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    THE NEW YORK TIMES  --  2002

    nyt_digest_2002.txt

    http://www.nytimes.com/

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December 27, 2002

AIDES WEIGH SUPREME COURT PICKS

By Neil A. Lewis
http://www.nytimes.com/2002/12/27/politics/27SUPR.html

WASHINGTON, Dec. 26 -- White House officials are so convinced that there will be
at least one Supreme Court vacancy by the end of the current term in early
summer that President Bush's senior aides have been quietly conducting serious
internal discussions about possible nominees.

These conversations have begun with a discussion of whether Chief Justice
William H. Rehnquist will decide to end his 31-year career on the court at the
end of this term and whether Mr. Bush will have to fill one or two vacancies.

In almost all of the possibilities, officials said, Alberto R. Gonzales, the
White House counsel and a longtime legal adviser to Mr. Bush from Texas, would
be a candidate. Mr. Gonzales would be the first Hispanic member of the Supreme
Court. Mr. Bush's top aides, notably Karl Rove, the president's chief political
adviser, are described as keenly aware that this would provide a political bonus
for both him and the Republican Party, which has been aggressively courting
Hispanic voters.

"I don't think there's any question the president would turn to him," said a
senior administration official who knew details of the informal but high-level
discussions.

The political considerations, and delicate ethnic balancing, are so central to
the deliberations that administration officials said the chances of one possible
candidate, Judge Samuel A. Alito Jr., a federal appeals court judge in Newark,
may have lessened after one senior official noted that there was already an
Italian-American on the Supreme Court, Justice Antonin Scalia.

Besides Mr. Gonzales, the other figure who has emerged as a strong candidate is
Judge J. Harvie Wilkinson III, the chief judge of the appeals court based in
Richmond, Va.

President Bush has been briefed on the internal conversations, which have taken
on a new urgency because of the age of several justices and, if for no other
reason, because Republicans have been waiting so long to make new appointments.
The court began its ninth term this year without a turnover, the longest such
period since the early 19th century.

The three oldest justices are Republicans, and White House officials believe
that two of them, Chief Justice Rehnquist and Justice Sandra Day O`Connor, would
be most likely to retire, given the knowledge that a Republican president would
pick their replacements.

The incoming chairman of the Senate Judiciary Committee, Orrin G. Hatch, said
one or more retirements were so inevitable that he was calling on any justices
who plan to leave at the end of the term this spring to end the suspense and
announce their intentions now.

"I believe we'll have at least one before June" when the court's current term
ends, Mr. Hatch said in a recent interview.

Speculation about court retirements have been a regular feature in recent years
given the ages of the three oldest justices, John Paul Stevens, who is 82, Chief
Justice Rehnquist, 78, and Justice O'Connor, 72.

Another factor has changed the nature of the discussion from the inevitable
speculation to a growing assumption that one or more of the justices may soon
retire: The administration's let's-be-prepared deliberations were set in motion
by the November election and the impending shift to Republican control of the
Senate, which must vote on confirming any Supreme Court nominees.

When Mr. Rehnquist told the television interviewer Charlie Rose last year that
"traditionally, Republican appointees have tended to retire during Republican
administrations," he meant that it would be far easier for a justice to leave
when his or her successor would bring a similar ideology. That reasoning becomes
even stronger with an aggressive Republican Senate taking over in January. If
all the Republicans supported a nominee, the Democrats could not block
confirmation unless they engaged in a filibuster, a difficult political task.

Administration officials do not expect that Justice Stevens intends to retire
soon or has much interest in leaving and giving them the opportunity to replace
him.

(Page 2 of 2)

If the chief justice retires, Mr. Bush will have to decide whether to elevate
one of the current justices to the chief's position and nominate a new associate
justice or simply name a new candidate for chief justice from outside the court.

That calculation will change, of course, if a second justice, also chose to
leave the court, creating a different situation.

Administration officials say the short list of candidates for Supreme Court
seats besides Mr. Gonzales includes Judge Wilkinson, Judge J. Michael Luttig who
also sits on the United States Court of Appeals for the Fourth Circuit and
Justice Janice Rogers Brown of the California Supreme Court. Justice Brown, a
black woman, wrote the majority opinion in 2000 interpreting the state's
referendum against affirmative action in a way that delighted conservatives.

Other possibilities, officials say, include Judge Alito, who was a clerk for
Justice Scalia and is nicknamed Scalito by some lawyers but who is seen as a far
less confrontational figure.

Another candidate is Judge Edith H. Jones of the United States Court of Appeals
for the Fifth Circuit in New Orleans who is noted for sharp conservative
opinions. Judge Jones was poised to be named by President Bush's father in 1990
when he decided instead to choose David H. Souter. Also mentioned has been Larry
D. Thompson, the deputy attorney general, who would give the court two black
members.

If Mr. Bush decides to elevate a current justice to the chief's position, the
most likely candidates, officials said, would be Justice Scalia or Justice
O`Connor because the other Republican-appointed members of the court have
assorted liabilities. The two possibilities come with different political
dimensions. Justice O`Connor would add to her historical legacy as the court's
first woman by becoming the first woman chief justice. But Republicans have, for
years, favored younger people as judicial choices so they can remain longer and
have greater impact on the bench.

Elevating Justice Scalia would almost certainly entail a confirmation battle,
but one in which the White House might be willing to engage.

If Mr. Bush needs to name someone from outside to become chief justice, a
leading candidate, officials said, would be Judge Wilkinson, who sits in
Charlottesville and is 58.

Judge Wilkinson, they said, would provide the stature needed to be chief justice
because of his courtly manner and his years leading the circuit court, the
nation's boldest conservative appeals court. Moreover, they said, he would stand
in relief to his more aggressively conservative benchmate, Judge Luttig and
might thus be more palatable to Democrats.

Some conservatives are wary of Mr. Gonzales, unsure if he is sufficiently
faithful to their views. They have been deeply disappointed by the performance
of Justice Souter on the court after they had been assured he would be to their
liking. "No more Souters" became a rallying cry, meaning no support for anyone
whose views were uncertain.

These conservatives have suggested to administration officials that they would
prefer that Mr. Bush abstain from putting Mr. Gonzales on the court now and wait
for a later vacancy, which he could fill with Miguel Estrada who would by then
have some judicial experience. Mr. Estrada, a Washington lawyer and reliable
conservative, is expected to soon be confirmed to a seat on the federal appeals
court in Washington.

In his most publicized ruling as a justice on the Texas Supreme Court, Mr.
Gonzales charged that some conservative colleagues were engaging in "judicial
activism" when they wanted to enforce a more rigid reading of a statute
requiring minor girls to inform their parents before receiving an abortion. But
in the same opinion, Justice Gonzalez suggested that while he was obligated to
read the statute as he believed the legislature intended, his personal views
were strongly opposed to abortion.

Officials believe that, in any event, his personal story in becoming the first
Hispanic justice would become the dominant issue in any public debate. He was
raised in humble circumstances by parents who never got past elementary school
and he eventually graduated from Harvard Law School.

One official said that Mr. Gonzales had cultivated a notion that he was
reluctant to be named to the court but that was untrue. The official noted that
he still likes to be addressed as "Judge Gonzalez."

Judge Wilkinson may have a clearer judicial record on the abortion issue,
upholding state restrictions in some cases.

One senior official said that while the prospect of filling a seat or two on the
Supreme Court was exciting, it was also daunting. It is, the official said, "as
much a burden as an opportunity."

Copyright 2002 The New York Times Company

* * *


December 15, 2002

BUSH HAS WIDENED AUTHORITY OF C.I.A. TO KILL TERRORISTS

By James Risen and David Johnston

WASHINGTON, Dec. 14 -- The Bush administration has prepared a list of terrorist
leaders the Central Intelligence Agency is authorized to kill, if capture is
impractical and civilian casualties can be minimized, senior military and
intelligence officials said.

The previously undisclosed C.I.A. list includes key Qaeda leaders like Osama bin
Laden and his chief deputy, Ayman al-Zawahiri, as well as other principal
figures from Al Qaeda and affiliated terrorist groups, the officials said. The
names of about two dozen terrorist leaders have recently been on the lethal-
force list, officials said. "It's the worst of the worst," an official said.

