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San José, Costa Rica, Thursday, Nov. 15, 2001, Vol. 1, No. 67

Top world stories:

Military frees captive aid workers

Bush sets up military terrorism tribunals

Legal expert weights rights, terrorism

Two presidents discuss arms cuts
SEE BELOW


Russian President Vladimir Putin and the U.S. President George Bush take a stroll through the White House. Later both men left for the Bush ranch in Texas.


 
Salvation Army takes another hit on finances
By the A.M. Costa Rica staff

The Salvation Army has been penalized for the alleged poor quality of its street children program, and has been docked 10 million colons, nearly $30,000.

Major John D. Mowers, divisional commandant of the religious group, said Wednesday he is exploring legal recourse against the government agency that assessed the surprise penalty and that he would seek an audience with and support from Costa  Rica’s president.

The short story is that the Salvation Army will not be able to reopen shelters for street children in December unless it gets private help. Mowers was waiting for back payments from the government agency, the Patronado Nacional de la Infancia. And the agency sent the money it owed, less the financial penalty.

"We've got enough to pay employees, but not enough to start anything," Mowers said. The shelters were closed in September.

The Salvation Army expected to get 26 million colons (about $77,000). Instead, it got 16 million (about $47,500), said Mower.

"We ought to be getting a medal, not criticism," said Mower, as he noted that the Salvation Army was able to keep the street children shelter program open for many months even though the Patronado was far behind on payments.

He agreed that the Salvation Army cut corners in its program simply to keep it open because money from the Patronado did not arrive.

The Patronado is involved in its own political problems, and the effectiveness of the government agency has become a presidential race issue.

Mower said that of the other social agencies that are owed money by the Patronado, the Salvation 

 

Army is the biggest creditor. Its lawyers are studying what it can do legally to force the Patronato to give a full reimbursement. However, Mowers did not think the legal route would result in a quick decision.

Mowers said a better approach by the Patronato would be to work with the Salvation Army to eliminate deficiencies, including making payments quicker.  Instead, he said, for example,  inspectors arrived at odd times to make head counts when children were elsewhere, such as in school.

Another shelter is possible soon if the Salvation Army were to receive the donated use of a large, sturdy warehouse, complete with showers and bathroom facilities. The organization has the beds and kitchen equipment ready to be put to use, said Mowers. Then a shelter could be opened even while the battle with the Patronado continues.

About 30 street children had to be placed elsewhere when the Salvation Army overnight facilities closed in September. 

Kitchen on wheels
needed a little help

The mobile kitchen needed a brake job. And try to find front calipers for a Chevy in Costa Rica.

That was the problem the Salvation Army faced, but the brake part has arrived, and the kitchen will be on the street soon feeding homeless children and others, said Major John D. Mowers, commandant.

Still, Mowers said simply feeding people does not address the root causes of their homeless situation. He said that any serious social program seeks to build a relationship with those they serve. And this cannot be done by a mobile kitchen, he said.

He said the Salvation Army shelter programs tried to convince street children to consider their possibilities for the future and tried to turn them to school and more normal lives.

Animal
Planet
visiting 
Drake Bay
Special to A.M. Costa Rica

The Animal Planet show "The Jeff Corwin Experience" is in Costa Rica, filming in various locations around the country for upcoming episodes of the popular show. 

The show will be filming with Fundacion Delfin de Costa Rica and Delfin Amor Eco Lodge Saturday in Drake Bay. 

"Jeff and his crew will be going on one of our dolphin and whale research tours." said Sierra Sequeira, president of the foundation and owner of the lodge.  "Orcas, humpbacks and groups of hundreds of dolphins have been seen in the past few days in Drake Bay, so we are hoping for a great day for the show."

Bush sets up military tribunals to deal with non-citizen terrorists
Special to A.M. Costa Rica

WASHINGTON — President George Bush signed a military order that sets up possibly secret military tribunals for suspected terrorists and subjects them to the death penalty with a two-thirds vote of those military officers present.

The action prompted an outcry from civil liberty organizations. The tribunals would only apply to non-U.S. citizens, but could apply to persons who have lived legally for a long time in the United States.

At the same time, the U.S. government has begun a sweep to locate and question some 5,000 persons, nearly all men of Middle Eastern background who are in the United States legally.

