FactCheck.org http://www.factcheck.org A Project of the Annenberg Public Policy Center Fri, 19 Dec 2014 21:15:29 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.1 Is Cuba a ‘Leading’ Sponsor of Terrorism? http://www.factcheck.org/2014/12/is-cuba-a-leading-sponsor-of-terrorism/ Thu, 18 Dec 2014 21:56:57 +0000 http://www.factcheck.org/?p=91573 Sen. Ted Cruz condemned President Obama’s announcement that he would normalize relations with Cuba, calling the communist country “a leading state sponsor of terrorism.” That’s a stretch, to say the least.

It’s true that Cuba – along with Iran, Syria and Sudan — is listed by the State Department as one of four “State Sponsors of Terrorism.” But the department’s annual Country Report on Terrorism, published in April, provided little evidence of Cuba sponsoring terrorism, especially compared with the extensive portfolio of the others on that list.

In fact, the State Department report said: “There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.” It did note that Cuba has historic “ties” to two regional terrorist groups: Basque Fatherland and Liberty (ETA) in Spain and the Revolutionary Armed Forces of Colombia (FARC). But Cuba’s ties with the ETA “have become more distant,” and it has supported and hosted peace talks between FARC and the government of Colombia, the report said.

Cuba’s Terrorist Ties

Cruz made his remarks in an interview with Neil Cavuto on Fox News hours after the president announced the U.S. policy changes on Cuba.

Cruz, Dec. 17: Look, the Castros are the ones who have decided to be brutal, repressive dictators. And we should not be taking blame for the fact that we responded to their active acts of war and hostility. They are a leading state sponsor of terrorism and just like President Obama did with Russia, just like President Obama did with Iran, he does not understand the difference between our friends and our enemies.

Others who were critical of the president’s decision, including Republican Sen. Marco Rubio of Florida, also pointed to Cuba’s designation as a “state sponsor of terrorism.”

Rubio, Dec. 17: Cuba, like Syria, Iran, and Sudan, remains a state sponsor of terrorism. It continues to actively work with regimes like North Korea to illegally traffic weapons in our hemisphere in violation of several United Nations Security Council Resolutions.

We’ll get to Rubio’s point — which is correct — about Cuba and North Korea later. But we will start by reviewing Cuba’s designation as a state sponsor of terrorism relative to others on that list.

The State Department labeled Cuba a state sponsor of terrorism in 1982, “citing Fidel Castro’s training and arming of communist rebels in Africa and Latin America,” as explained in a 2010 report by the independent Council on Foreign Relations. But, as the report also says, “intelligence experts have been hard pressed to find evidence that Cuba currently provides weapons or military training to terrorist groups” and “many experts are skeptical” that Cuba still belongs on the list. An Aug. 15 report by the nonpartisan Congressional Research Service also said: ”Cuba’s retention on the terrorism list has been questioned by some observers.”

The list is not reviewed annually, so Cuba cannot be removed until either the president or Congress takes action. The president, who can remove Cuba from the list without congressional approval, has said his administration will review that designation in light of his decision to normalize relations with Cuba.

Why is Cuba on the list, and what ties does it still have to terrorists? Chapter 3 of the State Department’s 2013 Country Report on Terrorism lists just two reasons for the designation: Cuba has “long provided safe haven to members of Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC),” and it has “continued to harbor fugitives wanted in the United States.”

But the State Department report and the CRS report provide evidence of a softening of Cuba’s policies regarding U.S. fugitives and regional terrorist groups.

Let’s look first at the terrorist groups mentioned in the State Department report.

Basque Fatherland and Liberty — or Euzkadi Ta Askatasuna — was designated a foreign terrorist organization by the State Department in 1997 and operates in northern Spain and southwestern France, as explained in Chapter 6 of the State Department’s 2013 Country Report on Terrorism. It has been primarily involved in the bombings of Spanish government buildings and assassinations of Spanish officials, and has killed more than 800 people since 1968, the State report said.

But ETA is a shell of its former self, and Cuba has distanced itself from the group. The State report said ETA’s membership has shrunk to “fewer than 100″ members, with about 750 members imprisoned in Spain and France, and it is “probably experiencing financial shortages” since it stopped collecting “revolutionary taxes” from businesses in 2011. The State Department said the “taxes,” which it described as an “extortion program,” were the group’s primary source of funding.

And although the State Department report says Cuba has “long provided safe haven” to ETA members, it also says the numbers are small and dwindling as Cuba works with the Spanish government to return ETA members. “Reports continued to indicate that Cuba’s ties to ETA have become more distant, and that about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government,” the report said.

Cuba also has harbored members of the Revolutionary Armed Forces of Colombia, which also has been on the U.S. Foreign Terrorist Organization list since 1997. The State Department describes FARC as “Latin America’s oldest, largest, most violent, and best-equipped terrorist organization,” saying it “has been responsible for large numbers of kidnappings for ransom in Colombia, and in past years has allegedly held as many as 700 hostages,” including U.S. citizens.

FARC has been weakened by a Colombian military offensive in recent years, but is still active. “The FARC and the Colombian government began peace talks in 2012, but fighting continued throughout 2013,” the report said. Cuba, however, has been involved in helping to broker the peace talks.

State Department, April 2014: Throughout 2013, the Government of Cuba supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two. The Government of Cuba has facilitated the travel of FARC representatives to Cuba to participate in these negotiations, in coordination with representatives of the Governments of Colombia, Venezuela, and Norway, as well as the Red Cross.

The State Department report on Cuba was brief — just three paragraphs, and concluded by saying there’s no evidence that Cuba has provided training or weapons to terrorist groups.

The language in the latest report isn’t much different from the 2008 report, in which the State Department wrote that Cuba “no longer actively supports armed struggle in Latin America and other parts of the world.” That report also said the U.S. “has no evidence of terrorist-related money laundering or terrorist financing activities in Cuba.”

Compare the 2013 report on Cuba with these excerpts from the lengthy reports on Iran and Syria:

  • Iran: Iran continued its terrorist-related activity, including support for Palestinian terrorist groups in Gaza, and for Hizballah. It has also increased its presence in Africa and attempted to smuggle arms to Houthi separatists in Yemen and Shia oppositionists in Bahrain. Iran used the Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF) and its regional proxy groups to implement foreign policy goals, provide cover for intelligence operations, and create instability in the Middle East.
  • Syria: [T]he Asad regime continued its political support to a variety of terrorist groups affecting the stability of the region and beyond, even amid significant internal unrest. The regime continued to provide political and weapons support to Hizballah and continued to allow Iran to rearm the terrorist organization. The Asad regime’s relationship with Hizballah and Iran continued to grow stronger in 2013 as the conflict in Syria continued. … Statements supporting terrorist groups, particularly Hizballah, were often in Syrian government speeches and press statements.

Sudan was described in the State Department report as a “generally cooperative counterterrorism partner.” But the report goes on to say that in 2013 al Qaeda “inspired” terrorist groups remained in Sudan and the country “continued to allow members of Hamas to travel, fund raise, and live in Sudan.” It also said the “Lord’s Resistance Army (LRA) is likely operating” in Sudan. And, as the New York Times noted in a Dec. 17 article, Sudan President Omar Hassan al-Bashir “has been indicted on a charge of genocide and other crimes at the International Criminal Court because of mass killings and atrocities in the Darfur region.”

As for Cuba harboring fugitives wanted in the U.S., the Congressional Research Service report notes that Cuba in recent years has returned some fugitives on a “case by case basis.” CRS provided three examples from 2011 and 2013.

“For example, in 2011, U.S. Marshals picked up a husband and wife in Cuba who were wanted for a 2010 murder in New Jersey, while in April 2013, Cuba returned a Florida couple who had allegedly kidnapped their own children (who had been in the custody of the mother’s parents) and fled to Havana. In November 2013, William Potts, an American citizen who had hijacked an airplane from New Jersey to Havana in 1984, returned to the United States to face air-piracy charges,” the CRS report said.

