rather than merit.

In the one situation in the last eight years that the Bush Justice Department decided did merit a lawsuit, in 2007, the charges were so serious that it’s not clear why the administration filed a civil suit rather than criminal charges. The federal government sought only an injunction – essentially, a court order telling the defendant to stop.

But this was no mere schoolyard-style harassment. According to the legal complaint filed by the Justice Department, John Dunkle, another member of the “Army of God”, had been publishing a monthly Web newsletter “encouraging readers of his publications to use deadly force against specifically identified reproductive health clinic physicians and staff, providing instruction on how to employ deadly force tactics; provoking physical and verbal confrontations with reproductive health clinic physicians, staff and patients at various clinics” and “publishing internet postings containing photographs and the home addresses of reproductive health clinic physicians and staff,” among other things.

The government also claimed that he “threatened a specific female clinic physician until she ceased providing reproductive health services in fear of the Defendants’ threats to her life.”

Those threats included “explicitly encourag[ing] his readers to kill the targeted individual by shooting her in the head”; publishing her name, photo and home address on his Web page and blog; and publishing instructions “regarding the specific means to kill the targeted individual, as well as how to escape detection upon the commission of her murder.” Such postings dated back more than two years, identifying the same person.

There is no question that such threats are criminal under the federal law, say legal experts. “Physical obstruction is not protected, violence is not protected and true threats are not protected,” said Louise Melling, Director of the ACLU’s Reproductive Freedom Project, which has submitted several amicus briefs to courts defending the constitutionality of the federal law. A “true threat” has been defined by the courts has a threat that would reasonably be interpreted by the person hearing it as a serious threat to their safety.

Yet in the case of John Dunkle, whose threats caused a reproductive health provider to quit her profession, the government did not seek criminal penalties or even any monetary damages to compensate the victims and deter future crimes; it simply asked the court to tell him to stop.

Department of Justice spokesman Alejandro Miyar said that department officials decide whether or not to prosecute or seek damages in cases “on a case-by-case basis, and a number of factors are taken into account, including — among others — whether there is an identifiable subject and whether the matter is being pursued by local officials.” He was not aware of whether Dunkle had been prosecuted for related acts under state law, and there was no indication in the documents filed in the federal case that he had been.

Threats against abortion providers appears to have had a serious impact on the availability of the procedure, and particularly on the ability of women to obtain legal later-term abortions, even when the pregnancy threatens the woman’s life. According to the Guttmacher Institute, a nonprofit organization focused on sexual and reproductive health research, only two percent of all abortion providers in the United States currently provide such procedures, which are most heavily targeted by extremist anti-abortion groups. Women most commonly seek such abortions due to abnormalities of the fetus and threats to a woman’s health or life, and in many states they’re only legal if the woman’s health or life is in danger. Dr. Tiller and his clinic were therefore frequent targets of both violent threats and actions, up until the day before his death.

The FACE Act was adopted to prevent and prosecute this sort of violence, in part because Congress concluded that existing state laws and local law enforcement were unable to do the job on their own.

When President Clinton signed the FACE Act in 1994, he said: “We simply cannot – we must not – continue to allow the attacks, the incidents of arson, the campaigns of intimidation upon law-abiding citizens that (have) given rise to this law,” citing the murder of Dr. David Gunn in Florida in 1993, and the shooting of Dr. Tiller in both arms outside his clinic in Wichita that same year.

“No person seeking medical care, no physician providing that care should have to endure harassments or threats or obstruction or intimidation or even murder from vigilantes who take the law into their own hands because they think they know what the law ought to be.”

The statistics on enforcement of the FACE Act by the Justice Department suggest that during the Bush administration, protecting those physicians was no longer a high priority.

Daphne Eviatar is a law reporter for the Washington Independent.

Sens. Russ Feingold (D-Wis.) and Tom Coburn (R-Okla.) (WDCpix)

The transfer of former “high-level” Guantanamo Bay detainee Ahmed Ghailani to a federal prison in New York on Tuesday highlights the dilemma President Obama faces over what to do with the 240 detainees remaining at the Guantanamo Bay prison, as well as any others he claims will need to be detained indefinitely without trial in the future.

Ghailani, a Tanzanian seized in Pakistan in 2004 on suspicion of participating in the 1998 U.S. embassy bombings in East Africa, spent two years under interrogation in a secret CIA prison before being sent to Guantanamo in 2006. Today, while expressing full confidence in the U.S. criminal justice system, Attorney General Eric Holder initiated Ghailani’s prosecution in federal court — 11 years after the crime.