President Bush has provided written legal authority to the C.I.A. to hunt down
and kill the terrorists without seeking further approval each time the agency is
about to stage an operation. Some officials said the terrorist list was known as
the "high-value target list." A spokesman for the White House declined to
discuss the list or issues involving the use of lethal force against terrorists.
A spokesman for the C.I.A. also declined to comment on the list.

Despite the authority given to the agency, Mr. Bush has not waived the executive
order banning assassinations, officials said. The presidential authority to kill
terrorists defines operatives of Al Qaeda as enemy combatants and thus
legitimate targets for lethal force.

Mr. Bush issued a presidential finding last year, after the Sept. 11 attacks on
New York and Washington, providing the basic executive and legal authority for
the C.I.A. to either kill or capture terrorist leaders. Initially, the agency
used that authority to hunt for Qaeda leaders in Afghanistan. That authority was
the basis for the C.I.A.'s attempts to find and kill or capture Mr. Bin laden
and other Qaeda leaders during the war in Afghanistan.

The creation of the secret list is part of the expanded C.I.A. effort to hunt
and kill or capture Qaeda operatives far from traditional battlefields, in
countries like Yemen.

The president is not legally required to approve each name added to the list,
nor is the C.I.A. required to obtain presidential approval for specific attacks,
although officials said Mr. Bush had been kept well informed about the agency's
operations.

In November, the C.I.A. killed a Qaeda leader in a remote region of Yemen. A
pilotless Predator aircraft operated by the agency fired a Hellfire antitank
missile at a car in which Qaed Salim Sinan al-Harethi, also known as Abu Ali,
was riding. Mr. Harethi and five other people, including one suspected Qaeda
operative with United States citizenship, were killed in the attack.

Mr. Harethi, a key Al Qaeda leader in Yemen who is suspected of helping to plan
the bombing of the American destroyer Cole in 2000, is believed to have been on
the list of Qaeda leaders that the C.I.A. had been authorized to kill. After the
Predator operation in Yemen, American officials said Mr. Bush was not required
to approve the mission before the attack, nor was he specifically consulted.

Intelligence officials said the presidential finding authorizing the agency to
kill terrorists was not limited to those on the list. The president has given
broad authority to the C.I.A. to kill or capture operatives of Al Qaeda around
the world, the officials said. But officials said the group's most senior
leaders on the list were the agency's primary focus.

The list is updated periodically as the intelligence agency, in consultation
with other counterterrorism agencies, adds new names or deletes those who are
captured or killed, or when intelligence indicates the emergence of a new
leader.

The precise criteria for adding someone to the list are unclear, although the
evidence against each person must be clear and convincing, the officials said.
The list contains the names of some of the same people who are on the Federal
Bureau of Investigation's list of most wanted terror suspects, although the
lists are prepared independently.

Officials said the C.I.A., working with the F.B.I., the military and foreign
governments, will seek to capture terrorists when possible and bring them into
custody.


BUSH HAS WIDENED AUTHORITY OF C.I.A. TO KILL TERRORISTS
(Page 2 of 2)

Counterterrorism officials prefer to capture senior Qaeda leaders for
interrogation, if possible. They regard killing as a last resort in cases in
which the location of a Qaeda operative is known but capture would be too
dangerous or logistically impossible, the officials said.

Under current intelligence law, the president must sign a finding to provide the
legal basis for covert actions to be carried out by the C.I.A. In response to
past abuses, the decision-making process has grown into a highly formalized
review in which the White House, Justice Department, State Department, Pentagon
and C.I.A. take part.

The administration must notify Congressional leaders of any covert action
finding signed by the president. In the case of the presidential finding
authorizing the use of lethal force against members of Al Qaeda, Congressional
leaders have been notified as required, the officials said.

The new emphasis on covert action is an outgrowth of more aggressive attitudes
regarding the use of lethal force in the campaign against terrorism. Moreover,
such operations have become easier to conduct because of technological advances
like the development of the Predator, which has evolved from a camera-carrying
surveillance drone into an armed robot warplane controlled by operators safely
stationed thousands of miles from any attack.

The development of the armed Predator drone has made it much easier for the
C.I.A. to pursue and kill terrorists in ways that would almost certainly not
have been tried in the past for fear of the potential for American casualties.
In the strike in Yemen, for example, Mr. Harethi was living in a remote, lawless
region where the Yemeni government had little control. Not long before the
Predator strike, Yemeni forces attacked Qaeda operatives in that same area and
were beaten back with many casualties.

The more aggressive approach to counterterrorism is showing results.

George J. Tenet, the director of central intelligence, said in a speech last
week that more than one-third of the top leadership of Al Qaeda identified
before the war in Afghanistan had been killed or captured.

One recent success, he said, came with the capture of Al Qaeda's operations
chief for the Persian Gulf region who had been involved in the planning of the
1998 bombings of two American embassies in East Africa as well as the bombing of
the Cole in 2000. Since September 2001, Mr. Tenet added, more than 3,000
suspected Qaeda operatives or their associates have been detained in more than
100 countries.

But the decision by the Bush administration to authorize, under certain
circumstances, the killing of terrorist leaders threatens to thrust it into a
murky area of national security and international law that is almost never
debated in public because the covert operations are known only to a small circle
of executive branch and Congressional officials.

In the past, the Bush administration has criticized the targeting of Palestinian
leaders by Israeli forces. But one former senior official said such criticism
had diminished as the administration sought to move aggressively against Al
Qaeda.

Still, some national security lawyers said the practice of drawing up lists of
people who are subject to lethal force might blur the lines drawn by
government's ban on assassinations. That prohibition was first ordered by
President Gerald Ford, and in the view of some lawyers, it applies not only to
foreign leaders but to civilians. (American officials have said in the past that
Saddam Hussein would be a legitimate target in a war, as he is a military
commander as well as Iraq's president.)

"The inevitable complication of a politically declared but legally undeclared
war is the blurring of the distinction between enemy combatants and other
nonstate actors," said Harold Hongju Koh, a professor of international law at
Yale University and a former State Department official in President Bill
Clinton's administration. "The question is, what factual showing will
demonstrate that they had warlike intentions against us and who sees that
evidence before any action is taken?"

* * *

December 6, 2002

U.S. OFFERS GUANTANAMO DETAINEES REWARDS

By The Associated Press

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- The U.S. military is shifting its
approach toward Guantanamo detainees, offering more rewards for cooperative
behavior, the task force commander overseeing the detention mission at this U.S.
base says.

Benefits include the opportunity to sleep, eat and pray together in a new
medium-security detention wing under construction. Currently prisoners are held
in maximum-security individual cells, where communal activities are limited.

"I believe that having more incentives will make our interrogation much more
successful," Army Maj. Gen. Geoffrey Miller said in an interview late Thursday.

"Medium-security is a recognition of cooperation and adherence to the rules,"
Miller said. "It gives them hope. Hope is of enormous importance."

Whether the United States plans to bring more detainees to Guantanamo, Miller
would not say. But as the 52-year-old general begins his two-year tour here,
work continues to expand the detention compound.

Seized by the United States in the Spanish-American War and held under a 1903
lease from Cuba, Guantanamo is a 45-square-mile area near Cuba's eastern tip.
The first detainees arrived in January. Not quite a year later, more than 600
detainees from 43 countries are being held here.

They have not been formally charged and have no access to lawyers or courts. The
U.S. government argues it has the right to hold the men as enemy combatants
while officials interrogate them and consider the next step.

None has been allowed to see his family. But a handful of Afghan and Pakistani
detainees have been sent home after being cleared of terrorist suspicions.

Miller would not qualify how well the interrogations have gone so far, but he
said interrogators are getting better at their job and the information they
gather is still important.

"It takes patience to be able to gain information of an intelligence value,"
Miller said in his first interview with journalists since assuming the command
Nov. 4.

He takes over responsibility for a camp with 816 individual cells and plenty of
free space. The military has not specified why it needs the extra cells, though
U.S. troops could take more captives as they continue anti-terrorism efforts and
the government considers war with Iraq.

On Wednesday, the military gave journalists a first glimpse inside Camp Delta,
though they were not allowed to see detainees or take photographs.