Cuba, however, has refused to return fugitives that it deems “political prisoners,” such as Joanne Chesimard, a Black Liberation Army member who is wanted for killing a New Jersey State Trooper in 1973, according to the CRS report. Chesimard became the first female added to the FBI’s Most Wanted Terrorist list in 2013.

The CRS report also noted that Cuba is a regional member of the Financial Action Task Force, an international group that was formed to combat the financing of terrorism. In 2012, Cuba joined the Financial Action Task Force of South America, now known as the Financial Action Task Force of Latin America. The U.S. is a member of the FATF.

Cuba’s North Korea Connection

The State Department report on Cuba’s terrorist activities in 2013 does not mention Cuba’s ties to North Korea — even though, as Rubio correctly mentioned, Cuba sought to provide arms to North Korea in violation of a United Nations’ weapons ban.

Rubio was referring to an incident in the Panama Canal in July 2013, when a North Korean ship carrying undeclared Cuban weapons was seized by the Panama Canal Authority. In February, North Korea paid a fine of nearly $700,000, and the ship was allowed to return to Cuba.

On March 6, the United Nations released a report that provided details on the arms shipment. The report said the ship was transporting 25 containers of Cuban military equipment, mostly originating from the former Soviet Union. The containers included two Soviet-era MiG-21 aircraft, command vehicles, and components for defense systems and surface-to-air missile systems, including rocket launchers and missile components. The U.N. panel of experts that prepared the report said the arms shipment violated a U.N. resolution “prohibiting the direct or indirect supply, sale or transfer to the Democratic People’s Republic of Korea of all arms and related materiel.”

Cuba insisted that it sought to have the military equipment repaired by North Korea and was not trying to sell or transfer the arms. The panel said it was “unconvinced by Cuba’s rationale” in part because the weapons were undeclared and hidden under bags of sugar.

Footnote: The Bush administration removed North Korea from the state sponsors of terrorism list in 2008 at a time when the U.S. was seeking to negotiate a deal with North Korea to halt the country’s nuclear weapons program. The deal fell through, and North Korea continues work on its nuclear weapons program.

We take no position on Obama’s decision to normalize relations with Cuba or even on whether the communist country should remain on the state sponsors of terrorism list. After all, Cuba harbors U.S. fugitives and tried to supply North Korea with military equipment. But “a leading state sponsor of terrorism”? Cruz went too far in that description.

– Eugene Kiely

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FlackCheck.org Video: Immigration Claims http://www.factcheck.org/2014/12/flackcheck-org-video-immigration-claims/ Thu, 18 Dec 2014 15:46:34 +0000 http://www.factcheck.org/?p=91444 This FlackCheck.org video highlights misleading claims about immigration that were made after President Obama announced his executive actions in late November. The video includes fact-checked statements from Obama, Sen. Ted Cruz, Reps. Tom Cotton and Michele Bachmann, and Rick Santorum, who plans to run for president in 2016.

 

 

 

 

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Cheney’s Tortured Facts http://www.factcheck.org/2014/12/cheneys-tortured-facts/ Tue, 16 Dec 2014 23:39:57 +0000 http://www.factcheck.org/?p=91472 Summary

Former Vice President Dick Cheney offered a spirited defense of CIA interrogation tactics used in the wake of the Sept. 11 attacks and denounced a recent Senate report, which criticized those techniques, as a “crock.” But in presenting his case, Cheney often gave a one-sided and misleading account of the facts.

  • Cheney claimed the CIA’s “enhanced interrogation techniques” used on captured members of al Qaeda and the Taliban did not violate international agreements, citing opinions from the Justice Department. But the Supreme Court later ruled that detainees were entitled to minimum protections under the Geneva Conventions.
  • Cheney said he “believed” that rectal rehydration or feeding of some detainees was done “for medical reasons.” But the Senate report concluded otherwise, citing CIA officials who said the practice discouraged hunger strikes and resulted in “total control over the detainee.” Several physicians also have rejected the medical necessity of the practice.
  • Cheney wrongly claimed that the U.S. prosecuted Japanese soldiers “for a lot of stuff” but “not for waterboarding.” While they weren’t solely prosecuted for waterboarding, Japanese soldiers were prosecuted for torturing American prisoners, including the use of “water torture.”
  • Cheney repeated an old, exaggerated claim that Saddam Hussein “had a 10-year relationship with al Qaeda.” While there were sporadic contacts between Iraq and al Qaeda in the 1990s, the CIA and independent government reports concluded there was no evidence of a working relationship between the two regimes.
  • Cheney overstated the number of former Guantanamo detainees who had returned to terrorists activities. Cheney put the figure at 30 percent, but the confirmed number is closer to 17 percent.
  • Cheney said the Senate Intelligence Committee investigators failed to interview key CIA officials. That’s true, but committee investigators were deferring to Justice Department investigators who were pursuing possible criminal charges. And Senate staff did have access to transcripts of dozens of interviews with CIA officials.

Analysis

In interviews with Chuck Todd on NBC’s “Meet the Press” on Dec. 14 and Jake Tapper on CNN on Dec. 12, Cheney blasted the Senate report, released in early December, as partisan and “flawed.” He defended the Bush administration’s backing of “enhanced interrogation techniques” and other CIA practices that Senate Intelligence Committee Chair Dianne Feinstein called torture “under any common meaning of the term.”

Violation of Geneva Conventions?

Cheney relies on since-discredited opinions from the White House’s Department of Justice legal team to contend the “enhanced interrogation techniques” used by the CIA on captured members of al Qaeda and the Taliban did not violate international agreements generally and the Geneva Conventions specifically. The Supreme Court has since ruled that the detainees were entitled to minimum protections provided under the Geneva Conventions, including prohibitions against torture and humiliation.

In recent interviews, Cheney has twice claimed the techniques used by the CIA did not run afoul of international agreements.

On “Meet the Press” on Dec. 14, Cheney denied that the CIA techniques could be defined as “torture” and said the administration “did not want to cross that line into where we were violating some international agreement that we’d signed up to.”

Cheney, Dec. 14: We were very careful to stop short of torture. The Senate has seen fit to label their report torture. But we worked hard to stay short of that definition.

Chuck Todd: Well, what is that definition?

Cheney: Definitions, and one that was provided by the Office of Legal Counsel, we went specifically to them because we did not want to cross that line into where we were violating some international agreement that we’d signed up to. They specifically authorized and okayed, for example, exactly what we did. All of the techniques that were authorized by the president were, in effect, blessed by the Justice Department opinion that we could go forward with those without, in fact, committing torture.

Two days earlier, on Fox News, Cheney made a similar comment in response to a question asked by Chief Political Anchor Bret Baier:

Baier, Dec. 12: Is there anything to the Geneva Convention, to the world rule of law on this?

Cheney: Sure there is. But remember, the terrorists were not covered by the Geneva Convention. They were unlawful combatants. And under those circumstances, they were not entitled to the normal kinds of courtesies and treatment you would accord to those.

Cheney is correct that the Justice Department’s Office of Legal Counsel issued memos in 2002 that provided legal arguments that support Cheney’s position that the Geneva Conventions did not apply to detainees captured in the war in Afghanistan. For example, in a Jan. 9, 2002, memo, John Yoo, deputy assistant attorney general, concluded that international treaties did not protect members of al Qaeda or the Taliban militia. White House Counsel Alberto Gonzales also issued a memo about two weeks later to President George W. Bush backing up the Justice Department’s opinion, and recommending Bush declare captured members of al Qaeda and the Taliban outside Geneva Convention protections.

But those opinions did not go unchallenged, either inside or outside the administration.

Secretary of State Colin Powell, for example, wrote a memo to the White House on Jan. 26, 2002, arguing that such a posture would “reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” He also warned it would spark a “negative international reaction” and “undermine public support among critical allies.”