At the same time, President Obama is considering creating a new system of “preventive” indefinite detention for some detainees “who cannot be prosecuted yet who pose a clear danger to the American people,” as he said in his May 21 speech at the National Archives. That prospect has sparked a bitter controversy among legal and national security experts over who would be detained, the legality of such detention, and the implications for the national security of the United States.

“Indefinite detention without trial is a hallmark of abuse,” Sen. Russ Feingold (D-Wis.) wrote in a letter to Obama the day after Obama’s speech. On Tuesday morning, Feingold convened a hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution to further explore the issue.

Witnesses debated the legality of detaining suspected terrorists picked up around the world – as opposed to detaining “combatants” on a clear “battlefield,” as international law allows. But much of the hearing’s testimony focused on how a policy of indefinite detention of suspects who are presumed “dangerous,” yet the United States refuses to try as criminals, will affect the nation’s moral standing in the world and its ability to fight al-Qaeda.

Sen. Tom Coburn (R-Okla.), the ranking Republican on the subcommittee, presented the GOP’s position by emphasizing that in Hamdi v. Rumsfeld, the Supreme Court “allowed for the indefinite detention of enemy combatants without trial” and praised Obama for embracing that power.

But others noted that the Hamdi ruling is not nearly that broad, and argued that the indefinite or “preventive” detention of suspects seized around the world has no precedent in international law.

Sarah Cleveland, professor of human and constitutional rights law at Columbia Law School, testified that Hamdi v. Rumsfeld only allowed “states to apprehend enemy troops in a traditional conflict and to hold them until the end of that conflict.” The only issue in that case, she said, was the detention of an armed combatant in the U.S. war with the Taliban-led Afghan government, which was a traditional international conflict.

But the U.S. government has also claimed “a roving power to detain persons seized outside a traditional theater of combat,” and that claim “has brought the United States widespread international condemnation, eroded our moral authority, and inspired new converts to terrorism,” testified Cleveland.

One major difficulty in the current situation is identifying the “battlefield” in a global war on terror and deciding who is a “combatant” in it. That’s something that the administration has been struggling with in a host of individual habeas corpus cases pending in federal court – most of which, it has lost, as the government has been unable to present sufficient evidence that the suspect imprisoned at Guantanamo Bay for years was actually a member of al-Qaeda or the Taliban, or any associated forces fighting the United States.

A newly authorized system of preventive detention would seek to avoid such court losses.

The idea that the United States must prosecute combatants is “myopic to put it gently,” said David Rivkin, a lawyer in the Reagan and Bush administrations and now a partner in the firm Baker & Hostetler.  “It is virtually impossible to obtain the sort of evidence necessary [for a prosecution] in a battlefield,” he said. “You’re not going to run a CSI Kandahar … to me the notion that there’s this other alternative of prosecuting them is not possible. We cannot fight this war if we’re not going to have a military paradigm.”

The tension between whether the United States is fighting a “war” or trying to track down and prosecute violent criminals has created a rift — with human rights advocates and some military and national security experts on one side, and the Obama administration, which on this issue seems aligned more closely with Congressional Republicans, on the other.

Elisa Massimino, executive director of Human Rights First, testified that senior military officials recently warned that the president’s plan for military commissions and preventive detention would undermine international confidence in the American judicial system and provide more fodder for the United States’ enemies.

“The Guantanamo detentions have shown that assessments of dangerousness based not on overt acts, as in a criminal trial, but on association are unreliable and will inevitably lead to costly mistakes,” she said. “This is precisely why national security preventive detention schemes have proven a dismal failure in other countries. The potential gains from such schemes are simply not great enough to warrant departure from hundreds of years of western criminal justice traditions.”

Cleveland similarly testified that “prolonged detention of non-battlefield detainees is viewed as illegitimate by the advanced democracies who are our allies and undermines their cooperation with our global counterterrorism efforts.”

“No other European or North American democracy has resorted to long-term detention without charge outside of the deportation context,” Cleveland said. “Our closest allies—including the United Kingdom, France, Spain, Germany, Australia, and Canada—do not resort to such detention. … Among advanced democracies, only Israel and India have adopted long-term detention systems for terrorism suspects. Both regimes are highly controversial, and the U.S. State Department consistently has criticized the practices of both countries.”

Tom Malinowski, Washington Advocacy Director of Human Rights Watch, emphasized that the military paradigm accords terrorists the undeserved dignity of being “warriors” against what is, in their minds, an evil empire. “Anytime we treat these detainees as something special,” he said, “we are actually reinforcing their narrative, their story about who they are, global warriors in a global struggle,” he said. “It’s a narrative the helps them recruit more people to their hateful cause.”