Bush said in signing the military order "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

Conviction in the military tribunals would be by a preponderance of evidence rather than the traditional standard of beyond a reasonable doubt. The military order, signed Tuesday, said that tribunal verdicts would not be subject to appeal in United States courts. The tribunals could be held in the United States or anywhere else.

Laura W. Murphy is director of the Washington national office of the American Civil Liberties Union. She called the military order unprecedented when Congress has not declared a war.

"We do not believe that the administration has shown that the constitutional jury trial system does not allow for the prosecution of those accused of terrorist activities," said Murphy. "Absent such a compelling justification, the President's decision is further evidence that the Administration is totally unwilling to abide by the checks and balances that are so central to our democracy."

She called on congress "to exercise its oversight powers before the Bill of Rights in America is distorted beyond recognition."

Ari Fleischer, presidential press secretary, told reporters in Texas that two leading congressmen already have praised the measure, and "the President is pleased with the reaction he has heard thus far. . . ." 

Although the Bush order specifically applies to members of the al Qaida terrorist network and anyone helping or supporting such persons, the order also applies to anyone "it is in the interest of the United States that such individual be subject to this order."

Aliens under U.S. law have a lesser status regarding civil rights, but once an alien is indicted for a crime he or she is subject to all the checks and balances of the U.S. judicial system. The Bush order would restrict these rights and allow the military to hear classified evidence in a way so it would not be disclosed to the public.

The ACLU also criticized the Justice Department plan to pick up and interview at least 5,000 foreigners — all men ages 18 to 33, from mostly Middle Eastern countries — who entered the United States on non-immigrant visas from January 1, 2000 to the present. 

The ACLU also said it has been troubled by reports that some people under investigation have been detained and impeded in their ability to contact lawyers and their families. On Oct. 29, a coalition of civil liberties, human rights and electronic privacy organizations joined in filing a Freedom of Information Act request for information about the individuals arrested or detained since Sept. 11.

To date, the FBI has denied the groups’ request, while requests to the Justice Department and the Immigration and Naturalization Services have so far gone unanswered. An appeal to the FBI denial was filed Friday. This  is required before going to court.

U.S. never has abandoned its Bill of Rights
By Peter Raven-Hansen
Special to A.M. Costa Rica

The history of lawless police states leaves little doubt how one would respond to a terrorist attack. The government would declare a national emergency to invoke new "emergency" powers and measures. Already secretly tracking many citizens, the police would expand surveillance in a search for the attackers. 

They would quickly arrest suspects, potential witnesses, and maybe dissidents and critics as well. The arrested would be held in isolation and possibly abused to make them talk. Finally, the authorities would first secretly decide who is guilty (or who should be called guilty) and afterwards announce that judgment in show trials, followed by execution or long terms of imprisonment. 

A lawless response would be swift and seemingly efficient because it could be decided personally by one or a few men whose orders are "law" to their underlings.

The United States has responded to terrorist attacks with the same tools of criminal justice: surveillance, arrest, detention, and trial. But in a state ruled by law rather than personal fiat, these tools are not crafted by President Bush and his counselors. They were instead authorized by pre-existing laws in the U.S. Constitution, legislation enacted by Congress, and executive regulations. 

Furthermore, with few exceptions, the only U.S. "emergency powers" are ones given the President by laws which Congress has previously passed, not ones he gives himself because he thinks it necessary. And if the tools provided by law prove to be too slow and cumbersome to meet the terrorist threat, they must be changed by a public legislative process, not by presidential order.

SURVEILLANCE

The U.S. Constitution protects the people from "unreasonable searches and seizures." To be reasonable, a search — whether conducted physically in the home or electronically by wiretap or other communications intercept — must ordinarily be pre-approved by an independent judge on evidence showing that there is probable cause to believe that evidence of a crime will be found. 

Evidence obtained in violation of these standards can be thrown out of court. But the U.S. Supreme Court has recognized that collecting security intelligence is different from collecting evidence of a crime, partly because it is needed to prevent spying or terrorism and not just to solve completed crimes. Congress has therefore enacted a law permitting independent judges to authorize surveillance for the purpose of collecting foreign intelligence on a lesser showing of probable cause. 

The government need only show that there is probable cause to believe that the target of the surveillance is a foreign agent or international terrorist.

Such foreign intelligence surveillance was already being conducted before the Sept. 11 attacks on the United States, and, indeed, had produced crucial evidence against the terrorists who were ultimately tried for the 1998 bombings of the U.S. embassies in Tanzania and Kenya. 