Geoffrey Corn, a professor at South Texas College of Law and an expert in military law, told us via email that Cheney’s comments “oversimplified one of the most complex legal issues that arose out of our military response to 9/11.”

Corn says Cheney’s argument that detainees were not entitled to protections under the Geneva Conventions rests on a Department of Justice interpretation that was “considered highly dubious by many government experts, including military legal experts who had devoted years to the study of this law,” and “opened up abusive treatment options that were fundamentally inconsistent with longstanding Department of Defense and national policy.” And ultimately, he said, it is an interpretation that was “repudiated by the Supreme Court in the 2006 decision in Hamdan v. Rumsfeld.”

In Hamdan v. Rumsfeld, the Supreme Court concluded that the Geneva Conventions’ Common Article 3 — which requires humane treatment of all captive combatants — applied to the detainees at Guantanamo.

As our fact-checking colleagues at PolitiFact noted, while it is accurate that the detainees may not have been entitled to the full measure of protection afforded under the Geneva Conventions to combatants in traditional international conflicts, that doesn’t mean they weren’t protected by minimal levels of protections afforded to everyone.

As the International Committee of the Red Cross puts it, Common Article 3 “requires humane treatment for all persons in enemy hands, without any adverse distinction.” Among those minimal protections are prohibitions against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

Mary Ellen O’Connell, a professor at Notre Dame Law School who has written extensively on international law and the use of force, told us in an email that Cheney is “quite wrong in saying the U.S. violated no law in employing coercive measures of interrogation.”

“The Geneva Conventions absolutely forbids coercive measures in interrogation,” said O’Connell. “A number of human rights treaties forbid torture and cruel, inhumane and degrading treatment. The self-serving memos produced by the Justice Department’s Office of Legal Counsel were simply wrong — which had to be obvious to anyone reading them.”

In an opinion piece she wrote for the American Society of International Law, of which she is a member, O’Connell listed the various international treaties that forbid torture and humiliation of prisoners or detainees (see point 3).

“In non-international armed conflict, common Article 3 to the four Geneva Conventions also prohibits torture as well as other violence to life and person, including cruel treatment and outrages upon personal dignity,” O’Connell wrote. “These are absolute prohibitions; there are no exceptions.”

Cheney accurately describes a position that was based on legal opinions provided by Justice’s Office of Legal Counsel at that time. But legal experts say that opinion was dubious then, and has since been repudiated by the Supreme Court.

Rectal Rehydration/Feeding for ‘Medical Reasons’?

One of the most unnerving findings in the Senate report was that “[a]t least five CIA detainees were subjected to ‘rectal rehydration’ or rectal feeding without documented medical necessity” (page 4).

When he was asked about those specific practices on “Meet the Press,” Cheney challenged the findings of the report, stating, “I believe it was for medical reasons.”

Here’s the full exchange with “Meet the Press” host Chuck Todd:

Todd, Dec. 14: Let me go through some of those techniques that were used, Majid Khan, was subjected to involuntary rectal feeding and rectal hydration. It included two bottles of Ensure, later in the same day Majid Khan’s lunch tray consisting of hummus, pasta, sauce, nuts and raisins was pureed and rectally infused. … Does that meet the definition of torture?

Cheney: That does not meet the definition of what was used in the program …

Todd: I understand. But does that meet the definition of torture in your mind?

Cheney: In my mind, I’ve told you what meets the definition of torture. It’s what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11. What was done here apparently certainly was not one of the techniques that was approved. I believe it was done for medical reasons.

In an interview on CNN on Dec. 11, former CIA Director Michael Hayden was even more explicit in saying the procedures were medically motivated.

“That was a medical procedure,” Hayden said when asked by host Jake Tapper about rectal rehydration/feeding. “That was done because of detainee health — that the people responsible there for the health of these detainees saw that they were becoming dehydrated. They had limited options in which to go do this. It was intravenous with needles, which would be dangerous with a non-cooperative detainee; it was through the nasal passages.”

He went on to say that it was “not part of the interrogation program, not designed to soften him up for any questioning.” Hayden claimed the Senate report’s conclusion was based on “one email with one very bad-taste comment.”

But there’s more. Let’s review the half-dozen references to this activity in the Senate report, outlined for us by Feinstein’s office.

  • Page 73: “At one point, al-Nashiri [a detainee] launched a short lived hunger strike that resulted in the CIA force feeding him rectally.” (Source: CIA cable, May 23, 2004.)
  • Page 82: CIA’s chief of interrogations “ordered the rectal rehydration of KSM [detainee Khalid Shaykh Mohammed] without a determination of medical need, a procedure that the chief of interrogations would later characterize as illustrative of the interrogator’s ‘total control over the detainee.’ ” (Source: CIA cable, March 5, 2003; interview by the CIA inspector general, March 27, 2003.)
  • Page 83: In March 2003, Khalid Shaykh Mohammed was also subjected to additional rectal rehydration (Source: CIA cable, date redacted), which a CIA officer from the Office of Medical Services “described as helping to ‘clear a person’s head’ and effective in getting KSM to talk.” (Source: CIA email, March 6, 2003, names of sender and recipients redacted.)
  • Page 100, footnote 584: According to CIA records, listed in this footnote, the CIA rectally rehydrated and/or rectally fed al-Nashiri, Khalid Shaykh Mohammed, Majid Khan, Abu Zubaydah and Marwan al-Jabbur. Ramzi bin al-Shibh, Khallad bin Attash and Adnan al-Libi “were threatened with rectal rehydration … CIA medical officers discussed rectal rehydration as a means of behavior control. As one officer wrote, ‘[w]hile IV infusion is safe and effective, we were impressed with the ancillary effectiveness of rectal infusion on ending the water refusal in a similar case.’ ” (Source: multiple CIA cables, dates redacted; the last quote was from a CIA email, February 2004, names of sender and recipients redacted.)
  • Page 100, footnote 584: “The CIA’s June 2013 response to the study does not address the use of rectal feeding with CIA detainees, but defends the use of rectal rehydration as a ‘well acknowledged medical technique.’ CIA leadership, including General Counsel Scott Muller and DDO [Deputy Director for Operations] James Pavitt, was also alerted to allegations that rectal exams were conducted with ‘excessive force’ on two detainees at DETENTION SITE COBALT.” A CIA attorney “was asked to follow up, although CIA records do not indicate any resolution of the inquiry.” (Source: multiple CIA emails, dates and names of sender and recipients redacted.)
  • Pages 114-115: Beginning in March 2004, one of the detainees, Majid Khan, “engaged in a series of hunger strikes and attempts at self-mutilation that required significant attention from CIA detention site personnel. Medical personnel implemented various techniques to provide fluids and nutrients, including the use of a nasogastric tube and the provision of intravenous fluids. CIA records indicate that Majid Khan cooperated with the feedings and was permitted to infuse the fluids and nutrients himself. After approximately three weeks, the CIA developed a more aggressive treatment regimen ‘without unnecessary conversation.’ Majid Khan was then subjected to involuntary rectal feeding and rectal hydration, which included two bottles of Ensure. Later that same day, Majid Khan’s ‘lunch tray,’ consisting of hummus, pasta with sauce, nuts, and raisins, was ‘pureed’ and rectally infused. Additional sessions of rectal feeding and hydration followed.” (Source: two CIA cables on Sept. 23, 2004.)

Cheney and Hayden both pointed out that rectal rehydration/feeding was not part of the so-called enhanced interrogation techniques, such as waterboarding, that critics say amounted to torture. In at least three cases, the procedure was initiated in response to a hunger strike. And so the primary goal was not interrogation, but to keep the detainees alive.

However, the comments from CIA medical officers suggest the method used — rectal rehydration or feeding as opposed to intravenous feeding or hydration — was viewed as a way to discourage others from engaging in hunger strikes or dissuading those who were on a hunger strike from continuing it. It may not have been part of the prescribed interrogation program, but the comments highlighted in the report show the CIA’s chief of interrogations at least saw the side benefit of it exhibiting “total control over the detainee,” while a CIA officer from the Office of Medical Services noted that it helped to “clear a person’s head.”