During the Muslim holy month of Ramadan, which was ending Friday, all but a
handful of detainees have been fasting during the daylight hours, so the
military fed them once before sunup, and immediately when the sun sets. For the
end of the fast, the detainees were to be given imported baklava.

Guantanamo is Miller's 24th deployment and follows an assignment in Seoul, South
Korea. He has focused his career in artillery and infantry, though even after a
few hundred parachute jumps, he could always do one more.

"I go through Camp Delta every day. I walk through each cell block, to ensure
that with a leader's presence there things go better," he said. "(The detainees)
know who I am. I'm probably the only guy with two stars who walks through the
camp."

* * *


December 3, 2002

GUANTANAMO PRISONERS SEEK DAY IN COURT

By The Associated Press

WASHINGTON (AP) -- Months after being captured in the war on terrorism, some
detainees at Guantanamo Bay Naval Base are seeking their day in court. A federal
appeals court appears to have doubts about whether they're entitled to one.

Three appeals judges Monday questioned whether 16 foreigners from Australia,
Britain and Kuwait have any due process rights under U.S. law while they are
being held by the American military at Guantanamo without access to lawyers and
without being charged.

The Bush administration's position is that "'we have no court in the world that
may hear from our clients;' we believe the government is mistaken," Joe
Margulies, one of the lawyers representing those held at Guantanamo, told the
court. "Our clients have been held incommunicado since December and held in
Guantanamo since January."

During the 90-minute argument, Judge A. Raymond Randolph pointed to one of his
previous rulings that a foreign entity without property or presence in the
United States has no constitutional rights, under the due process clause or
otherwise. One of Randolph's colleagues in the Guantanamo case, Judge Stephen
Williams, also was part of that earlier unanimous ruling.

Randolph was appointed to the court by President Bush's father. Williams is a
Reagan appointee. The third member of the Guantanamo panel, Merrick Garland, is
a Clinton appointee.

The detainees and their families are seeking "the most modest of rights," said
attorney Thomas Wilner, who is representing 12 Kuwaitis. "We want access to an
impartial tribunal."

"Guantanamo is unique," Margulies said. "It's the only place in the world
where the U.S. exercises exclusive jurisdiction and control." The Bush
administration notes that the United States and its military have similar
arrangements with other nations.

The detainees' lawyers are challenging a ruling by U.S. District Judge Colleen
Kollar-Kotelly that the Guantanamo prisoners are not in the United States and
thus do not fall under the jurisdiction of federal courts.

Seized by the United States in the Spanish-American War and leased from Cuba for
the past century, Guantanamo is a 45-square- mile area on the southeastern tip
of Cuba now holding nearly 600 detainees from more than 40 countries, including
about 60 Pakistanis and some 100 Saudi Arabians. None of the detainees have been
allowed to see their families.

A handful of Afghan and Pakistani detainees have been sent home from Guantanamo
after being cleared of terrorist suspicions.

Kollar-Kotelly's ruling was based on a 1950 Supreme Court decision that U.S.
courts lacked jurisdiction over a habeas corpus petition filed by Germans seized
by the American military in China and tried and convicted before a military
commission in connection with World War II.

The detainees' situation is "identical" to that of the German nationals sent to
Landsberg prison in Germany and denied access to U.S. courts, said Deputy
Solicitor General Paul Clement.

At least the Germans got their day in court before a military commission, the
Guantanamo detainees' lawyers responded.

The Kuwaitis' lawyers want to rely on two federal statutes. The federal appeals
panel seemed skeptical of that approach and Kollar-Kotelly rejected those
claims, saying federal law makes an exemption for military authority exercised
in time of war.

* * *


WHITE HOUSE WEIGHS LETTING MILITARY TRIBUNAL TRY MOUSSAOUI, OFFICIALS SAY

By PHILIP SHENON and ERIC SCHMITT

WASHINGTON, Nov. 9 -- The White House is weighing a proposal to abandon the
Justice Department's prosecution of Zacarias Moussaoui in a federal court,
remove him from the United States and place him before a military tribunal in
Guantánamo Bay, Cuba, administration officials say.

They said the proposal to shut down the civilian prosecution of Mr. Moussaoui,
the only person charged in an American court with involvement in the Sept. 11
attacks, reflected a growing fear in the government that legal problems faced by
the Justice Department in pursuing the case might be insurmountable.

The officials, speaking on condition of anonymity, said that while there had
been no final decision on moving Mr. Moussaoui to the American military base in
Cuba, the proposal had been discussed in recent weeks among lawyers at the White
House counsel's office, the Pentagon and the Justice Department.

They said Defense Secretary Donald H. Rumsfeld was recently briefed by aides on
the possibility that Mr. Moussaoui would be put under the Pentagon's control.

The officials said it was unclear if Attorney General John Ashcroft had weighed
in with the White House on the issue, but they said that other senior officials
at the Justice Department did not want to lose control of the case to the
Pentagon and were urging the White House to hold off on a decision to abandon
the trial.

Mr. Moussaoui, a 34-year-old French citizen, is facing trial next year in
Alexandria, Va., on charges that he conspired in last year's terror attacks.
Civilian and military lawyers said it was unclear whether the court-appointed
lawyers assigned to advise Mr. Moussaoui would be able to prevent the
administration from moving him to Cuba.

Mr. Moussaoui, who is trying to act as his own lawyer, has admitted that he is a
member of Al Qaeda, but he has insisted that he had nothing to do with the
attacks.

The legal problems for the Justice Department center on the refusal of the
Pentagon and intelligence agencies to meet Mr. Moussaoui's demand for access to
witnesses and evidence that, his court- appointed lawyers say, could aid in his
defense.

The defense is seeking access to a variety of recently captured Qaeda figures,
most notably Ramzi bin al-Shibh, a young Yemeni who was apprehended in Pakistan
last month. He is accused of being a crucial planner of the Sept. 11 attacks and
is identified by name throughout Mr. Moussaoui's indictment.

"The Pentagon and the C.I.A. argue, quite justifiably, that they want to keep
these terrorists in isolation and under interrogation," even if that means
abandoning the prosecution of Mr. Moussaoui, one official said.

Law enforcement officials have said that in secret court filings, Mr.
Moussaoui's court-appointed lawyers have argued that without the access, he will
be deprived of his Sixth Amendment right to seek out witnesses who might prove
his innocence.

The officials said the judge in the case, Leonie M. Brinkema, had appeared to be
sympathetic to the defense arguments and, in court orders not released to the
public, had ordered that some of the witnesses be made available.

In a military tribunal, officials said, Mr. Moussaoui would almost certainly
have fewer procedural rights to seek testimony from witnesses, including the
captured Qaeda leaders.

His transfer to a tribunal might also be a relief to the administration because
it would end the chaos created at recent court hearings, which Mr. Moussaoui has
used as opportunities for tirades denouncing the United States and its criminal
justice system.

A senior administration official, speaking on condition of anonymity, said that
the Pentagon's general counsel, William J. Haynes II, recently discussed the
proposal to transfer Mr. Moussaoui to Guantánamo Bay with his counterparts in
the White House counsel's office and at the Justice Department.

The official said that while Mr. Rumsfeld had been briefed on the proposal to
move Mr. Moussaoui to Cuba, he had not yet been asked to lobby the White House
in support of the proposal.

(Page 2 of 2)

The officials emphasized that whatever was done with Mr. Moussaoui, he would
face trial somewhere, whether in a civilian court or before a military tribunal.
"It's not a question of whether he'll be brought to justice," said an official,
speaking on condition of anonymity. "It's a question of where and how."

Eugene R. Fidell, a Washington lawyer who is president of the National Institute
of Military Justice, said that a decision to move Mr. Moussaoui from a civilian
courtroom to a tribunal might be a sign of "nimbleness" by the government in
dealing with the novel national security issue created in the prosecution of
Qaeda suspects since Sept. 11.

"A critical observer might say that this is an embarrassing change of course for
the government, while a sympathetic observer would say this is the government
showing flexibility in an evolving and complicated area of criminal law," Mr.
Fidell said. "The last thing the government wants to do is lose a case like this
because of some public relations problems."

