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Jul 12, 2010

Tense Times in Dili

The Irrawaddy News Magazine - July 2010, Vol.18, No.7

by Matt Crook

Ozorio Leque stands accused of inciting a riot in Dili, the East Timorese capital, on April 28, 2006, when he publicly berated the government before a mob went on the rampage, attacking the government palace. The crisis that followed over the next two months led to 37 deaths and the displacement of 150,000 people.

One of the leaders of Colimau 2000, a resistance group comprising former freedom fighters, youths and farmers, Leque, 29, insists he was acting merely as an activist and that the real perpetrators of the crisis remain untouched. Meanwhile, frustrations among an increasingly disenfranchised youth demographic are now the country’s biggest social challenge.

“Now it’s more calm and more quiet and peaceful than before, but that does not mean that we don’t have conflict among the youths, among the leaders, that could lead to another social conflict in the future, particularly with martial arts groups,” he said.

In the crisis of 2006, a split in the armed forces over promotions led to clashes in the streets of Dili between the army (F-FDTL), police (PNTL) and martial arts groups. Rivalry between the army and the police remains a source of tension, but with an average age of 22 among the population of 1.1 million, the biggest threats to security are evident among the nation’s troubled young.

“This country is composed mostly of youths, but the major challenge that they are facing at the moment is the lack of skills and job opportunities. This is one of the issues that could lead to another social clash,” said Leque, whose trial at Dili District Court was again delayed on June 8.

The Indonesian military’s illegal occupation of Timor-Leste between 1975 and 1999 led to about 200,000 deaths and culminated in the destruction of much of the country’s infrastructure. Shifting a nation’s mentality from resistance to development is key to maintaining stability, Leque said.

“We were coached to use violence against the Indonesian government to achieve our goal of independence or to demonstrate to international societies that we were refusing the Indonesian presence in our country, and most of these youths who were involved in the conflict in 2006 were involved in the violence against Indonesia,” he said.

“It is time for this generation to think for themselves and then their society, their family and their country. It makes no sense when you talk about development if you don’t start from yourself. Human investment is one of the most important issues,” he said. “Creating job opportunities and facilitating youths is one of the priorities in this post-conflict situation.”

But while the streets of Dili are mostly calm, especially compared to 2006, there are still bust-ups between youths in some parts of the city. The government meanwhile has discounted reports that tension between rival martial arts groups is smoldering to the point of destabilizing the country.

Secretary of State Agio Pereira said in a statement that Timor-Leste has one of the lowest crime rates per capita in the world and that reports of serious crime continue to decrease.

But not all crime is reported and the government’s knee-jerk defenses have drawn flak.

Aniceto Neves of the HAK Association, a human rights organization that works with members of martial arts groups, said a balance between sensationalist reporting and defensive posturing is needed.

“The martial arts situation is not something which is dangerous for the security of Timor-Leste,” he said. “It is about social jealousy. It is about social frustration. It is not really affecting the stability of the situation in Timor-Leste.”

Australian gang specialist James Scambary said in his latest report, “Sects, Lies and Videotape,” that fighting, “sporadic but at times intense, sometimes involving over 300 people at a time, is taking place in eight neighborhoods across the city.”

But Neves said “outsiders” have a tendency to exaggerate.

“You cannot consider most places in Dili as dangerous. You cannot consider most of the youths located in different places as dangerous or threatening to others. It is not true. If there is a threat, then the fighting would be very often,” he said.

Nelson Belo, the director of Fundasaun Mahein, a local NGO focused on security sector issues, said Dili is stable, but the problem of unemployment must be addressed or else it could pose a serious threat.

Gainful employment is hard to come by in Timor-Leste, which has only been formally independent since 2002. Subsistence farming is the norm and half the country remains illiterate.

“The problem is language,” Belo said, adding that many Timorese feel unable to get top jobs in the country because they are unable to speak Portuguese, one of Timor-Leste’s official languages, or English.

“Many Timorese only apply for jobs that are insecure,” he said. “They only apply for jobs as security staff or cleaners, and so many of them are not in the decision level and this creates jealousy.”

The government should review its language policy so that Timorese who are unable to speak Portuguese and English can have the same opportunities as those who can, said Belo.

“Many internationals have good jobs and so people start to feel like they are guests in their own country,” he added.

The key to maintaining stability in Timor-Leste is greater involvement of people at the community level to shape future policies on security and better reflect the needs of the population, he said.

Another significant problem is the lack of coordination between Timor-Leste’s army and police force and the UN Police (UNPOL). The PNTL have been re-assuming policing duties from the UN on a district-by-district basis. To date, six of 13 districts have been handed over.

Cillian Nolan, a Dili-based analyst for the International Crisis Group, reported in February that it remains a “fiction” that the UN is in charge of policing Timor-Leste.

“The reality is a lot murkier. A formal handover of ‘executive policing responsibilities’ is progressing on a district-by-district basis, but response to recent events resembles a collective abdication of responsibility,” he wrote.

Recent allegations of excessive use of force have been leveled at the police over the beating of an unarmed man during a fishing competition and the fatal shooting of an unarmed youth in Dili last year.

In its latest “Security Sector Reform Monitor” for Timor-Leste, the Centre for International Governance Innovation (CIGI) warned against the current militarization of the PNTL under police commander Longuinhos Monteiro.

“This situation underscores the need for a review of paramilitary policing and a drastic reduction in the number of PNTL weapons in a country with few illicit firearms.

“Everyday sightings of armed F-FDTL soldiers and PNTL officers, including paramilitary police units with semi-automatic assault rifles and district task force units in riot gear have increased substantially since the 2006 crisis,” according to the CIGI report.

Earlier this year, the police and military launched a six-month joint campaign after unfounded reports surfaced of “ninjas” terrorizing locals in the western districts. The heavy-handed response was widely criticized and cited as Monteiro’s way of justifying the gun-toting Public Order Battalion he created last year.

Monteiro’s show of strength may have had more to do with winning popularity points than hunting ninjas, but the stunt backfired as a torrent of complaints about human rights violations rained in on Monteiro’s men.

Then, in May, reports of a shoot-out between an illegally armed group and police in Ermera District spread through local media and triggered another wave of ninja talk, with Monteiro once again talking up the need for police action.

NGO Fundasaun Mahein on June 7 released a report casting doubt over Monteiro’s claims that there was an illegal group of gun-toting menaces on the loose, citing conflicting police reports and a lack of evidence.

“The alarmism raised by the general commander, Longuinhos Monteiro, is no different from the invention of the ninja situation in Bobonaro and Suai,” the report found.

“The rumors of illegal groups are strongly connected with PNTL’s militarization and have the potential to create competition between PNTL and F-FDTL.”