But the law before Sept. 11 also restricted some surveillance. U.S. newspapers report, for example, that before Sept. 11 the government was unable to make the showing required to obtain surveillance of one of the men now suspected of participating in the Sept. 11 attacks. In addition, the pre-Sept. 11 foreign surveillance law was technologically obsolete in some respects. It was intended to apply chiefly to traditional telephone wiretaps and was not well suited to e-mail and other means of communications developed since the law was enacted.

The Bush Administration therefore sought changes in the law from Congress after the Sept. 11 attack. Because the U.S. lawmaking process is public, so was the ensuing debate in Congress and in the U.S. media.

 Defenders of privacy resisted many of the changes sought by the administration, and proponents of greater security promoted them. In the end, some compromises were made in a new law expanding security surveillance. Yet the new law still falls short of the unrestricted surveillance, which we would expect in a police state. 

An independent judge must still approve security surveillance, it must still be directed at foreign agents or international terrorists, with special protections for U.S. citizens in many cases, and it is still not open-ended.

ARREST AND DETENTION

In the first seven weeks of its investigation of the Sept. 11 attacks, the Federal Bureau of Investigation detained over 1,100 persons. But the U.S. Constitution protects a person from unreasonable "seizure" — arrest and detention — as well as from unreasonable search. 

There is no law, which allows general "preventative detention" — detaining a person indefinitely in order to prevent him from committing a crime in the future — except for enemy aliens in war. The police may stop someone for questioning only on reasonable suspicion that he has been or is involved in criminal activity and may detain him only temporarily before charging him with a crime.

The arrest of most of the 1,100 met this standard, but not because they were reasonably suspected of being involved in the Sept. 11 attack. Instead, they were arrested on suspicion of committing what the U.S. attorney general called "spitting on the sidewalk:" minor crimes like traffic violations, using false identities, or credit card fraud. 

Detention without bail for persons suspected of such minor crimes is unusual; often even conviction for such crimes carries no jail sentence. Consequently, the "spitting-on-the-sidewalk" detentions have been the subject of growing debate in the media, and defenders of civil liberties have insisted that the government is really embarked on an unprecedented and legally controversial policy of preventative detention to meet the threat of terrorism.

Another 200 detainees are aliens who are reasonably suspected of violating their immigration status in the United States, by, for example, overstaying their student visas. Before Sept. 11, however, persons suspected of minor "overstays" were hardly ever detained for more than a short 
 

 

An analysis of the law

period while they awaited immigration proceedings. The continued detention of such aliens in the Sept. 11 investigation has also been criticized as preventative detention.

Nevertheless, there is an essential difference between the wholesale and unrestricted round-up of suspects and dissidents which we would expect in a lawless police state and the Sept. 11 detentions. It is that the U.S. government has been obliged publicly to justify its arrests by law, even if its justifications have been criticized. 

In addition, the detainees have rights under U.S. law while they are detained. A detainee has the right to call a lawyer, and if the detainee is charged with a crime, he has a right to have a lawyer appointed for him at government expense. The Department of Justice has asserted that each detainee has been informed of this right, although questions remain about how easy it has been for detainees to exercise the right. Detainees also have a right to be protected from physical abuse during their detention. No one has yet credibly complained that this right has been violated.

Under the rule of law, it is usually preferable to change law when it no longer meets perceived social needs than to bend it, let alone break it. In fact, the attorney general did ask Congress for new authority to detain a person indefinitely if he had reason to believe that the person was a terrorist or was likely to commit a terrorist act. 

Despite the terrorist emergency, Congress rejected that request, doubting that such an expansion of detention authority was necessary or constitutional. Instead, it has given him new but limited authority to detain aliens for short periods before starting immigration proceedings against them.

TRIAL

The U.S. Constitution guarantees a bundle of important rights to a person charged with a crime. First, and perhaps most important, he has the right to a speedy and public trial. He has the right to confront the witnesses and see the evidence against him. He has a right to a lawyer at the government's expense. He has the right to ask for a jury of impartial ordinary citizens to decide whether the evidence shows his guilt "beyond a reasonable doubt." And he has the right to see any evidence, which the government has found which might show his innocence.