Moreover, the question of whether it amounted to torture or abuse does not depend on it being part of the prescribed interrogation program, or even being used as an interrogation technique at all.

The New York-based Physicians for Human Rights, for example, has condemned the use of rectal rehydration/feeding described in the report as “sexual assault masquerading as medical treatment.”

“Contrary to the CIA’s assertions, there is no clinical indication to use rectal rehydration and feeding over oral or intravenous administration of fluids and nutrients,” Dr. Vincent Iacopino, PHR’s senior medical advisor, stated in a press release. “This is a form of sexual assault masquerading as medical treatment. In the absence of medical necessity, it is clear that the only purpose behind this humiliating and invasive procedure is to inflict physical and mental pain.”

In a Washington Post story, Thomas Burke, a Harvard Medical School professor and emergency physician at Massachusetts General Hospital, contested the argument that IV hydration or feeding would be, as Hayden put it, “dangerous with a non-cooperative detainee.” Every day in the United States, he told the Post, health workers encounter uncooperative, belligerent or mentally disturbed patients who need hydration or sustenance. “And [in] none of them do we put a tube in their bottom,” he said.

Dr. Steven Miles, a professor of medicine at the University of Minnesota Medical School and board member of the Center for Victims of Torture told the International Business Times that the procedure was “a variation on a medieval form of torture in which the intestines were swollen up with fluid in order to cause pain. You can’t feed somebody this way. And so, for the U.S. government to claim that this is some sort of feeding technique, that’s just totally bizarre. Because there is no physiological way for any nutrients to be absorbed in the colon, any medical participation in this rectal feeding procedure is medical participation in torture.”

Japanese Prosecutions for Waterboarding

Cheney also wrongly claimed that the U.S. did not prosecute Japanese soldiers for waterboarding, as Chuck Todd had said.

Todd: When you say waterboarding is not torture, then why did we prosecute Japanese soldiers in World War II for waterboarding?

Cheney: For a lot of stuff. Not for waterboarding. They did an awful lot of other stuff. To draw some kind of moral equivalent between waterboarding judged by our Justice Department not to be torture and what the Japanese did with the Bataan Death March and the slaughter of thousands of Americans, with the rape of Nanking and all of the other crimes they committed, that’s an outrage.

Perhaps not solely for waterboarding, but Japanese soldiers were prosecuted for torturing American prisoners, including committing acts akin to waterboarding.

In his 2007 essay “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts,” Circuit Judge Evan J. Wallach, writing for the Columbia Journal of Transnational Law, documented cases from 1947 in which Japanese defendants Yukio Asano, Seitara Hata and Takeo Kita were each charged by a U.S. Military Commission with violating the laws and customs of war for committing torture, including “water torture.”

“The so-called ‘water treatment’ was commonly applied” by the Japanese, according to an International Military Tribunal for the Far East report. “The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness.”

And such “water torture,” Wallach wrote, “loomed large in the evidence” presented in the cases against Asano, Hata and Kita.

Hata, a first lieutenant surgeon, was specifically accused of torturing Morris O. Killough, an American prisoner of war, by “beating and kicking him, by fastening him on a stretcher and pouring water up his nostrils.” He was also accused of beating three others as well as “forcing water into their mouths and noses, and by pressing lighted cigarettes against their bodies.”

Asano and Kita were also accused of forcing water into the mouths and noses of prisoners.

All three men were eventually convicted. Hata was sentenced to 25 years confinement at hard labor, and both Asano and Kita received 15-year sentences.

The late Sen. Ted Kennedy actually mentioned the case involving Asano during a speech on the Senate floor on Sept. 28, 2006. That was before Wallach’s essay was published in 2007.

Saddam Hussein’s ‘Relationship’ with al Qaeda

In stating the Bush administration’s case for going to war with Iraq, Secretary of State Colin Powell addressed the United Nations Security Council on Feb. 5, 2003, and warned of a “sinister nexus between Iraq and the Al Qaida terrorist network.” Powell specifically cited Abu Musab al-Zarqawi as the link between Iraq and al Qaeda, mentioning Zarqawi no fewer than 20 times in his speech. “Iraq today harbors a deadly terrorist network headed by Abu Musab al-Zarqawi,” Powell said.

History has proven Powell wrong. As we will explain shortly, there was no working relationship between Iraq and al Qaeda.

Nevertheless, Cheney said in his interview on “Meet the Press” that he did not regret attacking Iraq and repeated the claim that Hussein “had a 10-year relationship with al Qaeda.”

During the interview, Todd played a 1994 video clip of Cheney defending President George H.W. Bush’s decision not to remove Saddam Hussein from power during the Gulf War in 1991. In that clip, Cheney said the region is “very volatile” and an attack on Iraq’s central government would have been “a quagmire” for the U.S.

Todd then asked Cheney whether he regretted the decision to attack Iraq in 2003 under the second President Bush.

Cheney, Dec. 14: No, a lot has happened. A lot has happened between that time, 9/11, for example, happened. We got to the point where we were very concerned about the possible linkage between terrorists on the one hand and weapons of mass destruction on the other. Saddam Hussein had previously had twice nuclear programs going. He produced and used weapons of mass destruction. And he had a 10-year relationship with al Qaeda. All of things came into play.

However, the CIA, the inspector general of the CIA, the Senate Intelligence Committee (controlled at the time by Republicans) and the bipartisan 9/11 Commission all came to the conclusion that there was no evidence of a working relationship between Hussein and al Qaeda.

There were sporadic contacts between Iraq and al Qaeda in the late 1990s, as described in a 2004 report by the 9/11 Commission, which was chaired by Thomas H. Kean, a former Republican governor of New Jersey. But that report concluded that there was “no evidence that these or the earlier contacts ever developed into a collaborative operational relationship. Nor have we seen evidence indicating that Iraq cooperated with al Qaeda in developing or carrying out any attacks against the United States.”

Two reports issued by the Republican-controlled Senate Intelligence Committee came to the same conclusion.

A heavily redacted July 2004 committee report concluded (on page 346) that the CIA “reasonably assessed that there were likely several instances of contacts between Iraq and al-Qa’ida throughout the 1990s, but that these contacts did not add up to an established formal relationship.” The committee (on page 4) said its conclusions were based in part on a year-long review of 10 years of intelligence community assessments.

In its second report, which was released in September 2006, the Senate Intelligence Committee cited further evidence that there was no working relationship between the two regimes. In fact, the committee report described the two as wary rivals, citing a June 2002 CIA report titled “Iraq and al-Qa’ida: Interpreting a Murky Relationship” that said “the ties between Saddam and bin Laden appear much like those between rival intelligence services, with each trying to exploit the other for its own benefit” (page 64 of the committee report).

In a section titled “Iraqi Links to Al-Qa’ida,” the committee report cited these high-level sources to refute the Bush administration’s claim of a relationship between Iraq and al Qaeda:

  • An Oct. 25, 2005, CIA report titled “Abu Musab al-Zarqawi and the Former Iraqi Regime” contradicted Powell’s claim in his U.N. speech that al-Zarqawi was the link between Iraq and al Qaeda. The CIA report said prior to the war “the [Iraqi] regime did not have a relationship, harbor, or turn a blind eye toward Zarqawi and his associates” (page 92).
  • A Dec. 6, 2005, interview with the “lead” Defense Intelligence Agency analyst “who follows the issue of possible connections between the Iraqi government and al-Qa’ida.” The analyst was quoted as saying the DIA “continues to maintain that there was no partnership between the two organizations” (page 63).
  • A Dec. 21, 2005, report by the inspector general of the Central Intelligence Agency that said: “The data reveal few indications of an established relationship between al-Qa’ida and Saddam Hussein’s regime before Sept. 11, 2001″ (page 62).

