Saturday, September 30, 2006

The Innocent Man at Guantanamo

by Sabin Willett

"The interrogator shut her file and said, `Congratulations! Your interrogation is complete. You're innocent! You'll be leaving soon.' "

``When did this happen?" I asked.

Abdulnasir searched his memory. His foot moved back and forth the short length of the chain clipped to the floor. Then the young man spoke softly, ``The year after we got here -- 2003. In the spring, I think -- a long time ago."

Abdulnasir is in Guantanamo today, more than three years later.

Is Abdulnasir innocent?

Abdulnasir is a Uighur -- part of a Muslim minority whose central Asian homeland fell to the Communist Chinese in 1949. Ever since, the Uighurs have dreamed of independence and, ironically, of America, whose ideals they love. In the fog that followed the US invasion of Afghanistan five years ago, a number of Uighur men were sold to the United States by Pakistani bounty hunters.

Almost no one at Guantanamo was captured on a battlefield. Most were sold for bounties.

Last March my law firm filed for two Uighur men a habeas corpus petition -- a request that a court determine whether their imprisonment is legal. Only later, when we reached the base in July 2005, did we learn that the military had already concluded that the two were noncombatants. Only habeas corpus gave us the tool to press for release. On the eve of a court hearing last May, Adel and Abu Bakker were sent to Albania.

``Abdulnasir was with us," they said. ``We are not enemy combatants. Why do they call him that?"

So we filed a second petition for Abdulnasir and other Uighur men. The government has never explained their ``enemy combatant" badge. The military records bear out what the cleared Uighurs say, that Abdulnasir and the others were with them, and had no more connection with Al Qaeda or the Taliban or combat than they did.

Is Abdulnasir innocent?

The usual way we would answer that question -- the way we have answered it for centuries -- is in a habeas corpus hearing. The government would present whatever facts or law justify his imprisonment. Abdulnasir would respond, and a federal judge would decide. This habeas corpus proceeding is the most basic judicial protection we know, and the most ancient. The writ predates our own Constitution.

But now Congress is considering a bill that would eliminate habeas corpus for Abdulnasir and hundreds of others at Guantanamo. It is a strange bill. It contains many pages to ensure that Khaled Sheikh Mohammed and other alleged 9/11 murderers will be fairly tried. Almost as an afterthought, it adds a provision that eliminates judicial review for men like Abdulnasir, who will never be tried, indeed, never be charged with anything.

The only question this bill would permit a court to review is whether a military panel followed Secretary Donald Rumsfeld's rules when it branded Abdulnasir an ``enemy combatant." That's not much of a review: The secretary's rules extended ``enemy combatant" to people who'd neither been enemies nor combatants, and never been on any battlefield. It let the panels rely on tortured ``confessions" and other secret evidence.

The other day Senate majority leader Bill Frist spoke of being within ``ten yards of vicious terrorists at Guantanamo." He almost snarled as he said it. I don't know who he saw, but I wish he'd joined me in Camp Echo with Abdulnasir and formed his judgment of this gentle man at the closer quarters from which physicians usually observe patients.

When, I wonder, did we become such a small people? So panicked by foes that we lash out at friends, so terrified by those who hate freedom that we abandon the very institutions that make us free?

I think our legislators need to travel again to Ground Zero, as I did on Sept. 8. It is a holy place, filled with sadness. And yet a new energy is felt there, a new urgency, an impatience with paranoia, a brash determination to rebuild. New Yorkers are confident today -- confident for many reasons, and among them, as President Eisenhower said so long ago, that we have habeas corpus, and we needn't fear any man.

Is Abdulnasir innocent?

A judge could tell us. The sad thing is this: If the bill passes, it won't matter.

Sabin Willett is a partner at Bingham McCutchen LLP.

© Copyright 2006 Boston Globe

Friday, September 22, 2006

Life After Net Neutrality: Replaced By a Chimp?

by Jeffrey Chester, the Nation

Despite growing opposition, Alaska Republican Senator Ted Stevens appears determined to pass his telecom giveaway bill this year. If Stevens and his pals in the telecom and cable industries prevail, expect the free flow of online content to be replaced by corporate infotainment like Anheuser-Busch's lowbrow broadband Bud TV.

Stevens is using his considerable political clout to get at least sixty senators to agree to bring the flawed measure to the floor. Stevens has acknowledged that his rewrite of the 1934 Communications Act now faces an uphill battle, primarily due to the controversy generated by public-interest groups over network neutrality, the guiding principle of the Internet, which guarantees all users have equal access to content and services.

Over the summer,, Common Cause, USPIRG and many others worked to firm up support for network neutrality rules. As a result, six senators have come out in favor of Internet freedom--Vermont Independent Jim Jeffords and five Democrats (New Mexico's Jeff Bingaman, Minnesota's Mark Dayton, Iowa's Tom Harkin, Massachusetts's Edward Kennedy and New York's Chuck Schumer). There is also growing corporate and academic support for network neutrality--from Yahoo!, Google and Microsoft to the mainstream American Electronics Association.