A decision to abandon the Justice Department's case could create a predicament
for Mr. Moussaoui's court-appointed civilian lawyers, who would have to decide
whether they had any standing to continue to represent him and whether they
wanted to try to keep him from being transferred to military custody.

Criminal defense lawyers not associated with the case suggested that the court-
appointed defense team might try to press Judge Brinkema to block Mr.
Moussaoui's transfer until the federal courts decided the constitutionality of
the government's use of the "enemy combatant" designation for Qaeda figures.

The issue has been the subject of a variety of court challenges since Sept. 11,
most prominently in a case involving the Justice Department's efforts to deny a
lawyer to Yasser Esam Hamdi, an American-born Saudi who was captured on the
battlefield in Afghanistan and is being held incommunicado in a Navy brig in
Virginia.

Mr. Moussaoui has tried to fire the team of court-appointed lawyers assigned to
him by Judge Brinkema, but she has allowed the lawyers to continue to appear in
court and to file motions on his behalf.

One of the court-appointed lawyers, Frank W. Dunham Jr., the federal public
defender for Eastern Virginia, said in an interview that he might welcome a
decision by the Justice Department to dismiss the charges in Alexandria.

"Who can stop them?" Mr. Dunham said. "We would consider it a win." But he would
not comment when asked if he and the other lawyers would then try to prevent Mr.
Moussaoui from being transported to Cuba for a tribunal.

Officials said a recent court order from Judge Brinkema delaying Mr. Moussaoui's
trial by nearly six months, to next June, had taken some of the pressure off the
administration for a quick decision on whether to move him to a military
tribunal.

But they said the decision might still have to be made within several weeks,
given a series of more urgent deadlines for the government to respond to
requests from the defense for access to witnesses and documents.

The defense team is also weighing what to do about pleas by Mr. Moussaoui's
mother for a new psychiatric examination of her son. In an interview, his
mother, Aicha el-Wafi, said that she had become alarmed about her son's physical
and emotional condition after meeting with him last week in the jail.

"Every time I see him, he is deteriorating -- getting worse and worse," Mrs. el-
Wafi said, speaking through an interpreter. "He can't think rationally. He
doesn't talk rationally. He keeps saying, 'I am going to be out very soon.'"

Another of the court-appointed lawyers, Edward B. MacMahon Jr., said they were
considering Mrs. el-Wafi's request for court permission for a new psychiatric
examination. "A mother's instincts with respect to her son are something that we
should respect," Mr. MacMahon said.

* * *


November 11, 2002

RICE DEFENDS YEMEN MISSILE STRIKE

By The Associated Press

WASHINGTON (AP) -- President Bush has given U.S. officials "broad authority in a
variety of circumstances" to protect the country, such as the CIA missile strike
that killed a top al-Qaida suspect in Yemen, a senior White House aide said
Sunday.

"I can assure you that no constitutional questions are raised here. There are
authorities that the president can give to officials," said his national
security adviser, Condoleezza Rice.

"He's well within the balance of accepted practice and the letter of his
constitutional authority."

Qaed Salim Sinan al-Harethi, described by U.S. and Yemeni officials as al-
Qaida's chief operative in Yemen, was killed Tuesday along with five other men
after a CIA Predator drone aircraft fired a missile at their car.

Yemeni and U.S. officials said the dead also included a Yemeni- American man,
identified by Yemeni officials as Ahmed Hijazi. According to a U.S. official,
Hijazi was linked to alleged members of the al-Qaida cell in suburban Buffalo,
N.Y.

Rice would not say who authorized the strike.

"The president has given broad authority to U.S. officials in a variety of
circumstances to do what they need to do to protect the country," Rice said on
"Fox News Sunday."

"We're in a new kind of war, and we've made very clear that it is important that
this new kind of war be fought on different battlefields."

She said the United States has had "very good cooperation with the Yemeni on a
variety of things" and noted that Yemeni President Ali Abdullah Saleh has spoken
about that.

"We're fighting on a lot of different fronts. We have a lot of allies in this
war," Rice said.

The CIA strike also killed four other men described as al-Qaida operatives.

Al-Harethi was believed to have coordinated the October 2000 attack on the USS
Cole in Aden, Yemen, which killed 17 U.S. sailors.

The U.S. attack last week drew criticism from human rights groups. Amnesty
International sent letters of inquiry about the incident to U.S. and Yemeni
officials and a spokesman for the group in Washington said the attack violated
international treaties prohibiting execution without trial.

* * *


November 6, 2002

YEMEN KILLING BASED ON RULES SET OUT BY BUSH

By David Johnston and David E. Sanger

WASHINGTON, Nov. 5 -- The lethal missile strike that killed a suspected leader
of Al Qaeda in Yemen was carried out under broad authority that President Bush
has given the C.I.A. over the past year to pursue the terror network well beyond
the borders of Afghanistan, senior government officials said today.

The president was not asked to authorize the specific decision to fire the
missile that killed the suspected Qaeda leader, Qaed Salim Sinan al-Harethi, the
officials said. But Mr. Bush had been advised that the C.I.A was pursuing Mr.
Harethi.

Under the rules that Mr. Bush had approved, his personal approval for specific
operations was not required. He had delegated operational control over Predator
strikes against Al Qaeda to his military and intelligence team. Officials would
not identify the officials who did approve the strike.

The decision to approve the missile launch was made by "very senior officials"
below the level of the president who had been closely monitoring the
surveillance of Mr. Harethi and his associates, the officials said. They were
seeking an opportunity to kill Mr. Harethi in a setting that would minimize the
chance of unintentional casualties.

The officials said C.I.A. officials wanted to avoid a repeat of their failed
effort last year to use a Predator to kill Mullah Muhammad Omar, the Taliban
leader. The strike against him was aborted because of the possibility that
others in a crowded house might be killed.

The strike was authorized under the same set of classified presidential
findings, legal opinions and policy directives, some of which were prepared
after last year's attacks, that have set the rules for the administration's
campaign to prevent terror. These orders gave the C.I.A. wide powers to pursue
Qaeda terrorists anywhere in the world. But the Predator attack was the first
known use of lethal military force outside Afghanistan.

The missile strike represented a tougher phase of the campaign against terror
and moved the Bush administration away from the law enforcement-based tactics of
arrests and detentions of Qaeda suspects that it had employed outside
Afghanistan in the months since the fighting there ended.

Instead, the officials said, the missile strike demonstrated that the United
States was prepared to employ deadly force against individual suspects in
countries like Yemen, where Al Qaeda is believed to have regrouped in recent
months.

At the same time, the State Department's spokesman today reiterated American
opposition to "targeted killings" of Palestinian militants by Israeli forces.
The spokesman, Richard A. Boucher, rejected comparisons with Israel's practice
against Palestinian militants, saying circumstances were not comparable.

Senior Bush administration officials said the attacks reflected the broader
definition of the battlefield on which the campaign against Islamic terrorism
would be conducted.

Today, Mr. Bush's spokesman, Ari Fleischer, speaking to reporters aboard Air
Force One as the president returned to Washington, said the United States was
engaged in "a different kind of war with a different kind of battlefield."

He added, "The president has also made clear to the American people that one of
the best ways to fight the war on terror is political, diplomatic, military and
that sometimes the best defense is a good offense."

Paul D. Wolfowitz, the deputy defense secretary, said in an interview with CNN,
"We've just got to keep the pressure on everywhere we are able to, and we've got
to deny the sanctuaries everywhere we are able to, and we've got to put pressure
on every government that is giving these people support to get out of that
business."

The missile strike did not violate the longstanding ban on the assassination of
political leaders because none of the men were regarded as leaders under the
law, current and former officials said. Government officials have said since
Sept. 11 that the assassination ban does not apply to Al Qaeda.

(Page 2 of 2)

In Yemen, local officials said they are investigating the killings, and Interior
Minister Rashad Muhammad al-Alimi gave the cabinet a report about the blast.
Members of the cabinet -- who have faced criticism over Yemen's image as a haven
for Muslim militants -- urged Yemenis to cooperate with security forces in
tracking down terrorists.

But Yemeni officials were silent on the question of whether their forces were
involved in the operation. Yemeni officials have made clear in recent weeks,
however, that they were aware that American drones were active in their area.