Former Detainees ‘Back on the Battlefield’

The former vice president was also wrong when he discussed former Guantanamo detainees who have returned to terrorists activities.

Cheney, Dec. 14: Of the 600 and some people who were released out of Guantanamo, 30 percent roughly ended up back on the battlefield.

The number of former Guantanamo detainees confirmed to have re-engaged in terrorist or insurgent activities is actually 107, according to the most recent semi-annual report by the Director of National Intelligence. That’s 17.3 percent of the 620 detainees who have been released or transferred. The figure is current as of July 15.

Cheney arrives at his 30 percent rate by adding in 77 former detainees who are now “suspected” of re-engaging, even though those suspicions can be based on unverified reports, or reports from a single source.

Cheney has been doing this for years. We first noted his habit of ignoring the distinction between “confirmed” and “suspected” recidivists in May 2009.

He also failed to mention this important fact: Many of the 107 former detainees confirmed to have returned to terrorist activities are either dead or back in custody. The DNI report says 23 of them are dead and 25 are in custody.

Also worth noting is that nearly all those who Cheney says have “ended up back on the battlefield” were released during the Bush administration. Only six “confirmed” and one “suspected” recidivist were released from Guantanamo under President Obama.

CIA Interviews

Cheney also told only part of the story on “Meet the Press” when he said the Intelligence Committee’s investigators failed to interview key CIA officials, a point raised often by other critics of the report.

Cheney, Dec. 14: The report is seriously flawed. They didn’t talk to anybody who knew anything about the program. They didn’t talk to anybody within the program.

That’s true as far as it goes. What Cheney failed to mention, however, is that the committee investigators were deferring to Justice Department investigators who were pursuing possible criminal charges, and that the Senate staff had access to transcripts of dozens of interviews with CIA officials conducted by the agency’s own inspector general and others.

A Democratic member of the Intelligence Committee, Sen. Ron Wyden of Oregon, explained that in the same “Meet the Press” program just before Cheney’s appearance:

Wyden, Dec. 14: The report and the Justice Department inquiry went on at the same time. So we weren’t able to interview the C.I.A. … Suffice it to say, I’ll speak for myself and my colleagues, we would be happy to have talked to them.

Another member of the committee, Sen. Angus King of Maine, made the same point in a Dec. 9 interview on CNN:

King, Dec. 9: [T]he reason the interviews weren’t done was that the Justice Department was preparing whether or not to charge people in the CIA, and the committee was forbidden to conduct these interviews. They couldn’t do it. However, the committee did have access to 150 interviews done by the CIA’s inspector general, plus the transcripts of the many times that CIA officials came and testified before the committee. So there were, in effect, interviews. We just didn’t ask the question. But the interviews were there, plus 6 million pages of documents. And it’s chilling.

King is an independent, but sits with Democrats in the Senate.

– by Robert Farley, Brooks Jackson, D’Angelo Gore and Eugene Kiely 

Sources

NBC. “Meet the Press Transcript – Dec. 14, 2014.” 14 Dec 2014.

FoxNews.com. “Cheney defends CIA interrogation techniques, calls Senate report ‘deeply flawed.’ “  11 Dec 2014.

Yoo, John. Deputy Assistant Attorney General. Memo sent to William J. Haynes II. 9 Jan 2002.

Gonzales, Alberto. Attorney General. Memo sent to President George W. Bush. 25 Jan 2002.

Powell, Colin L. Secretary of State. Memo sent to Counsel to the President and Assistant to the President for National Security Affairs. 26 Jan 2002.

Hamdan v. Rumsfeld. No. 05-184. Supreme Court of the U.S. 29 Jun 2006.

Jacobson, Louis. “In wake of Senate report, Dick Cheney says terrorists ‘not covered by the Geneva Convention.’ ” PolitiFact. 14 Dec 2014.

International Committee of the Red Cross. “The Geneva Conventions of 1949 and their Additional Protocols.” 29 Oct 2010.

International Committee of the Red Cross. “Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, Article 3.” Accessed 16 Dec 2014.

O’Connell, Mary Ellen. “The ASIL Centennial Annual Meeting Adopts a Resolution on the Use of Armed Force and the Treatment of Detainees.” American Society of International Law. 19 May 2006.

Powell, Colin L. “Remarks to the United Nations Security Council.” New York City. United Nations. 5 Feb 2003.

Timeline of Major Events in the Iraq War.” New York Times. 21 Oct 2011.

The 9-11 Commission Report. Chapter 2, Foundation of the New Terrorism.” National Commission on the Terrorist Attacks Upon the United States. 22 Jul 2004.

Report of the Select Committee on Intelligence on the U.S. Intelligence Community’s Prewar Intelligence Assessments on Iraq.” Senate Committee on Intelligence. 9 Jul 2004.

Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba.” Director of National Intelligence. 5 Sep 2014.

FactCheck.org “Cheney’s Gitmo Recidivism Claims.” 14 May 2009.

Wallach, Evan. “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts.” Columbia Journal of Transnational Law. 2007.

Wallach, Evan. “Waterboarding Used to Be a Crime.” Washington Post. 4 Nov 2007.

International Military Tribunal for the Far East. Judgment of 4 November 1948.

Congressional Record. Sen. Ted Kennedy floor speech. 28 Sep 2006.

Transcript. “New Day.” CNN. 9 Dec 2014.

Wemple, Eric. “On CNN, former CIA director Michael Hayden defends a ‘medical procedure.’ ” Washington Post. 11 Dec 2014.

Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” Senate Committee on Intelligence. 9 Dec 2014.

Press release. “CIA Torture Report Highlights Unnecessary Medical Procedure.” Physicians for Human Rights. 10 Dec 2014.

Dennis, Brady. “Senate report: Uncooperative terrorism suspects faced rectal rehydration, feeding.” Washington Post. 9 Dec 2014.

Adams Sheets, Connor. “What Are ‘Rectal Feeding,’ ‘Rectal Hydration’? Doctors Call CIA Tactics Torture.” International Business Times.

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Dec. 12: Climate Change, Dropout Rate, Immigration http://www.factcheck.org/2014/12/dec-12-climate-change-dropout-rate-immigration/ Fri, 12 Dec 2014 19:39:44 +0000 http://www.factcheck.org/?p=91615
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No Back Taxes in Immigration Action http://www.factcheck.org/2014/12/no-back-taxes-in-immigration-action/ Thu, 11 Dec 2014 17:46:37 +0000 http://www.factcheck.org/?p=91419 President Barack Obama misspoke when he said that immigrants living illegally in the U.S. would have to “pay any back taxes” in order to qualify for work papers under the plan he initiated via executive action. They would not.

We wouldn’t normally be inclined to weigh in with a fact-check when someone erroneously slips an inaccurate word into an impromptu response to a live question. But this is the third time we’ve heard this mistake from a prominent Democrat.

In the prepared part of his speech at an immigration town hall in Nashville, Tennessee, on Dec. 9, Obama correctly noted that in order to register, qualified immigrants would — going forward — have to “pay taxes, contribute more fully to our economy.” But he added the “back taxes” line when answering a question from the audience.

Obama, Dec. 9: What we’re also saying, though, is that for those who have American children or children who are legal permanent residents, that you can actually register and submit yourself to a criminal background check, pay any back taxes and commit to paying future taxes, and if you do that, you’ll actually get a piece of paper that gives you an assurance that you can work and live here without fear of deportation. That doesn’t apply to everybody, but it does apply to roughly 5 million — about half of what is estimated to be the number of undocumented workers here.

Two days earlier, Julian Castro, Obama’s secretary of Housing and Urban Development, misspoke on this same point in an interview on CNN’s “State of the Union.”

Castro, Dec. 7: The president, by taking that executive action, is very clearly trying to address a broken immigration system, and take a strong first step to fix it, focusing on felons, not families, ensuring that we do everything we can to secure the border, and also give folks who have been here oftentimes for many years the opportunity to pay back taxes, to stay here with their family, to get right by the law as he has said.