These rights were afforded the terrorists who were tried in U.S. courts for the 1993 World Trade Center bombing, the 1995 Oklahoma City bombing, and the 1998 embassy bombings. In the latter case, for example, lawyers for defendants — indicted along with Osama bin Laden as members of the al-Qaida network — succeeded during a five-month trial in having some criminal charges dismissed, some surveillance declared unlawful, and some evidence against them thrown out of court. Nevertheless, after hearing 205 witnesses, the jury found beyond a reasonable doubt that defendants were guilty of bombing the U.S. embassies.

Despite the government's unbroken record of success in terrorist prosecutions, however, they have not been problem-free. A major drawback in trying terrorists is that some of the evidence against them (or which they are entitled to see) may have been obtained from secret intelligence sources and methods. 

Disclosure of the evidence may jeopardize such sources and methods. In one terrorism prosecution, for example, the government had to disclose evidence, which had been obtained by an electronic intercept of a communication by the al Qaida network. Within a short time after the disclosure, the network stopped using that channel of communication and the intelligence source was lost.

The obvious solution to this risk — keeping the evidence secret from the terrorist defendant and his lawyers — is prohibited by U.S. law. In non-criminal immigration proceedings to remove suspected terrorist aliens from the United States, however, the government has tried to use secret evidence when it was necessary to protect intelligence sources and methods. 

This use of secret evidence, however, may also be unlawful. At least three lower courts have rejected immigration decisions in such cases on the ground that using secret evidence violates the right of aliens to the due process of law guaranteed by the Constitution. But these decisions did not dictate whether the government is permitted to use secret evidence in other parts of the country, and the Supreme Court — which could decide this question for the entire nation — has not yet done so.

Consequently, before Sept. 11, some members of Congress proposed a law which would have prohibited the immigration authorities from using secret evidence. After Sept. 11, the support for such a law has, at least temporarily, evaporated. Courts must therefore continue to decide case by case whether secret evidence can be used in immigration proceedings until the Supreme Court or Congress settles the question.

CONCLUSION

Bringing terrorists to justice under the rule of law is a slow, cumbersome, inefficient business. It may even be an unsuccessful business, if essential evidence is excluded because it was obtained by unlawful surveillance, if the government decides that it cannot risk disclosure of intelligence sources and methods, or if the proof does not show guilt beyond a reasonable doubt (even though it shows that it is more probable than not that the defendant is guilty). But as the Supreme Court once said in deciding to free a terrorist who had been unlawfully tried during the Civil War:

"The power of punishment is alone [available] through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter . . . how much . . . crimes may have shocked the . . . country, or endangered its safety. By the protection of law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people."

In its quest for protection from terrorists, the United States will never give up the protection of law.

(The author is the Glen Earl Weston Research Professor of Law at the George Washington University Law School.)

Military action releases eight aid workers in Afghanistan
By the A.M. Costa Rica wire services

Eight Western aid workers held by the Taliban are now free.

President Bush told reporters at his ranch in Texas that a rescue operation involving U.S. forces and non-governmental groups inside Afghanistan led to the workers being set free late Wednesday. The president says the International Red Cross had a role in the rescue.

Details of the operation remain unclear, though the Pentagon says U.S. military helicopters picked up the workers from a field near the city of Ghazni and airlifted them to Pakistan. The Pentagon says all the workers appear to be in good condition.

The aid workers, two Americans, two Australians, and four Germans, were arrested in August by the Taliban on charges of preaching Christianity and 

could have faced the death penalty. Taliban authorities put them on trial in Kabul but never handed down a sentence.

U.S. Vice President Dick Cheney said Wednesday that the Taliban is in flight all over Afghanistan. Cheney says the military defeat of the Taliban in Afghanistan is a good start to what he says will be the long-term fight against terrorism.

His comments in Washington were mirrored by British Prime Minister Tony Blair in London. Blair told the British parliament the Taliban is in "total collapse."

Blair said that while pockets of resistance may continue, support for the Taliban inside Afghanistan is evaporating. He said he would not rule out an eventual offensive front-line role for British soldiers in Afghanistan. 

Two presidents still discuss arms cuts involving nuclear weapons
By A.M. Costa Rica wire services

CRAWFORD, Texas — Russian President Vladimir Putin is visiting President Bush's ranch here — a visit combining traditional Texas hospitality with serious talks on arms cuts and economics.

The two presidents will venture away from the ranch briefly later today to visit a local school and answer questions from students.