The possible risks of the Bush administration's more aggressive approach were
immediately apparent. Today, the State Department announced that the American
Embassy in Yemen would be closed for a security review.

The Yemenis were killed on Sunday when a Hellfire air-to-ground missile launched
by a pilotless Predator aircraft struck the car in which six men were riding in
barren stretch of desert outside Sana, the capital. All the men were killed,
including the intended target, Mr. Harethi, a suspected senior Qaeda leader in
Yemen and a suspect in the bombing of the Navy destroyer Cole in October 2000.

It was unclear how the target was identified, but the Predator's video can
identify certain details such as the number of people in the car.

Although Mr. Harthi's name was not widely known publicly, intelligence and law
enforcement officials had been tracking his movements for months, one official
said.

The official would not describe the evidence linking Mr. Harthi to the Cole
attack, but said his involvement was a widely accepted within intelligence and
law enforcement circles.

Before the Yemen assault, American counterterrorism operations outside
Afghanistan had focused in large part on rounding up terrorist suspects,
imprisoning them and seeking to obtain information from them about Al Qaeda's
methods and targets. F.B.I. agents overseas and foreign military and security
services worked in concert, detaining several thousand suspects since the last
year's attacks at the World Trade Center and the Pentagon.

Although investigators wanted to question Mr. Harethi about the Cole bombing,
the C.I.A. did not seek input from or consult law enforcement officials prior to
the Yemeni operation, a senior law enforcement official said. But today law
enforcement officials said there were few complaints.

One senior law enforcement official said: "I'm ecstatic. We're at war, and we've
got to use the means at our disposal to protect the country. You've got to use
all your tools, and this is a kind of war which requires us to fight on multiple
fronts with all the weapons at our disposal."

* * *


November 5, 2002

U.S. IS REPORTED TO KILL AL QAEDA LEADER IN YEMEN

By James Risen With Judith Miller

WASHINGTON, Nov. 4 -- The Central Intelligence Agency, using a missile fired by
an unmanned Predator aircraft, killed a senior leader of Al Qaeda and five low-
level associates traveling by car in Yemen on Sunday, American officials said
today.

The officials said the missile strike killed Qaed Salim Sinan al- Harethi, also
known as Abu Ali, a man they described as the senior Qaeda operative in Yemen
and perhaps one of the top dozen or so Qaeda figures in the world.

A C.I.A. spokesman refused to comment today. Nor would White House officials
confirm the Predator strike in Yemen or say whether President Bush had
personally authorized it.

The attack was the first using an armed Predator against suspects outside of
Afghanistan, officials said, and it appeared to signal the beginning of a more
aggressive phase of the American effort against terrorism.

American officials said today that armed Predators had been flying over Yemen
for some time, ready to strike in case targets came into their sights. In the
attack on Sunday, the target was a car in northwestern Yemen. Its occupants in
addition to Mr. Harethi were five people described as low-level Qaeda
operatives. American officials said the Yemeni government had been kept informed
about the operation.

A Yemeni Interior Ministry official told the Saba news agency in Yemen that
traces of explosives and remnants of communications equipment had been found in
the wreckage of the car, which had been traveling in eastern Marib province.

Yemen has become a major focus of American counterterrorism operations in recent
months. American officials believe it to be a haven for a significant number of
Qaeda operatives, including many who fled Afghanistan last year. Al Qaeda has
initiated deadly attacks against Western targets there, including the October
2000 suicide bombing of the destroyer Cole, which killed 17 American sailors,
and a similar attack on a French oil tanker last month, in which one crew member
was killed.

Although officials said they were unsure if Mr. Harethi was directly involved in
the Cole bombing, his leadership role in Al Qaeda in Yemen made him an important
target of American efforts there.

Over the past year, the United States has worked closely with dozens of other
nations to detain or arrest thousands of suspects in an effort to disrupt Qaeda
operations. But the strike in Yemen suggests that the United States is now ready
to move beyond intelligence-sharing and law enforcement cooperation and instead
extend military action far beyond the Afghan battlefields.

The decision to use military force to attack Qaeda leaders in Yemen rather than
to try to arrest them fits in with a broader administration view that the world
is a battlefield in the campaign against terrorism, and that Qaeda operatives
should be treated as enemy combatants.

"We're at war with Al Qaeda," a senior Pentagon official said earlier this year.
"If we find an enemy combatant, then we should be able to use military forces to
take military action against them."

Missile-carrying Predators were first used in Afghanistan last year; one was
reportedly used to kill Muhammad Atef, Al Qaeda's chief of military operations,
during a raid near Kabul a year ago. Before the strike on Sunday, the last time
officials confirmed an attack by an armed Predator was in early May, when the
C.I.A. tried to kill an Afghan factional leader, Gulbuddin Hekmatyar, who had
vowed to topple the government of Hamid Karzai and attack American forces.

The strike follows extensive American efforts, dating back to the Cole attack,
to gain Yemeni help on counterterrorism matters. F.B.I. officials sent to Yemen
after the Cole bombing were initially frustrated by what they believed was a
lack of cooperation from Yemeni officials.

Although cooperation between the countries has increased in recent months,
American counterterrorism officials have expressed frustration with Yemen's
apparent inability to exert much control over its remote and largely lawless
border region with Saudi Arabia, which the Americans say serves as the country's
main sanctuary for Al Qaeda. For instance, a Yemeni operation last December to
interdict Qaeda operatives in the region led to a bloody and unsuccessful
confrontation.

The United States has kept up the pressure for Yemeni assistance even as the
American military presence in nearby countries has expanded, reflecting the
higher American priority on regional counterterrorism operations.

Across a narrow strait from Yemen, American military operations throughout the
Horn of Africa will soon be coordinated by a new task force to be based in
Djibouti, officials said today. The Pentagon has initial plans to increase its
force in Djibouti to about 1,200 troops, allowing them to conduct training
missions and prepare to attack Qaeda fighters believed to be hiding throughout
the region. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, has
described the Horn of Africa as "a fairly busy place in terms of the flow of
people and other instruments of war -- weapons, explosives, perhaps weapons of
mass destruction."

The region is one where "terrorists can gather and either do operational
planning or training," he said.

The growing military presence so close to Yemen may have sent a message to the
Yemeni government that the United States might act against terrorists inside its
borders with or without its cooperation, and so could have helped persuade the
Yemeni government to work with the Americans.

* * *

November 4, 2002

GENERAL TAKES CONTROL OF CUBA PRISON

By The Associated Press

SAN JUAN, Puerto Rico (AP) -- A general previously based in South Korea took
command Monday of the U.S. military's mission overseeing the detention and
interrogation of terrorism suspects at Guantanamo Bay.

U.S. Army Maj. Gen. Geoffrey Miller took over from Army Maj. Gen. Michael
Dunlavey, who was ending his tour at the base in Cuba, the Miami-based U.S.
Southern Command said.

Miller leads a task force overseeing the detention of about 625 detainees
suspected of links to Afghanistan's fallen Taliban regime or the al-Qaida
terrorist network.

The operation has been criticized by human rights groups because detainees are
held without charges and are not allowed access to lawyers. The captives began
arriving at Guantanamo in January.

A week ago, four detainees -- including three Afghans and a Pakistani -- were
released. Military officials said they no longer posed a threat.

Miller had been assistant chief of staff at the U.N. Command in Seoul, South
Korea.

Dunlavey was originally assigned to oversee interrogations, but in October took
over detention operations when the units were streamlined.

On his departure, Dunlavey received the Defense Superior Service Medal for
services to his country. He will return to his previous assignment as assistant
to the director at the National Security Agency in Washington, D.C.

----

On the Net:

Naval Base Guantanamo Bay: http://www.nsgtmo.navy.mil/

Joint Task Force GTMO: http://www.nsgtmo.navy.mil/JTF-160/index.htm/

* * *


October 30, 2002

'ENEMY COMBATANT' FIGHTS TO OBTAIN COUNSEL

By Benjamin Weiser

Lawyers for Jose Padilla, the man accused of plotting to explode a radioactive
bomb in the United States, argued to a federal judge in New York yesterday that
the government should not be allowed to deny his right to counsel "merely by
transferring his custody to another branch of the government."