And Senator-elect Gary Peters of Michigan, currently a congressman, issued a press release the day after the president’s immigration announcement making the same error.

Peters, Nov. 21: We need leadership on this critical issue, and in light of Congress’ lack of action on immigration reform, this will not only help keep families together, but bring workers out of the shadows, conduct background checks, require payment of back taxes and ensure taxes are paid going forward while Congress works on a long-term, bipartisan and comprehensive solution.

The immigration plan announced by Obama on Nov. 20 provides a temporary relief of three years from the threat of deportation to parents who are in the country illegally but who have children who are U.S. citizens or lawful permanent residents. The parents must have lived in the United States for at least five years, and they must register, and pass background checks in order to obtain the reprieve. The White House estimates that 5 million people are eligible for “provisional unlawful presence waivers.” If they meet certain requirements, those immigrants also would be given work authorization for three years.

For immigrants who step forward, the procedure is to make sure that they “start paying their fair share of taxes” so they can “temporarily stay in the U.S. without fear of deportation for three years at a time,” says a White House fact sheet. The key word in there is “start.” There is no mechanism to require immigrants in the country illegally to pay any back taxes in order to obtain a three-year work authorization.

An Obama administration official told us the president misspoke when he said that immigrants would have to “pay any back taxes.”

The confusion likely stems from a requirement in the 2013 Senate-passed immigration bill, which included a path to citizenship. In order to take the first step — provisional status — immigrants in the country illegally would have had to have, among other things, “satisfied any applicable Federal tax liability.” (See page 146 of the bill.) In other words, they would have had to pay back taxes.

Obama has repeatedly included that back taxes requirement when talking about legislation he’d like to see come out of Congress, as he did again in the immigration town hall.

It’s understandable that the president and others might inadvertently say that the executive action includes a provision on back taxes as they toggle back and forth between describing the particulars of the executive action, and still advocating for a congressional solution like the Senate bill. But for anyone who is directly affected by the president’s action and is considering stepping forward to register, it should be clear that currently, the executive action includes no such requirement.

– Robert Farley

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The Santorum File http://www.factcheck.org/2014/12/the-santorum-file/ Wed, 10 Dec 2014 18:38:03 +0000 http://www.factcheck.org/?p=91402 Rick Santorum, who finished a distant second in his bid for the Republican presidential nomination in 2012, has announced that he will run again for president in 2016.

We welcome the former Pennsylvania senator to the race, as we will others in the future, with a summary of our work on statements he has made over the years.

Our file on Santorum was quite slim when he announced in June 2011, but it has grown considerably since then. We can’t summarize all of our work on him — he’s tagged in at least 40 stories since 2011 — so we will focus here on remarks he has made on some of the major issues of the day.

Climate Change

At a campaign event in February 2012, Santorum called climate change a “hoax,” saying “man-made global warming” and the remedy for it were “bogus.” As we said at the time, climate scientists overwhelmingly agree that global warming is real and human activities are making it worse. A paper published in 2010 by the National Academy of Sciences found that 97 percent to 98 percent of climate researchers “most actively publishing in the field” agreed that climate change was occurring and humans were responsible for “most” of it.

More recently, the Intergovernmental Panel on Climate Change finalized a report on Nov. 2 that said it’s “extremely likely” that human activity is “the dominant cause of the observed warming since the mid-20th century.” At the time of Santorum’s remarks, the IPCC said human activity was “very likely” the main reason for global warming. (“Extremely likely” means that there’s a 95 percent to 100 percent probability that humans are the main cause of climate change, while “very likely” places the odds at between 90 percent and 95 percent, as explained in a Sept. 27, 2013 IPCC press release on the report’s draft findings.)

Immigration

Santorum made two statements on legal and illegal immigration this year that caught our attention.

The senator falsely claimed in July that the U.S. is “accepting more legal immigrants than we ever have.” We found that the number of people granted lawful permanent resident status decreased consecutively for two fiscal years. In 2013, there were 990,553 foreign-born individuals who became lawful permanent residents, down from 1,031,631 in 2012 and 1,062,040 in 2011, according to the Department of Homeland Security. The historical high for lawful immigration was in 1991, when 1,826,595 people obtained permanent resident status, which DHS attributes to the Immigration Reform and Control Act of 1986 signed into law by then-President Ronald Reagan.

He also said in November that there were “more people living in this country who were not born here than at any other time in the history of the country.” That’s true in raw numbers, as we wrote, but a greater percentage of the population was foreign-born from 1860 to 1920. In 2010, 12.9 percent of the country’s population was foreign-born, according to the U.S. Census Bureau. The peak was in 1890, when 14.8 percent of the population was born outside the United States.

Abortion

The senator, who opposes abortion, got several facts wrong during a New Hampshire radio talk show in 2011. While blaming abortions for “causing Social Security and Medicare to be underfunded,” Santorum incorrectly claimed that “one in three pregnancies end in abortion” in the United States. It’s actually fewer than one in four, according to a March 2011 report by the Guttmacher Institute.

During the same show, Santorum also wrongly claimed that “our birthrate is now below replacement rate for the first time in our history.” As we said at the time: The total fertility rate, not the birthrate, is used to determine the stability of a nation’s population, and the U.S. total fertility rate was below its replacement rate from 1972 to 2005, according to the Centers for Disease Control and Prevention.

Safety Net Programs

During the 2012 campaign, Republicans attacked President Obama for increasing the poor’s dependency on government programs, particularly food stamps and welfare.

In August 2012, Santorum blamed Obama for creating “a nightmare of dependency” that resulted in “almost half of America receiving some sort of government assistance.” But we found Santorum’s figures included senior citizens on Social Security and Medicare who paid into those government programs.

The Census Bureau’s income and program participation surveys estimate the number of Americans who are enrolled in at least one government program. The four largest programs — those with at least 40 million recipients — are Medicaid, Social Security, food stamps and Medicare. At the time of his remarks, the Census Bureau reported that 49 percent of Americans were enrolled in at least one government program, up from 44.4 percent of Americans in the third quarter of 2008 when George W. Bush was president.

In fact, the Census Bureau echoed Santorum’s language to describe program participation in 2008, saying “nearly half of U.S. residents live in households receiving government benefits.”

Education

Appearing on a Sunday talk show in February 2012, Santorum discussed the need to improve the nation’s education system. But, in doing so, he wrongly claimed that “one of three children drop out of school” in the U.S.

As we wrote in “Santorum Exaggerates Dropout Rate,” the “status dropout rate” — the percentage of those ages 16 to 24 who were not in school or had not obtained a GED — was 8.1 percent in 2009. The 2009 rate — the most recent data available at the time — was slightly higher than it was in 2008, but it was down significantly from the 1970s, 1980s, 1990s and even early 2000s, according to the Department of Education’s National Center for Education Statistics. The center’s most recent report says the status dropout rate was 6.6 percent in 2012.

The center also measures the “event dropout rate,” which is the percentage of public school students in grades 9 through 12 who dropped out of school “between one October and the next.” In 2007-2008, that rate was 4.1 percent.

– Eugene Kiely

Update, Dec. 13: This item was updated to include the most recent data on the status dropout rate.

 

 

 

 

 

 

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Help Us Reach Our Fundraising Goal http://www.factcheck.org/2014/12/help-us-reach-our-fundraising-goal/ Mon, 08 Dec 2014 21:54:28 +0000 http://www.factcheck.org/?p=91379 It was a busy campaign season for us at FactCheck.org.

We wrote 154 articles tagged “Election 2014.” We covered contested House races from Nebraska to West Virginia, Senate races from Alaska to Louisiana, and gubernatorial campaigns from Florida to Wisconsin. That doesn’t include 31 articles we wrote for “Players Guide 2014,” our biennial feature on special interest groups that spend heavily to influence elections.

We also collaborated with other organizations to reach as many voters as possible.

