Obama seeks to overturn right to counsel before questioning

Obama administration seeks to change police questioning law

The Obama administration is urging the US Supreme Court to overturn a landmark decision that stops police from questioning suspects unless they have a lawyer present.

Telegraph | Apr 24, 2009

By Tom Leonard in New York

The effort to sweep aside the 23-year-old Michigan vs Jackson ruling is one of several moves by the new government to have dismayed civil rights groups.

President Barack Obama has already provoked controversy by backing the continued imprisonment without trial of enemy combatants in Afghanistan and by limiting the rights of prisoners to challenge evidence used to convict them.

The Michigan vs Jackson ruling in 1986 established that, if a defendants have a lawyer or have asked for one to be present, police may not interview them until the lawyer is present.

Any such questioning cannot be used in court even if the suspect agrees to waive his right to a lawyer because he would have made that decision without legal counsel, said the Supreme Court.

However, in a current case that seeks to change the law, the US Justice Department argues that the existing rule is unnecessary and outdated.

The sixth amendment of the US constitution protects the right of criminal suspects to be “represented by counsel”, but the Obama regime argues that this merely means to “protect the adversary process” in a criminal trial.

The Justice Department, in a brief signed by Elena Kagan, the solicitor general, said the 1986 decision “serves no real purpose” and offers only “meagre benefits”.

The government said that suspects have the right to remain silent, and that officers must respect that decision. But it argued that there is no reason a defendant who wants to speak without a lawyer present should not be able to respond to officers’ questions.

Critics argue that the 1986 decision is important to protect vulnerable defendants such as the mentally disabled, poor or juveniles who could be easily swayed by the police.

“Your right to assistance of counsel can be undermined if somebody on the other side who is much more sophisticated than you are comes and talks to you and asks for information,” said Sidney Rosdeitcher, a New York lawyer who advises the Brennan Centre for Justice at New York University.

Stephen Bright, a lawyer who works with poor defendants at the Southern Centre for Human Rights in Atlanta, described the administration’s position as “disappointing – no question”.

Nineteen former judges and prosecutors – including Larry Thompson, the ex-deputy attorney general, and Williams Sessions, a former FBI director – have urged the Supreme Court to leave the 1986 ruling intact.

Every phone call, email or website visit ‘to be monitored’

Every phone call, email or website visit will be monitored by the state under plans to be unveiled next week.

Telegraph | Apr 24, 2009

By Tom Whitehead

The proposals will give police and security services the power to snoop on every single communication made by the public with the data then likely to be stored in an enormous national database.

The precise content of calls and other communications would not be accessible but even text messages and visits to social networking sites such as Facebook and Twitter would be tracked.

The move has alarmed civil liberty campaigners, and the country’s data protection watchdog last night warned the proposals would be “unacceptable”.

Jacqui Smith, the Home Secretary, will argue the powers are needed to target terrorists and serious criminals who are taking advantage of the increasing complex nature of communications to plot atrocities and crimes.

A consultation document on the plans, known in Whitehall as the Interception Modernisation Programme, is likely to put great emphasis on the threat facing Britain and warn the alternative to the powers would be a massive expansion of surveillance.

But that will fuel concerns among critics that the Government is using a climate of fear to expand the surveillance state.

Information Commissioner Richard Thomas, the country’s data watchdog, told the Daily Telegraph: “I have no problem with the targeted surveillance of terrorist suspects.

“But a Government database of the records of everyone’s communications – if that is to be proposed – is not likely to be acceptable to the British public. Remember that records – who? when? where? – can be highly intrusive even if no content is collected.”

It is understood Mr Thomas is concerned that even details on who people contact or sites they visit could intrude on their privacy, such as data showing an individual visiting a website selling Viagra.

Chris Kelly, Facebook’s chief privacy officer, last month revealed he was considering lobbying ministers over the proposal, which he described as “overkill”.

The proposed powers will allow police and security services to monitor communication “traffic”, which is who calls, texts, emails who, when and where but not what is said.

Similarly they will be able to see which websites someone visits, when and from where but not the content of those visits.

However, if the data sets alarm bells ringing, officials can request a ministerial warrant to intercept exactly what is being sent, including the content.

The consultation is expected to include three options on how the “traffic” information is then stored: a “super database” held by the Government, a database held and run by a quango or private company at arms’ length, or an order to communication providers to store every detail in their own systems, which can then be accessed by the security services is necessary.