But for all the criticism, there have been improvements in the country’s police force, said Silas Everett, the country representative of the Asia Foundation in Timor-Leste.

“The police have been undertaking a transformation here, and in terms of community policing, there has been a real growing acceptance of it as an appropriate policing strategy. Officers are going out there and engaging with communities and all of that doesn’t make it into the media,” said Everett.

“In Timor-Leste, stories pick up on the violence, the poverty, and not enough is said about the good things that are happening, especially in regards to the security sector,” he added.

Yet even if security is bolstered, Timor-Leste’s ineffective justice system needs significant investment.

Neves added, “During the crisis in 2006 until present times, there are a number of people who suffered damages, who lost their houses, lost their families, had things stolen—there were people who killed—but what people face now is the absence of justice.”

A lack of qualified prosecutors has led to a backlog of about 5,000 cases at the Prosecutor General’s office.

“There is no responsibility. The ones who are suspected of killing are just free, just going around and walking freely. It makes people frustrated. Very easily they can turn to violence,” he said. “Social frustrations regarding the justice system are provoking people to be angry with each other and then they are fighting.”

Apr 17, 2010

Obama Weighs Supreme Court Nominees, and Each Potential Battle - NYTimes.com

Image by dbking via Flickr

By CHARLIE SAVAGE

WASHINGTON — As President Obama’s advisers consider Supreme Court nominees, White House officials and political activists are focusing on the vulnerabilities that conservatives could exploit to portray them as so-called liberal judicial activists, according to interviews and a review of documents.

Richard Viguerie, a conservative fund-raiser who is developing direct-mail and Internet campaigns about the coming nominee, said conservatives relished the prospect of a fight with Democrats over the Supreme Court before the November election.

“The more material he gives us to work with, the easier the battle will be,” Mr. Viguerie said. “The more quickly we can identify that person as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is.”

White House aides have said they were considering as many as 10 potential nominees to succeed retiring Justice John Paul Stevens, but three contenders have drawn the most attention: Solicitor General Elena Kagan and two federal appeals court judges, Diane P. Wood and Merrick B. Garland.

Conservatives activists say they have already conducted opposition research into Judge Wood and Ms. Kagan because they were finalists for the seat filled by Sonia Sotomayor last year. Some of those files, obtained by The New York Times, show that if Mr. Obama nominates Judge Wood, conservatives would seek to portray her as an abortion-rights extremist who is hostile to Christians. Should the pick go to Ms. Kagan, conservatives are likely to accuse her of subordinating national security to a gay rights agenda.

Conservatives say they have yet to find as much potential ammunition in Judge Garland’s record, so there is debate over how aggressively to attack him if he is nominated. Still, some say, there might be enough material to portray him as a proponent of Big Government regulations who wants to give greater rights to people accused of terrorism.

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Defenders of the potential nominees argue that portraying any of them as ideologues would be a misleading caricature, one that relies on the premise that nearly all Democratic appointees are “out of the mainstream.”

“No matter who the president nominates, we fully expect that many Republicans will oppose the nominee and attempt to brand him or her as ‘outside the mainstream,’ ” said Ben LaBolt, a White House spokesman. He said Mr. Obama would pick “someone who has a rigorous legal intellect, respects the limits of the judicial role and has a keen understanding of how the law impacts the daily lives of Americans.”

Still, opposition research files compiled by conservative activist groups suggest that Judge Wood would be the riskiest choice. M. Edward Whelan III, a former Bush administration lawyer who blogs for the conservative National Review, has called her “a hard-left judicial activist and aggressor on culture-war issues.” And this month, Americans United for Life, an anti-abortion group, said Judge Wood’s “record shows she places her pro-abortion ideology above her judicial duty.”

Conservatives point to several cases in which she voted to strike down laws restricting abortion, including a ban on the procedure opponents call partial-birth abortion and an “informed consent” law similar to one the Supreme Court had previously upheld. She was also twice reversed by the Supreme Court in a long-running civil lawsuit, in which she approved applying extortion laws to an aggressive group of abortion clinic protesters.

Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge a Bush administration program that gave taxpayer money to religious groups and the Indiana House of Representatives’ practice of opening sessions with sectarian prayers. And she sided with a public university that revoked the status of a Christian club because it denied membership to gay people.

Judge Wood’s defenders say that she has a lengthier record on social issues than other potential nominees only because more such cases came before her court. Moreover, they say, in many of those cases, including several involving abortion, Republican appointees — often including the renowned conservative Judge Richard Posner — voted the same way she did.

There is less potential fodder in Ms. Kagan’s record. Still, as former dean of Harvard Law School, she earned conservative enmity by limiting the access of military recruiters to campus because of the Pentagon’s policy of not allowing gay men and lesbians to serve openly. The law school had long restricted military recruiters under its antidiscrimination policy, but in 2002, Ms. Kagan’s predecessor had lifted that ban after the Pentagon, invoking a statute known as the Solomon Amendment, threatened to cut off federal aid to universities that blocked military recruiting.

But in 2004, Ms. Kagan briefly reinstated the recruiting restrictions because an appeals court had called the legality of that statute into question. She dropped it again a semester later — while denouncing the military’s policy of discriminating against gay men and lesbians as “deeply wrong” — after the Pentagon again threatened Harvard’s financing. In addition, when the Supreme Court reviewed an appellate ruling over the issue, Ms. Kagan signed a “friend of the court” brief arguing that universities could bar military recruiters without losing their financing, so long as their antidiscrimination policy did not single out the military. But the court unanimously upheld the statute.

Curt Levey of the conservative Committee for Justice, said her handling of the recruiting matter would generate criticism on both national security and gay rights grounds. And Liz Cheney, a daughter of former Vice President Dick Cheney and a former student of Ms. Kagan’s, recently declared in a Fox News discussion about her that “not allowing the military to recruit on campus clearly was very radical.”

Defenders of Ms. Kagan note that the recruiting restrictions had been a longstanding policy at Harvard and other schools. And, during her solicitor-general confirmation, she endorsed counterterrorism policies like holding Qaeda suspects without trial and declared that there is no federal constitutional right to same-sex marriage.

Less has come to light that could be used against Judge Garland. Still, some researchers have pointed to preliminary findings that could be fodder for attack.

For example, while Judge Garland has not often dealt with social issues, at a 2005 book event, he reportedly described the release of the papers of the late Justice Harry Blackmun — the author of the 1973 Roe v. Wade abortion rights decision — as a “great gift to the country.”

Phillip Jauregui, the president of the conservative Judicial Action Group, said that remark sent an alarming signal to social conservatives. “The fact that he would use those words to describe Harry Blackmun’s papers is cause for concern,” he said.

Because the District of Columbia Circuit hears many challenges to federal agency regulations, Judge Garland also has a long record of voting to uphold such federal authorities — an issue that could resonate with the libertarian sentiment on display in the Tea Party movement.