White House spokesman Ari Fleischer says the main goal of the Texas visit is for Bush and Putin to continue forging a strong personal relationship. The spokesman says no one should expect any dramatic announcements to emerge from the ranch, where 

the presidents will continue talks on arms cuts that began Tuesday in Washington. 

On Tuesday, President Bush announced plans for deep cuts in the U.S. arsenal of long-range nuclear warheads. Putin said Russia would match the U.S. cuts. 

During a speech at Rice University in Houston, Texas, Wednesday, Putin said Russia is discussing different ways his country can assist NATO to prevent terrorism. On the issue of Afghanistan, Putin said the war is achieving its objectives. He said Russia does not want the Taliban included in the new Afghan government.


 
Fasting for Ramadan
starts Friday for Muslims

Saturday will be the first day of fasting for Muslims in Costa Rica and elsewhere. That is the start of the ninth month of the Muslim calendar and the time when God is believed to have sent the faith’s holy book, the Quran, to earth.

During Ramadan, as the month is called, faithful Muslims fast during the day and reflect on the religious side of their life. Muslims also go to the mosque and couple the fastings with prayers. 

When Ramadan ends, beginning with the first day of the next month, Shawwal, Muslims enjoy the feast of fast breaking, a three-day period of family gatherings and the exchange of gifts.

The 27th day of the month is the most holy because it is on this day that Muslims believe God delivered the Quran to Muhammad.

More information is available at http://www.holidays.net/ramadan/story.htm
 

Judges in Sinaloa
placed under protection

By the A.M. Costa Rica wire services

Federal judges in Mexico's western Sinaloa state are under the protection of special state government agents following the slaying of two judges. On Sunday, gunmen killed Jesus Alberto Ayala and Benito Andrade Ibarra as well as Andrade's wife, Maria Carmen. 

Following the slayings, the president of the Mexican Supreme Court asked for police protection for all judges and federal magistrates in Sinaloa, where drug-related violence is common. 

Police have not determined who is responsible for the killings, but the Mexican media reports speculate that the Tijuana drug cartel known as the Arellano-Felix organization is linked to the deaths. 

Both judges were part of a panel that rejected an appeal by Benjamin Arellano-Felix, whom U.S. officials have described as the lead figure in the powerful and violent drug cartel. He is currently in a Mexican federal prison. His brother, Ramon Eduardo Arellano-Felix, is one of the United States' 10 most wanted fugitives. He is also being sought in Mexico for narcotics trafficking and murder. 

 U.S. and Mexican officials say the cartel is the most violent and ruthless of Mexico's drug smuggling gangs. 
 

Court orders retrial
for Colombian general

By the A.M. Costa Rica wire services

Colombia's highest court has ordered a civilian retrial for an army general convicted by the military in connection with a 1997 massacre. 

Last February, a military court sentenced Gen. Jaime Uscategui to 40 months in prison on charges of dereliction of duty. Authorities say he failed to stop right-wing paramilitary attacks that led to 30 deaths in the village of Mapiripan. 

Colombia's Constitutional Court Wednesday rejected the military conviction that human rights groups had denounced as too lenient. The high court says civilian tribunals should hear cases involving serious human rights abuses. 

Uscategui vows to prove his innocence in a civilian court. The general also said he does not want the events in Mapiripan to not go unpunished. 

The right-wing paramilitary organization known as the United Self-Defense Forces of Colombia or AUC, has been responsible for many of the crimes committed in Colombia's 37-year civil war.  The AUC often targets suspected sympathizers of leftist rebels who have been at war with the paramilitaries and Colombian government. The conflict has left at least 40 thousand people dead over the past decade. 

Breakthrough hailed
in world trade talks

Special to A.M. Costa Rica

Members of the World Trade Organization, meeting in Doha, Qatar, decided Wednesday to launch a new round of global trade negotiations.

"This agreement has the potential to expand prosperity throughout the world and to strengthen the global economy," White House Press Secretary Ari Fleischer told reporters in Crawford, Texas, near the ranch of President Bush. "The president believes that open trade benefits America's farmers, workers and families; creates high-paying jobs for Americans."

The White House spokesman said "these negotiations will give developing countries greater access to world markets and improved living standards."

"If you remember, this is something that had been tried in Seattle and, of course, was unsuccessful," Fleischer told the reporters. "This is a breakthrough. 


 
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