The intense battle over the Internet's openness, Stevens acknowledged, "may well lead to total defeat [of the telecommunications bill] this year after nineteen months of work." But Stevens, long accustomed to wielding immense power due to his seniority (he's president pro tem of the Senate, as well as chair of the Commerce Committee and a key appropriations subcommittee), doesn't plan to give up easily. It remains highly likely that some kind of backroom deal will be struck during the lame-duck session after the November elections. Stevens and his pro-big media Senate allies might also attach key parts of his bill in "must-pass legislation" such as in budget or national security laws.

The Stevens bill not only proposes to scuttle network neutrality rules but also undermines key policies designed to insure community influence over how broadband networks serve the public interest--including the ability of American soldiers stationed overseas to phone home. In a section titled "War on Terror," instead of legislation that insures maximum freedom of expression, the telecom rewrite thinks first about protecting corporate cash flow. Lawmakers could have ordered the FCC to insure that members of the military have unlimited free calls, but the Stevens bill actually prohibits the FCC from regulating any rates to do so. It simply requires the federal government to promote a "reduction of such costs" by cutting taxes or fees on phone service.

Stevens's talking points are actually being scripted--and paid for--by phone industry lobbyists. On Monday the Senator's Commerce Committee released a "bipartisan poll," which purported to show the public cared little for network neutrality. All the public really wants the Senate to do, the survey results suggested, was to support the Stevens bill as it's currently written. But neither the poll nor the press release issued by Stevens revealed, as the Wall Street Journal did today, that Verizon had paid for the study. The role of Verizon is not surprising, given that the poll was developed by the Glover Park Group lobbying shop (along with Public Opinion Strategies). Glover Park--which is run by such high-level Democratic Party advisers as Howard Wolfson, Joe Lockhart and Carter Eskew--has been helping Verizon in its efforts to scuttle broadband policy safeguards since 2005.

The GOP--including the White House--is still pushing hard to kill network neutrality. For example, at a hearing last week before Stevens's committee on his renomination for another term, FCC chair Kevin Martin came out in defense of the big cable and phone companies. The FCC chair said he thought it was fine for Verizon and others to begin charging extra fees to those content providers that want to be placed on faster Internet lanes. Martin, who was largely given an "easy ride" by senators from both parties in a recent hearing, said that without the ability to charge more, phone and cable companies wouldn't be able to offer the public new "products" such as broadband video. (The fact that Democrats aren't trying to oppose Martin's renomination--given his support for further ownership consolidation and opposition to net neutrality--illustrates the Democrats' weakness on public-interest and telecom issues.)

Such steadfast support from Stevens, Martin and others for their plans to transform the Internet sent an affirmative message to both the phone and cable lobbies. Two days after a recent Commerce Committee hearing, a BellSouth executive told a technology gathering that his industry's planned "innovative" pricing schemes for broadband would give those that could afford it preferential Internet treatment.

The broadband content most likely to benefit from the new "pay us the most to get the best service" Internet will be online programming from our biggest advertisers and media conglomerates. Take, for example, the recent announcement about the new online entertainment channel network called Bud.TV, in which Anheuser-Busch plans to use high-speed and interactive video to attract a new generation of steady beer drinkers. One Bud.TV show already in production--which will likely be able to enjoy the fruits of non-network-neutrality US Internet--is called "Replaced by a Chimp." According to an Anheuser-Busch executive, for each show they will "grab a profession, such as a waiter, or a bartender or a trial attorney and replace those people with a chimp, and film the reaction of the consumers who happen to be in the same environment as the the end of the show, the consumer will vote on whether the chimp should stay and continue on the job."

Such dumbing-down of broadband is more likely in the absence of network neutrality rules. Expect media conglomerates and advertisers to flood our broadband networks with chimps selling beer and ketchup-colored clowns pushing fast food. Such deep-pocketed interests will be able to pay Verizon, AT&T, Comcast and Time Warner to deliver their content with better video, faster processing and overall greater visibility, crowding out the unique programming that the Internet has been able to deliver to niche audiences. Given the "triple play" plans of the cable and phone industry, such digital favoritism will find its way not just via our personal computers but on digital television and cellphones as well.

It will take intense, continued pressure on both parties to effectively kill the Stevens bill this session. If such opposition is successful, a major new organizing effort must begin in January 2007 to develop a new media law that actually promotes the public interest in the digital media era.

Consumers should view the new announcement about Bud.TV as a kind of "early warning" alert. Without safeguards to insure the Internet evolves as an open, democratic network, our media system will continue to drive public culture down-market--as the late media scholar Neal Postman wrote, "amusing ourselves to death."

But regardless of what happens, perhaps we should recommend to the folks at Bud beer their first guest for "Replaced by a Chimp." I nominate the senior Senator from Alaska.