Finally, Judge Garland has also several times sided with the rights of detainees. He voted to overturn the military’s determination that a Chinese Muslim detainee at Guantánamo Bay prison in Cuba was an “enemy combatant.” He also voted to allow former detainees who had been held at the Abu Ghraib prison in Iraq to sue private contractors accused of being involved in abuses.

Still, defenders argue that Judge Garland has strong national security credentials; before becoming a judge, he was a prosecutor who oversaw the cases against Timothy McVeigh, the Oklahoma City bomber, and Theodore J. Kaczynski, the so-called Unabomber. He also sided against Guantánamo detainees in a 2003 case, later reversed by the Supreme Court.

And Walter Dellinger, a solicitor general in the Clinton administration, said that all three were respected by prominent conservative law professors and judges who, he said, would vouch for their “reputations for integrity, fairness and being open-minded” if they were nominated.

“This is an era where any nominee is going to be attacked,” Mr. Dellinger said. “But I think the attacks from the right are not credible about any of these three.”

Apr 6, 2010

Israeli Gag Order Begins to Slip in Security Leak Case - NYTimes.com

Image via Wikipedia

By THE NEW YORK TIMES

A young Israeli journalist is scheduled to go on trial in Israel in mid-April on accusations of serious security offenses, possibly including espionage, according to Israelis familiar with the case.

A court-imposed gag order has prevented any reporting of the case in Israel, but on Tuesday, a retired Israeli Supreme Court judge sharply criticized the forced news blackout, saying in a radio interview that it must be fought, and stirring a public furor.

The journalist, Anat Kamm, 23, is accused of having copied Israeli military documents concerning the premeditated killing of Palestinian militants in the West Bank and of leaking them to a reporter. She apparently had access to the documents during her compulsory military service.

Observers have speculated that the recipient was Uri Blau from the liberal Haaretz newspaper, and that he used the documents as the basis for a 2008 exposé.

Ms. Kamm has been held secretly under house arrest for more than three months. After leaving the military, she had been working for Walla!, a Hebrew Web site partly owned by Haaretz.

Constrained by the gag order, the Israeli news media has so far made only cryptic references to the case. On March 9, for example, The Seventh Eye, an electronic journal of media affairs published by the Israel Democracy Institute, an independent research body in Jerusalem, ran an item saying simply that Ms. Kamm was about to go on unpaid leave from Walla!, without explaining why.

The popular Israeli newspaper Yediot Aharonot suggested in its April 1 edition that readers search the Internet with keywords “Israeli journalist gag” in order to learn about an affair of interest to Israelis that could only be reported on abroad. And on Tuesday the same newspaper ran a translation of an article by the American journalist Judith Miller on the case, with all the details that would have violated the gag order literally blacked out.

If Ms. Kamm is found guilty, informed observers said she could face up to 15 years in jail.

The case has already received extensive coverage abroad. Details began to emerge in mid March on a blog called Tikun Olam, or Repairing the World, by an American writer, Richard Silverstein. The New York-based Jewish Telegraphic Agency, the British newspapers Guardian and Independent newspapers and The Associated Press have also written about the affair.

According to The Independent, Mr. Blau, the Haaretz reporter suspected of having used the confidential military documents, is currently “hiding in Britain”.

The article by Mr. Blau at the center of the storm was published in November 2008. It focused on an episode in June 2007 in which two Palestinian militants belonging to the extremist Islamic Jihad group were killed by Israeli security forces in the West Bank. The military said at the time that the two were killed in an exchange of fire with Israeli forces.

However Mr. Blau noted that months before, one of the two militants, Ziad Subhi Muhammad Malaisha, had been marked as a target for assassination by the Israeli army’s Central Command, which is responsible for the West Bank.

Mr. Blau’s article suggested that Mr. Malaisha’s killing contravened an Israeli Supreme Court ruling from December 2006 that strictly limited the circumstances in which the military is permitted to carry out preemptive strikes. Haaretz printed copies of Central Command documents stating that Mr. Malaisha and two other Islamic Jihad leaders were eligible targets alongside the report.

Israeli news media were not even allowed to mention that there was a gag order in place, according to Uzi Benziman, the chief editor of The Seventh Eye. But in a Tuesday morning interview with Army Radio, Dalia Dorner, the retired Supreme Court judge who is now the president of the Israeli Press Council said the gag order handed down by a magistrate’s court was “regrettable,” and should be fought all the way up to the Supreme Court.

Ms. Dorner’s comments opened the floodgates to Israeli debate about the imposition of such gag orders, though the court ruling still prevented any discussion of the actual case.

Mordechai Kremnitzer, a law professor at Hebrew University and a senior fellow of the Israel Democracy Institute, said that Israel’s treatment of suspected criminal offenses in the security realm was “draconian.” By isolating the suspect and preventing any public debate, he said, the authorities could more easily pressure the suspect to accept some measure of guilt, arrive at a plea bargain and settle the case “with no noise.”

Mr. Kremnitzer also criticized the ease with which courts in Israel hand out gag orders.

“Only the poor Hebrew readers do not know what is going on,” he said of Israelis unable to read foreign reports about the case in English. “It is an absurd situation,” he said.

The Haaretz newspaper and Israel’s Channel 10 are fighting to lift the gag order. Mibi Moser, the lawyer representing Haaretz, said there would be a court hearing on the matter on April 12, if the gag order was not lifted before.

Mr. Moser is also representing Mr. Blau of Haaretz, though he refused to give any details of that aspect of the case.

Jan 9, 2010

Social networking among jurors is trying judges' patience

Image via Wikipedia

By Del Quentin Wilber
Washington Post Staff Writer
Saturday, January 9, 2010; C01

Al Schuler, one of 12 jurors weighing the fate of a 23-year-old charged with killing a homeless man in Maryland, was confused by the word "lividity" and what role it might have played in explaining the circumstances of the victim's beating death.

So, one night after deliberations, the retired engineer did what so many people do in the digital age: He looked up the definition on Wikipedia, the online encyclopedia. "It was just a definition, like going to the dictionary," Schuler said. "It was very innocent."

A Maryland appeals court didn't think so. In throwing out the defendant's first-degree murder conviction and ordering a new trial, the court ruled that Schuler's inquiry violated an Anne Arundel County judge's order prohibiting jurors from researching the case.

Schuler's query is just the latest example of how modern technology and an information-saturated culture are testing centuries-old notions of how juries and judges mete out justice. The issue garnered national attention recently in Baltimore, where five jurors were accused of using a social-networking site to inappropriately discuss the ongoing trial of the city's mayor.