In a filing in United States District Court in Manhattan, the lawyers also asked
the judge to order that they be allowed to meet with Mr. Padilla so they can
consult with him about his case.

Mr. Padilla, an American who was initially charged as a material witness, was
declared an enemy combatant by President Bush in June and placed in military
custody. Since then, he has been held in a Navy brig in South Carolina, where he
has been allowed no contact with his lawyers.

The government, meanwhile, argued in an earlier filing on Monday that Mr.
Padilla, who is also known as Abdullah al-Muhajir, has no right to counsel
because he is being detained solely as an enemy combatant in wartime. "His
detention as an enemy combatant is in no sense 'criminal,' and it has no penal
consequences whatsoever," the government said.

The further debate on Mr. Padilla's right to counsel came at the request of the
judge, Michael B. Mukasey, who is considering a petition filed on Mr. Padilla's
behalf seeking to test the legality of his detention.

The government has taken a similar stand against the right to counsel for the
other American designated an enemy combatant, Yasser Esam Hamdi, who was
captured on the battlefield in Afghanistan and is being held in solitary
confinement in Virginia.

But Mr. Padilla's case is different in that he was taken into custody in the
United States and had a lawyer, in the material witness case, before he was
moved into military custody.

The government argues in its brief that recognizing a right to counsel "would
jeopardize the two core purposes of detaining enemy combatants -- gathering
intelligence about the enemy, and preventing the detainee from aiding in any
further attacks against America." A lawyer could also become an unwitting
conduit for transmitting information that could damage national security, the
government said.

The government brief was submitted by the United States attorney in Manhattan,
James B. Comey, and Paul D. Clement, deputy solicitor general.

Both sides also made further submissions about whether the judge should read a
classified document that is said to lay out the case against Mr. Padilla. The
government has not given the document to Mr. Padilla's lawyers, but it has
released an unclassified version, which it says "is more than sufficient" to
establish that Mr. Padilla was properly designated as an enemy combatant. But,
the government says, the judge should be able to review the full set of facts.

Mr. Padilla's lawyers argued in their filing that Judge Mukasey should not
review the classified version, nor should he base a decision on either version
unless the lawyers are allowed to consult with Mr. Padilla and get his response.
"Jose Padilla should be granted the fundamental right to have his voice heard by
this court," they wrote.

* * *

October 30, 2002  Filed at 9:04 a.m. ET

KARZAI PLANS TO SEND TEAM TO CHECK ON GUANTANAMO

By Reuters

KABUL (Reuters) - Afghan President Hamid Karzai said Wednesday he plans to send
a team to the U.S. military prison at Guantanamo Bay in Cuba to check conditions
for dozens of Afghans held there on suspicion of al Qaeda links.

Karzai made the decision after meeting three Afghans freed from the
controversial prison after months in captivity, presidential spokesman Sayed
Fazl Akbar told Reuters.

The three included Haji Faiz Mohammad, a man who gave his age as 105, although a
prison identity tag showed his year of birth as 1931.

"Karzai was saddened to see that they really had imprisoned a man aged 105,"
Akbar told Reuters. "The three said they were innocent and the old man informed
him that there are other elderly people like him and innocent ones there too.

"Karzai said afterwards there was a need to send a team to verify who have been
held and seek freedom of people like this and other innocents. A team will go at
some stage."

Karzai, who was installed in power after the U.S. military helped drive out the
Taliban last year, ordered cash payments to be made the three ex-Guantanamo
prisoners to cover their transportation costs to their home villages.

The three were rounded up along with hundreds of Taliban and al Qaeda suspects
during the U.S. military campaign.

Haji Faiz Mohammad said it seemed all Muslims were suspects in the eyes of U.S.
forces. "You are al Qaeda too," he quipped to an Afghan journalist when asked
Wednesday if he was an al Qaeda sympathizer.

He told reporters Tuesday he had been arrested by U.S. forces at a mosque in the
central province of Uruzgan eight months ago, having left his remote village to
look for medicines.

A second man, Haji Mohammad Sediq, who claimed he was 90 but looked about 70,
said he was taken from his bed in a southeastern province days after the
overthrow of the Taliban.

The men claimed they had had no contact with their families during their
detention, but the International Committee for the Red Cross said all detainees
at Guantanamo had been given the chance to exchange written messages with their
families.

The Pentagon announced last week it was planning to free some of the hundreds of
detainees from 43 countries at Guantanamo who were no longer of intelligence
value or candidates for prosecution.

In addition to the three Afghans, one Pakistani was released and arrived back in
Islamabad Sunday. The U.S. military said it flew about 30 new detainees to Cuba
Monday, leaving 625 still imprisoned, but more releases were planned.

No charges have been filed against any of the detainees, although the Bush
administration has left open the possibility that some could face military
tribunals.

One Afghan citizen was repatriated in April after doctors determined he was
mentally ill.

Kamal Hossain, the U.N. special rapporteur on human rights in Afghanistan, said
in Kabul Tuesday the cases of all those held at Guantanamo needed to be looked
into and there should be inquiries into any injuries suffered there.

* * *


October 29, 2002

THE RIGHTS OF 'ENEMY COMBATANTS'

Editorial

Yasser Esam Hamdi, an American citizen captured in Afghanistan, has been held
since April in a naval brig, without formal charges or access to a lawyer. The
Bush administration told a federal appeals court in Virginia yesterday that as
an "enemy combatant," he is entitled to neither. The administration's position
would give the president sweeping powers to strip citizens of their rights and
hold them indefinitely. It is unconstitutional, and the appeals court should
reject it.

The government has put Mr. Hamdi in a legal purgatory. If he were charged with a
crime in a civilian court, as Zacarias Moussaoui, the alleged 20th hijacker,
was, he would have access to a lawyer and due process rights. If he were a
prisoner of war, the Geneva Convention would guarantee him other significant
rights. Instead, the administration has employed this third category - enemy
combatant - and says that it carries none of those protections.

The Bush administration argues that since Mr. Hamdi was captured on an Afghan
battlefield, there is no need for a judicially imposed fact-finding process. But
for due process to be served, Mr. Hamdi is entitled to just that. He may well
have been engaged in armed struggle against the United States, as the government
contends. But there could be other explanations for what he was doing in
Afghanistan, if in fact he was there at all. Mr. Hamdi is entitled to be
formally charged, to consult with a lawyer and to put forth a defense.

If the government prevails in Mr. Hamdi's case, it may end up using the enemy
combatant category far more broadly. The other person labeled an enemy
combatant, Jose Padilla, the so-called dirty bomb suspect, is an American
citizen who was arrested in the United States. It is not hard to imagine that if
the courts go along, the administration will use the enemy combatant label to
strip away the rights of many more Americans for acts committed here.

One of the most disturbing aspects of the administration's war on terror is that
no one seems to have thought through the constitutional issues. Why are Mr.
Moussaoui and Richard Reid, the accused shoe bomber - neither of whom is an
American citizen - being given civilian trials, with all the accompanying
rights, when Mr. Padilla is not? Of the two Americans accused of carrying arms
for the Taliban, why was John Walker Lindh charged in a civilian court, while
Mr. Hamdi is being held without charges?

The appeals court expressed concern yesterday about establishing a rule that
interferes unduly with the military - by, for example, requiring officers to
return from battle to testify at hearings. But the court should be able to craft
a decision that steers clear of such excesses, while ensuring that the
fundamental rights at stake in Mr. Hamdi's case, the right to due process and to
assistance of counsel, are not sacrificed.

* * *


October 29, 2002

APPEALS COURT AGAIN HEARS CASE OF AMERICAN HELD WITHOUT CHARGES OR COUNSEL

By Katharine Q. Seelye

RICHMOND, Oct. 28 -- In nearly two hours of oral arguments here, the government
said today that the Bush administration had the authority to hold a United
States citizen caught in the Afghan battle for an unlimited period without
charging him with anything or giving him access to a lawyer.

But the public defender, Frank W. Dunham Jr., said that finding such detentions
lawful would set a precedent that would impinge on the civil liberties of all
Americans.