We wrote an eight-part “Senate Battle 2014” series that was featured on Politico. Our campaign articles also appeared on USA Today’s Political Ad Tracker iTunes app and U.S. Vote Foundation’s “My Voter Account,” as well as on the websites of numerous news organizations that are free (and encouraged) to republish our work.

We were able to do this with your help, and we are asking for your help again as we gear up for the 2016 campaign cycle.

We pay for an ad tracking service that provides us with digital copies of new TV campaign ads and email alerts when they first appear on the air. The service, which is provided by Kantar Media’s Campaign Media Analysis Group, allows us to stay on top of the latest ads in races across the country.

In 2013-2014, CMAG provided us with TV ads in House, Senate and gubernatorial campaigns. For an additional cost, CMAG will provide us with presidential campaign ads in the 2016 cycle.

As of Sept. 30, 2014, the first quarter of our 2015 fiscal year, we had raised $1,995 in individual donations. We hope to raise $100,000 this fiscal year to help pay for this service and other expenses related to our work.

In addition to helping us pay for the ad tracking service, your donations also help defray the cost of hosting our website and an undergraduate fellowship program for Penn students.

Your donations are very important to us. We accept only individual donations. We do not accept donations from business corporations, labor unions, political parties or advocacy groups. Our policy is to disclose the identity of any individual donor giving $1,000 or more. We also do not accept advertising.

FactCheck.org is a project of the University of Pennsylvania’s Annenberg Public Policy Center. The University of Pennsylvania is a 501(c)(3) organization, and your contribution is deductible from U.S. federal income taxes to the full extent allowed by law.

You can find our annual and quarterly financial disclosure reports on our About Us page. You can make an online donation or, if you prefer, send a check to FactCheck.org, 202 South 36th Street, Philadelphia, Pennsylvania, 19104.

We thank you for your past support and look forward to serving you in 2015.

– Eugene Kiely

P.S. We will periodically update this post to let you know how close we are toward reaching our $100,000 goal.

Update, Dec. 19: We have raised $11,200 in online contributions as of Dec. 18. Thank you, and please help us continue the momentum toward reaching our goal.

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FactCheck Mailbag, Week of Nov. 25 – Dec. 1 http://www.factcheck.org/2014/12/factcheck-mailbag-week-of-nov-25-dec-1/ Fri, 05 Dec 2014 21:50:38 +0000 http://www.factcheck.org/?p=91347 This week, a reader sent us a letter about former Pennsylvania Sen. Rick Santorum’s claim that there are “more people living in this country who were not born here than at any other time in the history of the country.”

In the FactCheck Mailbag, we feature some of the email we receive. Readers can send comments to editor@factcheck.org. Letters may be edited for length.

 

Santorum Was Right

Actually, Santorum’s statement was not misleading but was entirely correct ["Spinning Immigration Data," Nov. 26].  If he had stated that “this was the greatest percentage of immigrants into the nation,” that would have been wrong. Do not be hung up on percentages.

If anything, he understated the position. We are a nation of over 315 million people with no wide open frontiers and an increasing welfare state. It is not the 19th century where immigrants were allowed to “root hog or die.”

Frank W. Goudy
Cuba, Illinois

 

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Does ACA Give Incentive to Hire Immigrants? http://www.factcheck.org/2014/12/does-aca-give-incentive-to-hire-immigrants/ Fri, 05 Dec 2014 18:53:15 +0000 http://www.factcheck.org/?p=91299 Q: Did Obama’s executive actions on immigration include a $3,000 bonus to employers for each immigrant they hire instead of U.S. citizens?

A: Not exactly. In very limited cases, employers may avoid the Affordable Care Act’s penalty if they hire immigrants who are not eligible for health care subsidies. But the law bars employers from discriminating against employees based on eligibility.

FULL QUESTION

Is the following statement true? It is from Fox News.com/politics

Businesses reportedly will have a $3,000-per-employee incentive to hire illegal immigrants over native-born workers under President Obama’s sweeping action on illegal immigration.

FULL ANSWER

This issue arises from a curious intersection between the Affordable Care Act and President Obama’s executive actions on immigration.

Under the ACA, employers may be required to pay penalties if their employees are eligible for tax credits to purchase health insurance through the law’s new marketplaces. But those who gain provisional legal status under Obama’s immigration plan are not eligible for health care subsidies — leading some Republicans and conservative media outlets to say this creates an incentive for employers to hire those with provisional legal status over U.S. citizens.

Health care experts say that could happen, but only in rare circumstances. And, according to a White House official, an employer who knowingly hires or fires employees based on their eligibility for health care tax credits could run afoul of discrimination provisions written into the law.

Two Scenarios

First, let us explain how this issue started.

Obama announced his immigration plan on Nov. 20. The plan provides a temporary relief of three years from the threat of deportation to parents who are in the country illegally but who have children who are U.S. citizens or lawful permanent residents. The parents must have lived in the United States for at least five years, and they must register, and pass background checks in order to obtain the reprieve. The White House estimates that 5 million people are eligible for “provisional unlawful presence waivers.” If they meet certain requirements, those immigrants also would be given work authorization for three years.

They would not, however, be eligible for federal tax credits to purchase insurance on the ACA-created health care exchanges. Nor would these immigrants be allowed to buy insurance through exchanges, even if they were paying for the insurance entirely on their own — as would have been permitted in the immigration bill that passed the Senate in 2013.

Some have argued this will encourage employers to hire those with provisional legal status over U.S. citizens in order to avoid an ACA penalty imposed on businesses that fail to provide insurance to their employees, or that offer plans that don’t meet the law’s minimum coverage requirements or are deemed unaffordable by the ACA’s definition. But, for a variety of reasons, this potential incentive would arise in only a fraction of employment situations.

To start, there is no “employer mandate” for companies with fewer than 50 full-time employees. In 2007, about 96 percent of companies — 5.8 million out of 6 million — had fewer than 50 employees. The vast majority of U.S. workers are employed at large companies, and about 96 percent of firms with 50 or more employees offer health insurance to their workers. Provided the insurance meets the ACA’s minimum standards and its definition of affordable coverage, those companies would not face ACA penalties, either. According to the White House, “less than 0.2 percent of all firms (about 10,000 out of 6 million) may face employer responsibility requirements.”

Nonetheless, that leaves thousands of mid- to large-size companies that could face penalties under two scenarios:

Scenario 1: Employers with 50 or more full-time workers in 2016 (and 100 or more in 2015) who do not offer health insurance benefits would have to pay a penalty if just one employee receives a health insurance tax credit. The penalty in 2016 is $2,000 per full-time worker (regardless of how many get tax credits), excluding the first 30 workers. Under this scenario, a company could avoid a penalty only if it hires an entire workforce comprised of people who do not qualify for tax credits. That would include immigrants with provisional legal status, but also those on Medicare or highly-compensated employees who do not qualify for federal tax credits or cost-sharing subsidies.

Health experts say such a scenario would be highly unlikely. The full penalty is triggered whether one worker, or all of them, gets a tax credit. And if the penalty formula kicks in, companies would pay $2,000 more per full-time employee regardless of the immigration status of any particular employee.

Scenario 2: Employers with 50 or more full-time workers in 2016 (and 100 or more in 2015) also could incur penalties if they do offer insurance but that insurance does not meet the minimum coverage thresholds required by the ACA, or if the employer-sponsored plan is deemed unaffordable for some employees (more than 9.5 percent of family income). In either case, the employer could be subject to a $3,000 penalty for each employee that enrolls in a qualified health plan and qualifies for tax credits or subsidies. Given the mention of a $3,000 penalty, it appears those warning about the immigrant-vs.-citizen loophole are referring to this scenario.

It is conceivable under this second scenario that an employer would benefit if an employee was not eligible for a tax credit or cost-sharing subsidy, because they would be sure to avoid a potential tax penalty.

If only a few qualify for government assistance, it could be worth hiring such immigrants, said Margaret Riley, a health law professor at the University of Virginia.