He warned that it also creates a dangerous precedent for other countries.

“Russia sees anyone who stands up to its authority in the Caucasus as a terrorist,” he said. “Would we be comfortable if we accepted the idea that Russia could detain or kill anyone in the world who threatens their rule in the Caucasus? Or if the Chinese go around the world rounding up Uighurs because they’re suspected of being engaged in war on terror against China?”

To which Rivkin retorted: “Just because a bunch of hypocritical politicians in Russia or China or Egypt claim to be inspired by our example does not make it so.”

The witnesses all appeared to agree, however, that the issue is urgent and extends far beyond the situation of the 240 prisoners at Guantanamo Bay.

As Richard Klinger, a former Bush administration lawyer testified, the U.S. military is already detaining thousands of suspected al-Qaeda and other alleged terrorist supporters around the world. “The debate over indefinite detention often wrongly focuses on Guantanamo Bay,” he said. “The current practice is considerably more widespread, and any limitations on indefinite detention would have correspondingly wide implications.”

Which of the U.S. military’s detentions are legitimate, and what kind of new detention scheme can be created and justified by the Obama administration, are core questions that Congress, the courts and the president will be called on to answer in the coming months.

Daphne Eviatar is a law reporter for the Washington Independent.

Vice President Joe Biden and President Barack Obama applaud Supreme Court nominee Sonia Sotomayor (Zuma)

Conservatives looking to reintroduce affirmative action as a political hot topic are eagerly attacking Supreme Court nominee Sonia Sotomayor for her decision in a reverse discrimination case. But what many of these same conservatives aren’t mentioning this week is that they once, overwhelmingly, supported a race-based initiative that has become a hallmark of the Bush Administration: No Child Left Behind.

In Ricci v. DeStefano, Judge Sotomayor joined two other judges on the Second Circuit Court of Appeals affirming the dismissal of a case brought by white firefighters who were denied promotions. The sixteen men insisted that they deserved to be promoted over their black colleagues because they scored better on two promotional exams. But the New Haven civil service board decided not to certify the exams’ results because that would have led to promotions of almost all white firefighters in a city where 32 percent of entry-level firefighters are black, and 66 percent of the population is black or Hispanic. The racial disparity could have made the city vulnerable to a discrimination lawsuit.

Illustration by: Matt Mahurin

Conservative commentators and right-wing organizations have attacked Sotomayor for upholding New Haven’s right to make the decision it did, priming Republicans in Congress to do the same at her confirmation hearing. Yet almost none of them note that Republicans have pushed for laws that not only similarly acknowledge past racial discrimination but use racial categories to remedy it.

The No Child Left Behind Act is a perfect example. Championed by President George W. Bush in 2001 and signed into law in 2002 with the overwhelming support of Republicans in Congress, the law recognized that minority children in the United States have historically not done as well in school as white children. And it used explicit racial categories to remedy the problem.

“The No Child Left Behind Act is a civil rights law that triggers government action based on the status of racial groups,” said Michael Dannenberg, senior fellow at the New America Foundation and former senior education counsel to Sen. Edward M. Kennedy (D-Mass), a co-sponsor of the No Child Left Behind Act. “If schools aren’t teaching Latino or African American kids to state education standards, for example, No Child Left Behind entitles those kids to free after-school tutoring among other government interventions,” said Dannenberg.

“Over 85 percent of Congress voted in favor of No Child Left Behind,” Dannenberg added. “The No Child Left Behind vote makes it a little more difficult for Members of Congress to criticize a judicial nominee for upholding government action based on the status of racial groups.”

The No Child Left Behind Act is explicit in its use of racial categories, stating that one of its primary purposes is “closing the achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers.”

As the Department of Education explains on its web site, the law “benefits African Americans” and acknowledges that in the past, “too many African American students have been shortchanged by our nation’s schools.”

“In the greatest country in the world, we created two education systems – separate and unequal,” the agency says on its web site. “Forty years after the Brown v. Board of Education decision, some schoolchildren were taught well while others – mostly poor and minority – were left to struggle or drop out.” This growing “achievement gap” between white and African American students needs to be addressed, and the No Child Left Behind law makes closing that gap “a national priority.” As a result, “schools are now held specifically accountable for the annual progress of African American students.”