Judges and legal experts are particularly concerned about how technology and culture are affecting jurors and a defendant's right to a fair trial. The Internet has provided easy and instant access to newspaper archives, criminal records, detailed maps, legal opinions and social-networking sites, such as Facebook, all at the anonymous click of a mouse in jurors' homes or on the tiny keyboards of their cellular phones.

"This is a generational change, and I don't know if the legal system is ready for it," said Thaddeus Hoffmeister, a law professor at the University of Dayton Law School, who closely studies jury issues.

Image by The Library of Congress via Flickr

Judges have long instructed jurors to avoid reading newspaper stories about trials and to not discuss the case with one another, aside from their deliberations. They also warn them not to conduct their own investigations. The rules are designed to ensure that jurors contemplate only the evidence admitted at trial and at the appropriate time. (Jurors are free to discuss cases when they are over.)

Still, in the good old days, the hurdles for industrious jurors were fairly high: They had to physically visit a crime scene or the library or the court clerk's office. To talk about the case with other jurors, they had to pick up a phone or meet in person.

Today, technology has wiped out those barriers, and people have become increasingly reliant on the Internet for information. They have also become more comfortable blogging about the most mundane aspects of their lives -- let alone a sexy trial.

Legal scholars and lawyers disagree about how to handle the problem. Some say judges should warn jurors more explicitly about the Internet, while others advocate giving jurors more information during trials.

Most throw up their hands. No matter what steps are taken, they say, jurors will probably just keep Googling and texting and tweeting.

"I'm not sure what you can do about it nowadays, to tell you the truth, especially for younger people," said A.J. Kramer, the District's federal public defender. "That's what they grow up doing. You just have to figure it's happening. They go home at night and look up whatever they can. That's what people do."

In recent years, a half-dozen cases have popped into public view because the misconduct was egregious enough that judges were forced to decide whether to grant new trials.

In June, for example, a federal judge denied requests by defense attorneys to throw out the conviction of a former Pennsylvania state senator because a juror had posted updates to Twitter and Facebook during the trial. "Day 1 has come to a close," the juror tweeted. In the days before the jury reached a verdict, he told his Facebook friends that they should "stay tuned for a big announcement Monday everyone!"

Last week, a New York appeals court upheld the second-degree murder conviction of a 30-year-old man despite a juror's Internet research into whether the victim's gunshot wound was inflicted at close range.

In both instances, the judges found the tweeting and research did not harm the defendants' right to a fair trial.

But that isn't always the case. In May, a Maryland appeals court ordered a new trial for a man accused of raping his 17-year-old daughter, because a juror had researched "oppositional defiant disorder" on the Internet. The court found the research, communicated to other jurors, "improperly and irreparably influenced the jury's deliberative process."

A New Jersey appeals court in July overturned the aggravated manslaughter convictions of three cousins because a juror had done Internet research about the victim, the defendants and the amount of prison time they faced and had told her colleagues about it. The men will get a new trial.

In Baltimore, defense attorneys for Baltimore Mayor Sheila Dixon, who was convicted of embezzling about $500 in retail gift cards, accused five jurors of improperly becoming friends and chatting about the case on Facebook.

The attorneys alleged that the "Facebook Friends" may have bullied other jurors into the guilty verdict, contending that they were "a caucus separate and apart" from their colleagues. The counselors wanted Circuit Judge Dennis M. Sweeney to throw out the conviction and hold a new trial.

The issue nearly forced Sweeney to question jurors about their conduct, but Dixon and prosecutors reached a surprise plea deal that ended her appeals.

Jurors would probably have faced a less-than-sympathetic audience with Sweeney, who is considered one of the state's leading authorities on jury issues. He penned a newspaper column in June that examined the collision of the Internet and the nation's trial system.

"Modern jurors, so used to instant access, may not fully appreciate the need to divest themselves of the trappings of information-gathering and communication that otherwise dominate their lives," the judge lamented in Baltimore's Daily Record.

Sweeney urged judges to order jurors to specifically avoid discussing their cases on Facebook, MySpace and Twitter -- a warning he repeated during Dixon's trial.

It appears that such admonishments were not enough for the "Facebook Friends."

Jan 4, 2010

U.S. Suspect in Pakistan Defends 'Jihad' Plans

Image by hazy jenius via Flickr

Filed at 10:10 a.m. ET

SARGODHA, Pakistan (AP) -- One of five Americans detained in Pakistan said their aim was to go to Afghanistan to wage jihad against Western forces, defending their intention as justified under Islam.

But he denied any links to al-Qaida or plans to carry out terrorist attacks in Pakistan, as alleged by Pakistani authorities.

Monday was the first time the young Muslims from the Washington, D.C., area have addressed a court after being arrested in early December in the eastern Pakistani city of Sargodha. The case has spurred fears that Westerners are traveling to Pakistan to join militant groups. Pakistani police have said they plan to seek life sentences for the men under the country's anti-terrorism law.

''We are not terrorists,'' one of the men, Ramy Zamzam, told The Associated Press as he entered a courtroom in Sargodha on Monday.

''We are jihadists, and jihad is not terrorism,'' he said.

Jihad has several different meanings in Islam, but Zamzam seemed to be referring to the duty to fight against foreign forces viewed as occupying a Muslim country.

The men, aged 19 to 25, denied they had ties with al-Qaida or other militant groups during a court appearance Monday in Sargodha, said their attorney, Ameer Abdullah Rokri.

''They told the court that they did not have any plan to carry out any terrorist act inside or outside Pakistan,'' said Rokri. ''They said that they only intended to travel to Afghanistan to help their Muslim brothers who are in trouble, who are bleeding and who are being victimized by Western forces.''

The Americans arrived amid tight security. About a dozen police cars escorted the prison van inside the court premises as officers manned the rooftops of surrounding buildings. The men wore handcuffs as they walked into the courthouse for their hearing.

The court remanded the men to prison for 14 days to give police time to prepare their case, said Rokri.

''We have told the court that police have completed their investigation and have enough evidence against the five suspects to try them under anti-terrorism law,'' said police officer Matiullah Shahani.

Image by tonx via Flickr

Police have not said what the group's intended target was, but authorities say the men had a map of Chashma Barrage -- a complex located near nuclear power facilities that includes a water reservoir and other structures. It lies in the populous province of Punjab, about 125 miles (200 kilometers) southwest of the capital, Islamabad.

Pakistan has a nuclear weapons arsenal, but also nuclear power plants for civilian purposes.

The court ordered the release of one of the suspects' fathers, Khalid Farooq, because of a lack of evidence that he had committed any crime, said police officer Tahir Shirazai.

It was unclear if Farooq, also a U.S. citizen, was still in custody since authorities said they had released him more than two weeks ago.