“But you’re also a less attractive employer because you’re offering expensive or substandard insurance while still incurring costs for offering insurance,” Riley wrote to us in an email. “It looks to me like you’d be spending a lot of time trying to get the math exactly right. And it starts looking like you’re manipulating things. If you decide to offer substandard insurance and start hiring newly permitted illegal immigrants … you may well get caught in a discrimination scheme. There may be incentives for a couple of hires, but one has to assume that there are other business considerations that should also be in play. I’m not sure that saving money is the motivation if it goes beyond that.”

Anti-Discrimination Provision of the ACA

Angel Padilla, a health policy analyst at the National Immigration Law Center, which supports the president’s actions, told us that an employer who would like to create a scenario to take advantage of the perceived loophole would violate various anti-discrimination laws.

The White House points specifically to discrimination provisions written into the ACA that it says prohibit employers from giving preference to job-seekers who don’t qualify for health care tax credits, or to fire U.S. citizens because they receive tax credits and then hire those immigrants who are not eligible.

Here’s the applicable portion of the Affordable Care Act:

SEC. 1558. PROTECTIONS FOR EMPLOYEES.

The Fair Labor Standards Act of 1938 is amended by inserting after section 18B (as added by section 1512) the following:

‘‘SEC. 18C. o29 U.S.C. 218c. PROTECTIONS FOR EMPLOYEES.

‘‘(a) PROHIBITION.—No employer shall discharge or in any manner discriminate against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment because the employee (or an individual acting at the request of the employee) has—

‘(1) received a credit under section 36B of the Internal Revenue Code of 1986 or a subsidy under section 1402 of this Act;

… An employee who believes that he or she has been discharged or otherwise discriminated against by any employer in violation of this section may seek relief in accordance with the procedures, notifications, burdens of proof, remedies, and statutes of limitation set forth in section 2087(b) of title 15, United States Code.

Employees who feel they have been discriminated against based on eligibility for health care tax credits could file a complaint with the Secretary of Labor. If a case is deemed to have merit, the employee would be reinstated to their former position, with back pay, and might be eligible for compensatory damages as well.

In addition, Padilla said, the Immigration and Nationality Act’s anti-discrimination provision would prohibit an employer from inquiring about a person’s particular immigration status or employment authorization documents prior to hire.

He also said, “It would likely violate the INA’s prohibition on discrimination based on citizenship status for an employer to prefer job candidates who would be ineligible for ACA coverage — since that would likely discriminate against citizens, LPR [Lawful Permanent Resident], and other types of non-DACA work authorized workers.” DACA refers to the Deferred Action for Childhood Arrivals program that has been in effect since 2012 and was expanded by the president’s new immigration plan.

Timothy Jost, a health law professor at Washington and Lee University, told us the health care law clearly prohibits an employer from firing someone based on whether he or she applies for a health care tax credit. But he said it would be harder to make a case using that law against an employer who gives hiring preference to someone who is ineligible for a tax credit.

Riley agreed, but said the gyrations that a company would have to go through to take advantage of the loophole might expose it to scrutiny.

“Discrimination in any context is notoriously hard to prove,” Riley said. “But here, it would be pretty difficult to create the perfect scenario where everything holds together. So that may look suspicious. And for most companies, I doubt that newly permitted illegal immigrants are necessarily better employment candidates than citizens. So a course of conduct of hiring the former to the exclusion of that latter would certainly raise questions.”

Ultimately, Jost believes a bigger disincentive for employers would simply be market forces.

“If you are trying to hire competent employees who are going to do a good job, that [taking advantage of such a loophole] is not going to attract employees to your business,” Jost said.

“This is kind of a bugaboo out there,” he said, “because it’s only going to affect a tiny percentage of employees.”

– Robert Farley

Sources

Dinan, Stephen. “Obamacare offers firms $3,000 incentive to hire illegals over native-born workers.” Washington Times. 25 Nov 2014.

WhiteHouse.gov. “FACT SHEET: Immigration Accountability Executive Action.” 20 Nov 2014.

Government Printing Office. S. 744. Border Security, Economic Opportunity, and Immigration Modernization Act.

WhiteHouse.gov. “The Affordable Care Ac Increases Choice and Saving Money for Small Businesses.”

Kaiser Family Foundation. Employer Responsibility Under the Affordable Care Act. Updated 24 Nov 2014.

Eilperin, Julie and Goldstein, Amy. “White House delays health insurance mandate for medium-size employers until 2016.” Washington Post. 10 Feb 2014.

Bianchi, Alden. “A Primer on ‘Low-Cost’ Group Health Plans.” Mintz Levin. 18 Jun 2013.

15 U.S. Code § 2087

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Playing the Race Card in Louisiana http://www.factcheck.org/2014/12/playing-the-race-card-in-louisiana/ Fri, 05 Dec 2014 18:41:05 +0000 http://www.factcheck.org/?p=91351 A Democratic radio ad attacks Republican Rep. Bill Cassidy for endorsing “a documentary which claims slavery was better for black folks than welfare.” But the film didn’t make such a claim, and Cassidy didn’t discuss welfare or slavery in his endorsement of it.

The radio ad, paid for by the Democratic State Central Committee of Louisiana, began airing in New Orleans just days before the Dec. 6 runoff election between Cassidy and Sen. Mary Landrieu. The polls show Cassidy comfortably ahead of the three-term Democratic incumbent, who is trying to buck a Republican wave that gave the GOP control of the U.S. Senate in November.

In the ad, a man and woman discuss the upcoming election. At one point, the man says, “And can you believe, Doc Cassidy has endorsed a documentary which claims slavery was better for black folks than welfare.”

The ad is referring to a 2010 conservative documentary called “A New America.” The film features conservative political commentators presenting the conservative viewpoint on a host of issues, including the Federal Reserve, the U.S. Constitution, health care, and government social welfare programs.

“One of the commentators in the documentary is Star Parker, who argues that slavery was better than welfare,” Kirstin Alvanitakis, a spokeswoman for the Louisiana Democratic party, told us in an email.

But that’s a matter of interpretation, not fact.

Parker, a columnist who unsuccessfully ran for Congress in 2010, takes the position in the film that poor people are too dependent on social programs. At one point, she compares the psychological impact of welfare to slavery. She argues that slavery was so bad that blacks actively sought to get out of it, while “welfare folks are comfortable” with government assistance and don’t seek to break what she describes as “this vicious cycle of dependency.”

Parker: I think the difference between welfare and slavery is that in slavery you always have a hope for the future. You can always hope that the law will change. You can actively participate, as many slaves did, in underground and other methods to leave. The challenge with welfare is that it steals away just enough dignity and assurance within a person that they should want more, that they just end up living this vicious cycle of dependency. With slavery, people generally want out. But with welfare, folks are comfortable.

The state Democratic party has every right to take issue with Parker’s opinion, but it is putting words in her mouth when it claims she said “slavery was better for black folks than welfare.”

The ad also goes beyond the facts when it implies that Cassidy endorses the idea that slavery was better than welfare.

Cassidy did endorse the film and, in fact, appeared in it, according to a video that features him on the YouTube channel set up for release of the movie. The YouTube channel was created on Jan. 8, 2010, and one of the trailers said that the movie was scheduled for release on Jan. 21, 2010. That was when Congress was debating the health care bill and the movie trailers deal extensively with the conservative belief that President Obama’s “government-run” health care plan would lead to rationing, diminished quality of care, and increased government dependency. One of the trailers is a nearly nine-minute long video titled, “The Truth About Health Care.”

A doctor, Cassidy talks about the Democratic health care plan. He clearly embraces the general notion that it will increase government dependency at the expense of individual freedom. He also mentions cap and trade, long term care insurance and in general “the protective role of government in all segments of our life.”

But Cassidy does not discuss slavery, welfare or Parker’s commentary. And he certainly does not endorse the notion that “slavery was better for black folks than welfare.”

– Eugene Kiely

 

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