The legislation explicitly requires school districts to categorize and quantify students’ academic success by race. And the outcomes make a big difference for the district. If minority children are performing below a certain level, the schools are penalized; eventually they can even be closed. So schools have an incentive to target extra resources toward minority students that aren’t performing well to ensure they meet the law’s targets. It is, in short, an explicitly race-based standard.

Roger Clegg, President and General Counsel for the Center for Equal Opportunity, wrote in the National Review in 2007 that “the law’s requirement that schools track the scores of racial subgroups of students, and that each group hit the target pass rate on the tests” has “generated surprisingly little debate.”

“It’s fine to want to improve kids’ test scores,” Clegg said on Monday after President Obama announced Sotomayor’s nomination, “but if you have two schools and kids are struggling in both schools, I don’t know why it should matter what skin color they are. Unfortunately the way the [No Child Left Behind Act] works is, it encourages school systems to be more concerned if the struggling kids are of one race than another race, depending on whether there’s a gap in the rest of the system.” Clegg similarly thinks that the Ricci case, decided by Sotomayor and her colleagues, was decided wrongly. “We believe that as a matter of policy the use of racial categories by governments in particular is almost always a bad idea,” he said.

Clegg is right that few Republicans who now criticize the Ricci decision or Sotomayor’s claims that race is sometimes relevant had any problem when President Bush and a Republican-dominated Congress pushed the No Child Left Behind Law.

In fact, a review of the Congressional history suggests that none of the Republicans in Congress — including sponsors John Boehner (R-Ohio) in the House and Judd Gregg (R-N.H.) in the Senate — ever publicly complained about the law’s categorizations by race. Then-Rep. Jim DeMint, one of the leading GOP opponents of the bill initially, said : “I opposed the first version of “No Child Left Behind” solely because it didn’t have enough of a role for local authorities. He made no mention of race.

And when Republicans introduced legislation in 2007 to undercut the law, their main objection to it was that it increased bureaucracy and federal control over eduction.

Sotomayor, meanwhile, has been roundly criticized by the right as a hard-left liberal with a “very expansive” reading of the constitution that’s guided by “her personal feelings” rather than the law, in large part due to her participation in the Ricci opinion. Like the education law, Ricci acknowledged disparities based on race and did not forbid the city from taking that into account in its decisionmaking.

There are strong reasons for doing so. As the NAACP Legal Defense and Education Fund wrote in an amicus brief filed in Ricci, now on appeal before the U.S. Supreme Court: “There have been few, if any, sectors of public or private employment where racial discrimination has been more firmly entrenched than it has been in fire-fighting.” This was a key reason why Congress in 1972 extended Title VII of the Civil Rights Act to state and local government employers. “Respondents’ efforts more than three decades later to eliminate continuing employment discrimination in filling supervisory positions within New Haven’s firefighting force must be viewed in light of this legislative history,” writes the Legal Defense Fund.

In extending the Civil Rights Act’s reach, the brief continues, quoting extensively from the Congressional Record, Congress explicitly found that fire departments had failed to recruit blacks and denied them promotions because of “rel[iance] on criteria unrelated to job performance and on discriminatory supervisory ratings.” Discrimination was worst at the supervisory level: “Negro . . . firemen hold almost no positions in the officer ranks,” Congress found. Employment discrimination in firefighting and other visible government jobs, Congress worried, “impaired government performance and democratic accountability.”

It was against this backdrop of past discrimination that Sotomayor voted with her colleagues to affirm New Haven’s decision not to promote all-white firefighters based on exams that had a clearly disparate impact on applicants of different races. A majority of judges on the Second Circuit Court of Appeals voted not to re-hear the case, agreeing with Sotomayor’s opinion that that decision was not unlawful.

When President George H.W. Bush nominated Sotomayor to the U.S. District Court for the Southern District of New York in 1991, the Princeton and Yale graduate, former prosecutor and commercial litigator, sailed through Senate confirmation with ease. But when President Clinton nominated her to the Court of Appeals six years later, Republicans stalled her nomination for more than a year, knowing that a seat on the prestigious Second Circuit would be a launching pad for a future Supreme Court appointment.

The Washington Independent’s David Wiegel has written about how Republicans are itching to use President Obama’s first Supreme Court nomination to “educate” the American people and galvanize Republican loyalists. Conservatives’ vocal attacks on Judge Sotomayor’s role affirming the right of a city fire department to prevent racial discrimination — contrasted with their complete silence on the matter when it came to Republican legislation using racial categories to address discrimination in education — calls into question their motivation.

“I don’t think it will stop criticism,” said Dannenberg, “but there is a seeming contradiction.”

Daphne Eviatar is a law reporter for the Washington Independent.