Pakistani police and government officials have made a series of escalating and, at times, seemingly contradictory allegations about the men's intentions, while U.S. officials have been far more cautious. The U.S. is also looking at charging the men -- Umar Farooq, Waqar Khan, Ahmed Minni, Aman Hassan Yemer and Ramy Zamzam.

Officials in both countries have said they expect the men to eventually be deported back to the United States, though charging them in Pakistan could delay that process.

The U.S. Embassy has declined to comment on the potential charges the men face in Pakistan.

Dec 29, 2009

Getting Away with Torture

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By David Cole

1.

In the fall of 2002, Maher Arar, a Canadian citizen on his way home from Tunisia, was pulled out of line by US officials while changing planes at New York's John F. Kennedy Airport. He was locked up for twelve days, much of that time incommunicado, and harshly interrogated. When he was finally allowed to make a phone call, after a week in captivity, he called his mother in Canada, who found him a lawyer.

The lawyer saw Arar on Saturday. The very next night—a Sunday evening—immigration officials held an extraordinary six-hour hearing starting at 9 PM, orchestrated from Washington, D.C. When Arar asked to have his lawyer present, they told him that she had chosen not to participate in the hearing. In fact, the only "notice" they had provided was to leave a message on the lawyer's office voice mail that Sunday night. She got the message Monday morning, and immediately called the immigration service. They told her, falsely, that Arar was being transferred to New Jersey, and she could contact him the next day. In fact, that night federal agents took him on a federally chartered jet to Jordan, and from there to Syria.

In Syria, Arar was handed over to intelligence officials who imprisoned him in a cell the size of a grave, three feet by six feet by seven feet. Syrian security agents tortured him, including beating him with an electric cable, while asking the same questions that FBI interrogators had been asking at JFK—was he a terrorist, was he linked to al-Qaeda, did he know various other persons thought to be associated with al-Qaeda? (The Syrian security forces are widely known for their use of torture, as the US State Department reports every year in its annual Human Rights Country Reports.) After a year, the Syrians released Arar, concluding that he had done nothing wrong.

Arar returned to Canada—this time bypassing JFK. Canada launched a major independent investigation, which concluded that he was wholly innocent, and that Canadian officials had erred in providing the Americans with misleading information about him while he was in US custody. The Canadians erroneously told US officials that Arar was a target of a terrorist investigation; in fact, he had merely been identified as someone who should be contacted to see if he had any information about the target, and was not suspected of any terrorist activity himself. The Canadian parliament offered Arar a unanimous apology, and Canada paid him CAD $10.5 million in compensation.^[*]

But the Canadians were unaware that the US intended to send Arar to Syria, and they had no part in that decision. It was the US, not Canada, that locked up Arar without charges, blocked his access to the courts, spirited him off to Syria, and then provided the Syrians a dossier of questions to ask him while he was being tortured. Arar filed suit in a US court, suing the federal officials who had a part in his mistreatment—including Attorney General John Ashcroft, Deputy Attorney General Larry Thompson, and FBI Director Robert Mueller. As a volunteer for the Center for Constitutional Rights, I am one of Arar's lawyers.

Arar's claims were simple: to forcibly send him to Syria to be tortured violates the Constitution's due process clause, which the Supreme Court has interpreted as forbidding conduct that "shocks the conscience," as well as the Torture Victim Protection Act, which allows torture victims to sue those who subject them to torture "under color of foreign law." Courts have long held that torture is the paradigmatic example of conduct that "shocks the conscience" and violates due process. And Arar alleged that the US defendants sent him to Syria for the purpose of subjecting him to torture under Syrian law. These allegations were largely confirmed not only by the Canadian investigation, but also by the Department of Homeland Security's inspector general. In twenty-five years as a lawyer, I have never had a clearer and more egregious case of abuse.

Yet thus far the US courts have shut the door entirely on Arar, not even allowing him to offer proof of his claims. In Arar's latest setback, an eleven-judge panel of the US Court of Appeals for the Second Circuit ruled on November 2, 2009, that "special factors counseling hesitation" barred Arar's core claim that his constitutional rights were violated when he was sent to be tortured. The Supreme Court has ruled that suits for damages are generally available for such violations of constitutional rights, but has refused to permit suits where Congress has provided an alternative remedy, or where "military discipline" would be undermined by permitting soldiers to sue their commanding officers. The Bush administration argued that Arar's claim for damages should similarly be dismissed because it implicated sensitive issues of national security, foreign policy, and secret diplomatic communications between the US and foreign governments. The seven-judge majority agreed, finding that any adjudication would likely involve classified information, and could not proceed

without inquiry into the perceived need for the [extraordinary rendition] policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.

Two things are remarkable about the majority's reasoning. First, the rationale quoted above appears to presume that sending people to be tortured may be permissible depending on the "geopolitical circumstances" or "the threats to which [the torture] responds." But under our law and international law, torture is never permissible, and thus these concerns ought not even enter the picture. Second, to dismiss Arar's case at this early stage, the court had to find that, even accepting as true his allegations that federal officials sent an innocent man to be tortured, Arar would be entitled to no remedy. The court concluded, without actually reviewing any classified evidence, that Arar's case was too sensitive to adjudicate, because it would require court review of national security policy and confidential diplomacy. The court suggested that Arar ask Congress for a remedy instead—notwithstanding that he is a foreign national with no voice in the US political process, and that US officials have prohibited him from entering the country for any purpose.

Four judges dissented. Judge Guido Calabresi, former dean of the Yale Law School, predicted that "when the history of this distinguished court is written, today's majority decision will be viewed with dismay." Judge Rosemary Pooler dismissed the majority's national security concerns as "hyperbolic and speculative," and maintained that Arar should have a remedy "to reinforce our system of checks and balances, to provide a deterrent, and to redress conduct that shocks the conscience."

Judge Barrington Parker, appointed to the Second Circuit by President George W. Bush, wrote that "if the Constitution ever implied a damages remedy, this is such a case—where executive officials allegedly blocked access to the remedies chosen by Congress in order to deliver a man to known torturers." Had Arar been able to get to a court to challenge his removal before federal officials put him on a plane, the court would plainly have had authority to review the case and forbid the removal; courts routinely enjoin removal when a foreign national faces a substantial risk of torture. The fact that the defendants lied to Arar's lawyer to keep her from filing an action when the torture could have been averted, in Parker's view, only strengthened the case for a damages remedy after the fact; otherwise, the courts are essentially rewarding the obstruction of justice.

Judge Robert Sack reasoned that if Arar had been tortured by federal officials at JFK, he would indisputably have a right to sue, and that the defendants' choice to outsource his torture abroad should not insulate them from liability:

I do not think that whether the defendants violated Arar's Fifth Amendment rights turns on whom they selected to do the torturing: themselves, a Syrian Intelligence officer, a warlord in Somalia, a drug cartel in Colombia, a military contractor in Baghdad or Boston, a Mafia family in New Jersey, or a Crip set in South Los Angeles.