The case is a potentially landmark clash between the powers of a president in
wartime and the constitutional protections of due process for American citizens.
It appears to be the first case in modern American law in which a citizen has
been detained without being charged and without being given access to a lawyer.
As such, it seems destined for the United States Supreme Court.

Today's arguments were made here before the United States Court of Appeals for
the Fourth Circuit, which has now heard them for the third time after sending
various aspects of them back to the lower district court.

After the two previous hearings, the appeals court largely sided with the
government, saying that in a time of war, the judiciary had little authority to
overrule a determination by the executive branch that someone caught on the
battlefield was an "enemy combatant."

But the appeals court has also said it would be premature to dismiss the case
outright, as the government has asked.

"In dismissing, we ourselves would be summarily embracing a sweeping proposition
-- namely that, with no meaningful judicial review, any American citizen alleged
to be an enemy combatant could be detained indefinitely without charges or
counsel on the government's say-so," Chief Judge J. Harvie Wilkinson III had
written for the court in July.

At the center of the case is Yaser Esam Hamdi, whom Mr. Dunham represents but
has never met or spoken with. Mr. Hamdi, 22, was born in Louisiana and reared in
Saudi Arabia. He joined a Taliban unit in July 2001 in Afghanistan, surrendered
to the Northern Alliance in November, and has been sitting incommunicado in the
Navy brig in Norfolk, Va., since April.

The narrow question before the court was whether a two-page, nine- paragraph
declaration by a Defense Department official, Michael Mobbs, provided a
sufficient basis for the government to hold Mr. Hamdi as an enemy combatant.

Paul D. Clement, deputy solicitor general, argued that the Mobbs declaration was
adequate. Mr. Clement said he wanted to assure the country that Mr. Hamdi was an
enemy combatant. But he opposed further fact-finding into why Mr. Hamdi was so
designated, saying that an order to the military to produce more material would
set a bad precedent.

Mr. Dunham argued that the declaration was inadequate. But more important, he
said, he should have access to Mr. Hamdi to see if he agreed with it. If Mr.
Hamdi did, then that would end the case, Mr. Dunham said. If Mr. Hamdi disputed
the declaration, it might be necessary to depose the military personnel who
captured Mr. Hamdi.

Judge Wilkinson said that questioning the military commanders about Mr. Hamdi's
capture would be extreme and disruptive. "The burdens on the military would be
considerable, to litigate the circumstances of a capture that took place half-
way around the world," the judge said.

Mr. Dunham said that any decision made on the battlefield was entitled to
deference, but, he added, "A year later, when the emergency is ended, there is
no need to give the same deference." He said that there was nothing in the Mobbs
declaration to suggest that asking Mr. Hamdi if he was an enemy combatant would
interfere with national security.

"We still don't know if he's an enemy combatant," Mr. Dunham said. "That's the
$64 question."

He added: "The precedent that the administration is setting has long-term
potential for incursions on our liberties."

The chief judge said he saw no way to resolve the question without calling
military commanders into court and taking them away from their battlefield
duties.

"Our freedoms don't come cheap," Mr. Dunham replied. "If you want to detain a
United States citizen, there will be some inconvenience."

At the conclusion of the arguments, the chief judge praised both lawyers for the
"able advocacy" of their positions.

"The American people have been beautifully served by the quality of advocacy,"
Mr. Wilkinson said before taking the unusual step of leading his two colleagues
down from the bench to shake hands with the battery of lawyers on both sides. He
gave no indication of when the court might rule.

* * *


October 23, 2002

SOME GUANTANAMO PRISONERS WILL BE FREED, RUMSFELD SAYS

By Katharine Q. Seelye

WASHINGTON, Oct. 22 -- Defense Secretary Donald H. Rumsfeld said today that a
small number of the nearly 600 prisoners being held in Guantanamo Bay, Cuba,
would be released to their home countries because they were no longer of
interest to the United States.

He did not say how many there were, what countries they were from or when they
would be released.

Mr. Rumsfeld, who earlier this year called the prisoners "the worst of the
worst," seemed to play down the significance of the release, which he disclosed
in response to a question.

"There are some people likely to come out the other end of the chute," he told
reporters casually.

Relatives of prisoners from Pakistan and Kuwait have maintained that their sons
or husbands are innocent and that they had been picked up in Afghanistan and
thrown into jail at Guantanamo Bay because they were in the wrong place at the
wrong time. Mr. Rumsfeld said he was unaware of the nationality of those being
released.

"I don't know that I even bothered to look at what the nationality of these
folks are," he said.

The United States is holding 598 men from 43 countries at Guantanamo Bay Naval
Base. Most were caught on the battlefield in Afghanistan after the air war began
there a year ago. The United States started sending them to Cuba in January.

Only two prisoners sent to Guantanamo have left. One is Yasser Hamdi, who was
discovered to have been born in the United States; he is now in the Navy brig in
Norfolk, Va. The other is an Afghan prisoner who received a diagnosis of
schizophrenia and returned to Afghanistan, where he is reportedly in a state
mental hospital.

Mr. Rumsfeld said earlier that the United States might hold the prisoners
indefinitely. But top Pentagon officials said as early as March that if some
prisoners were found to be of no value to the United States, they would let them
go.

Some lawyers involved in international legal issues greeted Mr. Rumsfeld's
announcement today as a positive sign.

David B. Rivkin Jr., an international legal expert and official in the Reagan
and first Bush administrations, said the release "shows how reasonable the
executive branch is, that once they assure themselves that certain individuals
can be released without jeopardizing our safety, they're being released, so it's
a good thing."

Lee Casey, a Justice Department official also in the Reagan and first Bush
administrations, said the release indicated that constructive conversations were
going on behind the scenes with allies.

Citing one theory -- that the prisoners being released are from Pakistan -- he
said, "There's probably been a conclusion that Pakistan will be able to be
responsible for these people and make some assurances that they aren't going
back to Al Qaeda."

He added, "And I suspect that in the future as they finish interrogating these
guys and conclude that some of them can be let go, it will make a great deal of
difference what country they're from and whether that country will take
responsibility for its nationals."

This is just what bothered others.

Michael Ratner, president of the Center for Constitutional Rights, said he was
pleased to hear of the release. But, he said, if a person's release was
contingent upon his being from a country allied with the United States, that
injected a subjective element into the process.

"What this shows is that countries with close relations with the United States
might be able to get their prisoners released," Mr. Ratner said.

"It demonstrates to me the absolute necessity for some kind of tribunal to
determine whether other people should remain in Guantanamo," he added. "It's
conceivable that the United States doesn't know who they've picked up because
they've refused to adhere to the Geneva Convention." The conventions require a
hearing to determine the status of prisoners.

Mr. Rumsfeld did not provide details of the arrangements, but he avoided saying
that the United States might have erred in detaining any of the prisoners in the
first place.

"If you don't want them for intelligence, and you don't want them for law
enforcement, you don't need to keep them off the street, then let's be rid of
them," he said.

President Bush announced last November that some of the prisoners might be
subject to military tribunals, and the Defense Department spent several months
drawing up rules for such tribunals. While officials have said that the
administration is in the process of selecting prosecutors and judges for such
proceedings, prisoners have yet to be designated for trial.

In March, Pentagon officials raised the possibility of indefinite detention of
the prisoners, saying they might not be released from United States custody even
if they were acquitted in a military tribunal. But the officials also allowed
for the possibility of release.

* * *


October 14, 2002

WAR CRIMES COURT

To the Editor:

As an outsider with great admiration for America, I am disappointed by attempts
to have Americans exempted from jurisdiction of the international criminal court
(news article, Oct. 9). If freedom is indivisible, surely justice should be as
well?

There are built-in safeguards to protect the innocent, so it looks as though it
is the guilty Washington is trying to protect -- or do you all really believe no
American could be guilty of war crimes?

Alison M. Bell
Glasgow, Oct. 9, 2002

* * *


October 14, 2002

RUMSFELD FAVORS FORCEFUL ACTIONS TO FOIL AN ATTACK

By Thom Shanker

[ cf. __CRISIS__\Petition\DoD\rumsfeld_guidelines_20021014.txt ]

WASHINGTON, Oct. 13 -- Defense Secretary Donald H. Rumsfeld, in a personal set
of guidelines for committing forces to combat, wrote that America's leaders must
quickly judge when diplomacy has failed, then "act forcefully, early, during the
precrisis period" to foil an attack on the nation.