A memo written by sources close to the project and leaked last year revealed it was fraught with technical difficulties.

Ms Smith has already claimed local authorities will not have access to the data but the Tories have warned of the “exponential increase in the powers of the state”, while the Liberal Democrats have dubbed the plans “Orwellian” and deeply worrying.

Security services fear a failure to monitor all forms of communications effectively will hamper their ability to combat terrorists and serious criminals. Sir Stephen Lander, chairman of the Serious Organised Crime Agency, said: “Any significant reduction in the capability of law enforcement agencies to acquire and exploit intercept intelligence and evidential communications data would lead to more unsolved murders, more firearms on our streets, more successful robberies, more unresolved kidnaps, more harm from the use of Class A drugs, more illegal immigration and more unsolved serious crime.”

Obama to release up to 2,000 photographs of prisoner abuse

President Barack Obama is to release up to 2,000 photographs of alleged abuse at American prisons in Iraq and Afghanistan in a move which will reignite the scandal surrounding Abu Ghraib prison in 2004.

Telegraph | Apr 24, 2009

By Toby Harnden in Washington

The decision to make public the images sought in a legal action by the American Civil Liberties Union comes amid a political firestorm over alleged torture of detainees under President George W. Bush.

Some of the photographs, which will be released before May 28, are said to show American service personnel humiliating prisoners, according to officials.

The images relate to more than 400 separate cases involving alleged prisoner abuse between 2001 and 2005.

Descriptions of some of the alleged abuse photographs include:

* A prisoner pushed up against a wall as military guards or interrogators appear to threaten to sexually assault him with a broomstick

* Female soldiers posing with hooded, shackled prisoners who were stripped naked

* Hooded prisoners on transport planes with Playboy magazines opened to pictures of nude women on their laps

The administration initially planned to release only the 21 photos sought by the ACLU, but General David Petraeus ordered that all 2,000 photographs be released to keep from “dragging this issue out forever”.

The Pentagon fears a backlash in the Middle East similar to the one provoked by pictures from Abu Ghraib prison, near Baghdad, in 2004 which became emblematic of American mistakes in Iraq.

Amrit Singh, an ACLU lawyer, said that “these photographs provide visual proof that prisoner abuse by US personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib”.

The Bush administration had resisted releasing the images to the public, contending that the disclosure would fuel anti-American feeling and violate US obligations towards prisoners under the Geneva Conventions. Several people have already been tried at courts martial for using guns to threaten detainees in cases connected to the photographs.

Mr Obama’s decision could undercut his struggle to persuade Congress not to institute a “truth commission” to investigate alleged prisoner abuse and force former Bush administration officials to testify and account for their actions and advice.

Momentum for a major public inquiry was dramatically increased when Mr Obama released four memos last week written by three officials from Mr Bush’s Justice Department.

Running to 126 pages, they contained the legal rationale for the CIA’s methods of extracting information from al-Qaeda suspects used between 2002 and 2005.

The methods, eventually prohibited by the Bush administration, included sleep deprivation for up to 11 days, forced nudity and stress positions as well as “waterboarding”, a form of simulated drowning in which “water is continuously applied from a height of 12 to 24 inches” for “20 to 40 seconds”.

In the memos, it was revealed that the waterboarding technique had been used 266 times on Khalid Sheikh Mohammed and Abu Zubaydah, two senior al-Qaeda prisoners.

Other possible disclosures as a result of the ACLU legal action include transcripts of prisoner interrogations, a secret CIA inspector general’s report and materials from a Justice Department investigation into detainee abuse.

The Obama administration, under fierce pressure from the Left and some congressional Democrats, faces a tough decision about whether to release the information in full, redact parts of it or continue the Bush administration’s court battle to keep it secret.

Mr Obama’s decision to release the four memos came after the most divisive argument yet in his young administration, which passes the landmark of 100 days next Wednesday.

He was opposed by Leon Panetta, his CIA chief, who argued for redactions of key passages, and John Brennan, a former senior CIA official who is now the top counter-terrorism adviser at the White House.

The most enthusiastic support for the release came from Eric Holder, Mr Obama’s attorney general and the man who will decide whether former Bush administration officials should face prosecution, and his legal counsel Gregory Craig.

Robert Gates, the Pentagon chief, and Admiral Dennis Blair, Director of National Intelligence, are said to have supported Mr Obama with some reservations. It subsequently emerged that Adml Blair had briefed his staff that some important information was extracted from prisoners during harsh interrogations.