What no judge pointed out, however, is that this is the same court of appeals that has regularly entertained lawsuits for torture and other gross human rights violations against foreign government officials, even when the wrongs were committed wholly outside the United States and affected only foreigners. One might think that such cases, in which we stand in judgment over other countries' alleged wrongs, would be even more diplomatically sensitive to adjudicate. Yet one month after the court dismissed Arar's suit, it affirmed a $19 million judgment against Emmanuel "Toto" Constant, the former leader of a Haitian death squad, for rape, torture, and attempted killing of three Haitian women by forces under his control. Under this precedent, had Arar been able to sue the Syrians who participated in his torture, the federal courts would have been ready and able to hear his claims. (He could not because none of the Syrians were in the United States, a prerequisite to the court exercising jurisdiction.) But because he sought to hold US officials accountable, his claims were too sensitive even to consider. International human rights, it seems, are something the US Court of Appeals for the Second Circuit stands ready to impose on others, but not on ourselves.

The same week that the court of appeals in New York dismissed Arar's case, a court in Milan, Italy, convicted twenty-two American CIA agents, a US Air Force lieutenant colonel, and two Italian military intelligence agents for the "extraordinary rendition" of a Muslim cleric, Abu Omar. He was abducted from the streets of Milan in 2003 and delivered to the Egyptian security service, which imprisoned him for four years without charges and tortured him, before returning him to Italy, uncharged.

That case involved the same sort of secret information, diplomatic communications, and conduct on the part of US officials as Arar's. In Italy, however, the courts did not deny all accountability at the threshold, but instead addressed each of these issues in turn as they arose. Some claims against some defendants were dismissed because they rested on secret information, but the case proceeded against most of the defendants. As the Italian court showed, concerns about national secrets and confidential international communications can be accommodated in the course of litigation, and need not serve as a threshold bar to any accountability whatsoever.

2.

More than sixty years ago, in a series of trials conducted in Nuremberg, Germany, the United States and its allies made history by holding Nazi officials accountable for war crimes and crimes against humanity committed during World War II—including abductions, disappearances, torture, and genocide. The Nuremberg judgments in turn had a critical part in the birth of international human rights. In the ashes of World War II, many nations, working with the United States, created a regime of rights and responsibility designed to affirm the inviolability of human dignity and to ensure that such atrocities would not happen again.

The legacy of that period includes a set of charters defining the scope of human rights, such as the Universal Declaration of Human Rights, the Geneva Conventions, and the international treaty prohibiting torture. Equally if not more importantly, however, the same legacy includes the establishment of forums for holding rights violators accountable—including international war crimes tribunals, regional human rights courts (such as the European Court of Human Rights), the International Criminal Court, and domestic courts that hear international human rights claims. Nuremberg was as much about the necessity of a forum for accountability as it was about the norms themselves. In the absence of effective enforcement, international human rights are mere words on paper.

The last forum I have mentioned—the domestic court—may be the most important. By bringing human rights home, domestic courts give them a concreteness and immediacy that is critical to their effectiveness. Here, too, the United States has been a leader. In 1980, the same court that dismissed Arar's case ruled, in a landmark decision, Filartiga v. Pena-Irala, that federal courts could adjudicate claims by foreign citizens against foreign defendants for human rights violations committed abroad. Filartiga involved a young man who had been abducted, tortured, and killed by a Paraguyan police chief. When the family learned that the officer had fled to the United States, they sued him in US court. The Court of Appeals for the Second Circuit declared that the torturer is the "enemy of all mankind," and therefore may be sued for his wrongdoing wherever he is found.

The usual reluctance to have a US court pass judgment on overseas conduct not involving any American citizens was overcome by the fact that the prohibition on torture is universal. Since that decision, US courts have adjudicated human rights claims involving brutality in Burma, South Africa, Yugoslavia, Nigeria, Mexico, the Philippines, Argentina, and many other nations. The Supreme Court upheld the practice in 2004. Yet according to the Second Circuit, the same sorts of claims are too sensitive to permit adjudication when brought against US officials.

In addition to a forum for enforcement, human rights also require equal application. Their purpose is to identify those norms so fundamental to human dignity that no government may violate them. Indeed, Nuremberg's legacy has always been somewhat clouded by the fact that the Soviet Union, itself responsible for terrible crimes against humanity, participated as a prosecutor, but was never held accountable for its own crimes. If international human rights are to be legitimate, they must be universal, and not a euphemism for "victor's justice." The torture standard does not differ based on whether the United States, Haiti, or Paraguay is engaged in the practice. The Italian court convicted Italians and Americans alike. If anything, it should be easier, not more difficult, to hold one's own government officials accountable than to hold foreign government officials accountable.

The notion that domestic courts can hold another country's torturers accountable is not an American anomaly, as the Italian case illustrates. International law recognizes a principle of "universal jurisdiction," which holds that torturers can be held to account anywhere. Applying that principle, a Spanish judge in 1998 issued an arrest warrant for former Chilean dictator Augusto Pinochet for crimes against humanity, including torture. Great Britain's highest court, the Law Lords, ruled that the warrant could be enforced to extradite Pinochet from England to stand trial. (In the end, Pinochet was returned to Chile on medical grounds, but was then indicted there.) The same Spanish judge, Baltasar Garzón, is currently investigating whether criminal charges should be leveled against the Bush administration lawyers responsible for authorizing torture at Guantánamo—John Yoo, Alberto Gonzales, David Addington, Jay Bybee, William Haynes, and Douglas Feith. The torture they authorized was inflicted on several Spanish citizens at Guantánamo, causing terrorist charges against them in Spain, also prosecuted by Garzón, to be dismissed.

The principle of universal jurisdiction recognizes that if a country is responsibly pursuing accountability for its own wrongs, a foreign court should defer to the domestic process. In his speech at the National Archives on May 21, 2009, President Obama insisted that the Justice Department and the courts "can work through and punish any violations of our laws or miscarriages of justice." Cases like Arar's belie his confidence, as does the Justice Department's failure even to investigate the lawyers who authorized the CIA and the military to engage in torture and disappearances as a means of getting suspects to talk. If we fail to carry out this responsibility, other nations, using principles that the US did much to develop, may take up the charge.

—December 16, 2009

Notes

^[*]See Raymond Bonner, "The CIA's Secret Torture," The New York Review, January 11, 2007.

Dec 25, 2009

Chinese dissident Liu Xiaobo sentenced to 11 years on 'subversion' charges

Image by k-ideas via Flickr

By Steven Mufson
Friday, December 25, 2009; A10

BEIJING -- China's leading dissident, Liu Xiaobo, was sentenced to 11 years in prison on Friday after a court found the 53-year-old literary scholar guilty of "inciting subversion to state power" through his writings and role in Charter 08, a petition advocating human rights, free speech and an end to one-party rule.

The sentencing sent a signal that the Chinese Communist Party will continue to stifle domestic political critics, especially those who seek to organize their fellow Chinese. And it provided evidence that political modernization might not go hand in hand with China's economic modernization, contrary to past predictions by Chinese dissidents, U.S. business executives, political theorists and proselytizers of the Internet age.

According to the Dui Hua Foundation, a San Francisco-based human rights group, Liu's sentence was longer than any other sentence handed down for "inciting subversion" since the charge was established in the 1997 reform of the criminal law.

"You can think democracy, you can talk democracy, but you can't do democracy," said Li Fan, director of the World and China Institute in Beijing.

Image by jeanyim via Flickr

Rebecca MacKinnon, a fellow at the Open Society Institute and co-founder of GlobalVoicesOnline.org, said the case "certainly seems to reflect a high level of sensitivity and very low level of tolerance."

A decade ago, she said, "there was a great deal of optimism" about village elections, plans for separating party and state functions, and talk of other political reforms. Many analysts said a more open society would yield a more open political system.

But reform initiatives have stalled, and there was little evidence of openness in the handling of Liu's case this week.

His trial, which took place at the Beijing No. 1 Intermediate People's Court, lasted less than three hours Wednesday. The judge rejected evidence the defense sought to introduce and limited the speaking time of Liu's attorneys to 14 minutes, according to one of Liu's brothers. He said that 18 mostly young people were allowed to listen to the proceedings but that Liu's wife, Liu Xia, could not. She did attend the Friday sentencing, marking only the third time she had seen her husband since he was detained more than a year ago.

The judge also barred journalists and foreign diplomats from attending. In contrast to the 1990s, when visits by leading international envoys often brought the release of dissidents, China has ignored calls by the Obama administration and other Western governments for Liu's release.

After the sentencing, which foreign diplomats were also barred from attending, Gregory May, first secretary with the U.S. Embassy, told reporters outside the courthouse that the United States was concerned about Liu's case and would continue to push for his release.

Chinese diplomats have rejected such calls as interference in China's affairs.

Mo Shaoping, a prominent human rights lawyer, said that the success of the 2008 Olympics, the economic crisis in the West and the 60th anniversary of the communist takeover had made the Chinese government "more and more arrogant" toward international critics.

Image via Wikipedia

Worse yet, Mo said, the judge had violated China's procedures.

"China has solved the past problem that there were no existing laws. Now we have more than 200 laws and over a thousand regulations. We have laws that cover every aspect of social affairs," said Mo, who could not represent Liu because he also had signed Charter 08. "But the government doesn't follow those laws, not even the laws they wrote themselves."

One of Liu's brothers, Liu Xiaoxuan, said the prosecutors focused on 350 words collected from half-dozen of the 490 articles Liu wrote over a five-year period. In those excerpts, Liu Xiaobo sharply criticized the Chinese government, calling it a dictatorship that sought to use patriotism to fool people into loving the government rather than the country, the brother said.

Liu Xiaoxuan, a professor of material engineering at Guangdong University of Technology, said his brother told the court that the country's "progress can't cover up the mistakes you've made and the flaws of your institutions."

Other signatories of Charter 08 also are facing government harassment. Zhang Zuhua, primary drafter of the manifesto, is under heavy police surveillance at his home. Others have lost prize research or teaching posts.

The Communist Party has always been wary of people seeking to organize outside of officially recognized groups, whether for political or other causes. Last week, security officials formally arrested Zhao Lianhai, who was already in detention for organizing families whose babies were affected by last year's tainted-milk scandal.

Many foreign diplomats see the Christmas Day sentencing of Liu Xiaobo as timed to minimize outside attention, with the world focused on celebrations. In 2006, the Chinese rights lawyer Gao Zhisheng was convicted of "subversion" three days before Christmas. In 2007, AIDS activist Hu Jia was arrested five days after Christmas.

The Charter 08 declaration was modeled on Czechoslovakia's Charter 77 drive, which eventually contributed to the end of communist rule there. Started with about 300 signatures, it has gathered thousands more online.

Among other things, Charter 08 says: "For China the path that leads out of our current predicament is to divest ourselves of the authoritarian notion of reliance on an 'enlightened overlord' or an 'honest official' and to turn instead toward a system of liberties, democracy and the rule of law."

On Friday, one of the signers of Charter 08 arrived outside the courthouse where Liu was sentenced to show support for Liu.

Yang Licai, 38, said he was disappointed by the sentence, and saw it as evidence that, despite the government's declarations of a "harmonious society," Chinese still lack basic freedoms. Surrounded by plainclothes police, Yang said he did not fear arrest for being outspoken.

"Right now I am not afraid," he said. "I am willing to shoulder my responsibility."

Researcher Zhang Jie contributed to this report.

Dec 23, 2009

Liu Xiaobo: China's top pro-democracy dissident goes on trial

The trial of leading Chinese dissident Liu Xiaobo for 'state subversion' lasted just a few hours Wednesday as supporters and diplomats barred from attending thronged the courtroom in near-freezing cold. A verdict is expected Friday.

By Jonathan Landreth Correspondent
posted December 23, 2009 at 6:13 am EST

Beijing —

The subversion trial of Liu Xiaobo, China's most prominent dissident, opened and shut in Beijing on Wednesday in strict secrecy without an immediate outcome. The verdict is now expected to be postponed until Christmas Day.

The delay and the degree of secrecy – even Mr. Liu’s wife was barred from the courtroom – contrast sharply with the widespread international attention that the case against the Tiananmen-era pro-democracy activist has drawn.

It is "quite unusual" for a Chinese criminal trial to be left hanging this way, said Teng Biao, a prominent human rights lawyer and one of 60 people who stood outside the courtroom Wednesday in near-freezing temperatures before he and seven others were removed by plainclothes police. “Although I cannot predict the outcome, it is very likely that Liu Xiaobo will be guilty and imprisoned for at least five years under Chinese criminal law," he told The Monitor by telephone.

Liu's attorney Ding Xikui, speaking to The Monitor by telephone in defiance of a court order barring press interviews after he left the roughly three-hour morning trial, said the court would announce a verdict on Friday.

Held for a year without trial

Liu faces up to 15 years in prison, the maximum sentence for "incitement to subvert state power," a catchall charge often used by Chinese prosecutors to silence critics of the one-party government.

The essayist and literary critic was detained on Dec. 8, 2008, apparently for his role in drafting "Charter 08," a call for greater democracy in China. The charter, initially signed by 300 people, was published on the Internet two days later to mark the 60th anniversary of the Universal Declaration of Human Rights. It has since attracted more than 10,000 signatures, mostly from mainland Chinese.

Meanwhile, Liu was held in a secret location for six months, then formally arrested and transferred to Beijing's Detention Center No.1.

During Wednesday's trial, about 30 supporters hung up and handed out yellow ribbons of support outside the court. Another 30 onlookers, including about a dozen Western diplomats and 50 police, stood by watching, according to eyewitness accounts.

The defendant's brother-in-law, Liu Hui, who was allowed into the courtroom, told The Associated Press that prosecutors had charged Liu Xiaobo with crimes they called "serious."

"Absolutely not," says Teng of the charges against Liu. "His actions, including the organization of Charter 08 and his publishing essays and articles, all deserve constitutional protection, but the Chinese government is used to putting the outspoken away."

US Embassy political officer Gregory May, barred from the courtroom, told reporters sequestered outside that Washington called on Beijing to release Liu "immediately" and "to respect the rights of all Chinese citizens to peacefully express their political views."

Signs of support proliferate

Liu, a former university professor and an outspoken critic of the government, previously spent two years in prison for his role during the Tiananmen Square protests in 1989 and three years in a "reeducation through labor" camp for challenging one-party rule in Web postings.

The decision by Chinese authorities to bring Liu to trial defied international condemnation and drew protests from leading authors, including Salman Rushdie, Umberto Eco, and Wole Soyinka.

Though Liu's supporters outside the courthouse had their yellow ribbons taken away by police, followers of the trial using the social networking site Twitter added yellow ribbons to their online profile pictures.

"There are more and more and Chinese people participating in the defense of human rights, but since there's no judicial independence, if the Chinese government wants to continue its persecution, it can,” says Teng. “There is little we can do but continue our work.”

– Wang Ping contributed reporting.

Dec 21, 2009

Minority farmers seek redress, claim USDA discrimination

Image via Wikipedia

By Kari Lydersen
Washington Post Staff Writer
Monday, December 21, 2009; A03

In November, the Agriculture Department began negotiations with Native American farmers in a class-action suit alleging systematic discrimination in the agency's farm loan program. About 15,000 black farmers have received almost $1 billion since the settlement of a similar class-action suit, known as the Pigford case.

Hispanic farmers who have filed similar lawsuits hope this means the government may settle with them, too, even though a federal judge has denied them class certification. Female farmers also filed suit but have been denied class certification.

All four groups allege that they were denied farm loans and given loans with impossible conditions because of their race or gender.

Alberto Acosta, a New Mexico chili farmer, sought help a decade ago from the loan program meant as a last resort for farmers who cannot secure private financing. In 1998 and 1999, he was granted $92,000 in loans by the department.

But because Acosta speaks Spanish, a USDA loan officer was required to sign off on every significant expense. That meant he had to drive 260 miles each way to the office whenever he wanted to buy a piece of farm equipment, and he had to pay for and provide his own translator for each visit.

These conditions ultimately proved so taxing that Acosta's home and farm went into foreclosure, he said in a sworn declaration.

"I feel that this discrimination would not have occurred if I were Anglo," Acosta stated.

Since U.S. District Judge James Robertson in the District denied class certification to the Hispanic and female farmers, their cases must proceed through the court system individually. But the federal government could still decide to treat the cases as classes in a settlement.

"Justice dictates that if in fact the government discriminated against a class of people and we recognize that discrimination existed, you don't use legal barriers -- , i.e., opposing class-action status -- to shield the government," said Sen. Robert Menendez (D-N.J.).

Agriculture Department spokesman Caleb Weaver said that "USDA is committed to ending all forms of discrimination and addressing past allegations in a timely and fair manner." He said the department is reviewing civil rights complaints, has launched an external evaluation of services provided and "for the first time since 1997, we will have investigators on staff to do the field work needed to investigate complaints."

Currently, 110 Hispanic farmers in Texas, New Mexico, Arizona, California, Colorado and Washington are suing the department. But lead attorney Stephen Hill said if the case were certified as a class, there would be tens of thousands of Hispanic plaintiffs. He could not estimate the potential damages they might seek.

"The discrimination followed a pretty distinct pattern," he said. "Denying applications, repeatedly discouraging them from submitting applications, refusing to assist the farmer, and if the farmer persisted and filed an application, it would be dragged out for months so they couldn't get the seed in the ground. And often, for the most flimsy excuses like language problems, they put Hispanic farmers in supervised accounts."

Joe Sellers, lead attorney in the Keepseagle case, which was brought by Native Americans, said court proceedings have been put on hold for at least 60 days while they begin settlement negotiations.

"I credit this administration with genuine interest in fixing these problems that have afflicted the USDA for decades," said Sellers. "I don't expect it will be resolved over the next year; but I do believe they are sincere and determined to set in motion the steps to evaluate the shortcomings of the existing system and make appropriate changes."

Support in Senate

On the Senate floor Nov. 18, Menendez and Sen. Michael Bennet (D-Colo.) called for settlement of the Hispanic farmers' cases.

"It is no secret decades of indifference and discrimination in lending practices at the United States Department of Agriculture have made it difficult for minority farmers, specifically Hispanic farmers, to make a living at what they love to do and have done in many cases for generations, leaving many no choice but to leave the farms and ranches they have tended to all of their lives," Menendez said.

Larry and Robert Chavarria were third-generation farmers in California's San Joaquin Valley, who said their family had never sought a loan until 1994 winter storms decimated their crops. They sought USDA loans but were repeatedly denied. They said a local USDA loan officer also froze their subsidy payments at the behest of a neighboring white farmer with whom they had a dispute. They were forced to sell their land and stop farming in 2000. One brother now works in a prison canteen and the other is a self-employed tax preparer.

"It was our livelihood -- we loved it," said Larry Chavarria. "Now I feel empty, I feel like an echo. You ache, you hurt. This shouldn't have happened. We weren't asking for a handout. But they just raked us over the coals."

Problems said to persist

Farmers and their attorneys say diversity and inclusiveness in the farm loan program have improved in recent years, but they allege discrimination still exists.

David Cantu, who raises cattle and grows watermelon, cotton, corn and other crops on 1,100 acres in south Texas, thinks the Hidalgo County farm loan office turned him down for loans in 2005 because he and his father had spoken out about discrimination at a Hispanic farmers conference and an Agriculture Department listening session that year.

Cantu said he received USDA loans and repaid them on schedule every year since 1997, but was denied with no explanation in 2005. He also says loan office staff members would treat Hispanics as "second-class citizens," serving white clients first and inviting whites into their private offices while speaking with Hispanics only in the lobby.

"Hispanic farmers are a piñata to them," said Cantu, 50, a fourth-generation farmer. "They keep beating us and beating us, and then when they hit us down, they still expect us to keep producing and fill their plates."