If those actions fall short, America must be "willing and prepared to act
decisively to use the force necessary to prevail, plus some," he wrote.

Mr. Rumsfeld's memorandum, written in March 2001 but updated as recently as this
weekend, said the nation's leaders must never "dumb down" a mission to gain
support from the public, Congress, the United Nations or allies.

In particular, he wrote, leaders must avoid "promising not to do things (i.e.,
not to use ground forces, not to bomb below 20,000 feet, not to risk U.S. lives,
not to permit collateral damage, not to bomb during Ramadan, etc.)."

Such pledges simplify planning for a foe, he wrote, just as artificial deadlines
for American withdrawal allow an enemy to "simply wait us out."

The Rumsfeld guidelines both echo and refine military thinking set down in past
years by Caspar Weinberger, President Ronald Reagan's defense secretary, and by
Colin L. Powell, chairman of the Joint Chiefs of Staff for the first President
Bush and secretary of state for the second.

For example, Mr. Rumsfeld wrote that American lives should be risked only when a
clear national interest is at stake, when the mission is achievable, when all
required resources are committed for the duration of combat -- and only after
the nation's leadership has marshaled public support.

But the Rumsfeld guidelines can be read as diverging from eight years of Clinton
administration policy. During those years, the armed forces were assigned a
number of missions -- from Haiti to Somalia to Bosnia to Kosovo -- that critics,
often Republicans, said risked American lives for humanitarian assistance,
peacekeeping and democracy-building efforts that had less clear benefit for
American national security.

An early draft of the memo was obtained over the summer, but under strict ground
rules set by the person who provided the memo, it was meant for informational
purposes only and could not be published. Repeated requests for Mr. Rumsfeld to
discuss his thinking were made in the intervening months, and he agreed this
weekend to provide the current version of his guidelines.

The two-page memorandum said that before committing military forces, the nation
must consider how it might affect American interests around the world "if we
prevail, if we fail, or if we decide not to act."

"Just as the risks of taking action must be carefully considered, so, too, the
risk of inaction needs to be weighed," he wrote.

Shortly after being sworn in as defense secretary for President Bush, "I sat
down and I said, 'You better have a damn good reason if you're going to put
somebody's life at risk. What ought we be thinking about?' " Mr. Rumsfeld said
in an interview this weekend. "So I started writing."

Mr. Rumsfeld regularly reviews the memo, he said. "I pick it up and read it
every couple of months when something comes up." He said the memo shaped his
thinking for the war in Afghanistan and today is guiding his advice to Mr. Bush
as the administration ponders war with Iraq.

One of the memo's passages on public confidence rings loudly at a time when
President Bush is moving to use a vote in Congress supporting an attack on Iraq
as leverage to push for a tough United Nations resolution forcing President
Saddam Hussein to disarm.

"If public support is weak at the outset, U.S. leadership must be willing to
invest the political capital to marshal support to sustain the effort for
whatever period of time may be required," Mr. Rumsfeld wrote. "If there is a
risk of casualties, that fact should be acknowledged at the outset, rather than
allowing the public to believe an engagement can be executed antiseptically, on
the cheap, with few casualties."

A senior Defense Department official said that in releasing the memo, Mr.
Rumsfeld was responding at least in part to urgings from his civilian and
military advisers, who said the public should have insight into the thinking of
President Bush's principal adviser on national defense as the nation girds for
possible war with Iraq.

"This is how the senior civilian in the Department of Defense is thinking before
Pfc. Pace goes in harm's way," said Gen. Peter Pace, vice chairman of the Joint
Chiefs of Staff. "This document really makes you feel very, very comfortable and
very good that these are 'tick points' that he's using for those kinds of
decisions."

[Page 2 of 2]

The guidelines do not represent official policy that has passed through the
national security process, although Mr. Rumsfeld has shared the memo with a
small circle, including President Bush, Secretary of State Powell, Deputy
Defense Secretary Paul D. Wolfowitz, General Pace, and Gen. Richard B. Myers,
the chairman of the Joint Chiefs of Staff.

The memo is thought to be the first public restatement by a defense secretary of
guidelines for the use of force since the Reagan administration, when Mr.
Weinberger similarly defined when to use combat forces.

In a November 1984 speech, Mr. Weinberger said the American military should only
be sent into action when a vital national interest was at stake, when decisive
force was brought to bear in a wholehearted effort to win, and when support from
Congress and the public was reasonably assured.

At the time, that message was seen as a counterpoint to Secretary of State
George P. Shultz and his senior diplomats, who were said to argue that diplomacy
would suffer if the threat of military action could not be used for a far
broader range of issues that might not involve supreme national interest.

The doctrine was later restated by Secretary Powell when he was chairman of
Joint Chiefs of Staff. He argued that when a clear national interest had been
defined -- and if the objective could be achieved through combat -- then
overwhelming military force should be deployed.

* * *


October 13, 2002

The Need to Test Evidence

By JEFFREY ROSEN

WASHINGTON

In the wake of Sept. 11, circumstantial evidence is being widely used -- and
misused -- across America. The Federal Bureau of Investigation has put hundreds
of young, mostly Muslim men under dragnet surveillance in a search for Al Qaeda
operatives, resulting in a series if indictments in upstate New York, Seattle,
Detroit and, most recently, Portland, Ore. But might this aggressive use of
circumstantial evidence run the risk of mistaken identity? Consider the
following examples.

* Last week, a judge granted bail for one of the six American citizens of
Yemenite descent from Lackawanna, N.Y., accused of providing "material
assistance" to terrorists because they attended an Afghan training camp in
spring of 2001. One also went to a wedding in Bahrain on Sept. 10, 2001, and
sent an e-mail about an imminent "Big Meal" only the faithful would endure.
Though he says he was referring to the banquet, prosecutors say it is
circumstantial evidence of a plot.

* Federal prosecutors have announced that a business card found at the
Pennsylvania crash site of United Airlines Flight 93 had a handwritten address
in Hamburg that a key planner of the Sept. 11 attacks hadcalled. Zacarias
Moussaoui, accused of conspiring in the attacks, called the same number in the
weeks before Sept. 11. Prosecutors said the card is powerful circumstantial
evidence that ties Mr. Moussaoui to the hijackers; he says he never met them.

* Lawyers for Jose Padilla have challenged his detention as an enemy combatant.
Mr. Padilla, an American citizen, is being held indefinitely in a Navy brig. The
government says it has evidence he plotted to build a dirty bomb, but refuses to
reveal it. Mr. Padilla's lawyers say the charge is based on "circumstantial
allegations" and describe his weapons research as "limited to looking at an
unnamed Web site."

The evidence against most terrorism suspects arrested and prosecuted since Sept.
11 is circumstantial. Instead of relying on direct evidence, such as eyewitness
testimony or confessions, the government has relied on circumstantial evidence,
which requires a jury to draw inferences from one set of facts to another. On
that basis, jurors can infer that people are terrorists because their behavior
parallels that of terrorists, for example, or because religious cassettes they
own might be construed to endorse violence.

Critics have charged that this raises the constant danger of guilt by
association or arrests based on innocent information taken out of context. But
in fact, circumstantial evidence is used all the time in court, and judges and
legal scholars don't consider it more or less reliable than direct evidence.

The real threat to civil liberties after Sept. 11 doesn't come in cases like the
Lackawanna six, where the strength of the circumstantial evidence will be
examined in a trial. Rather, it comes where suspects are detained for months or
longer, waiting for the evidence against them to be tested in court. Consider
the hundreds of immigrants detained since Sept. 11. Some are held in legal limbo
because, say, they stood behind Mohamed Atta, the suspected leader, in line.

In the case of Mr. Padilla, the government has gone further, insisting that the
evidence is secret, and no judge or jury should ever have the chance to review
it. "In cases involving the detention of immigrants and enemy combatants," said
Stephen Gillers, a professor at New York University Law School, "the
government's position is: 'if the circumstantial evidence satisfies us, we can
lock this guy up as long as we want.' "

THE government's claim that Americans can be imprisoned indefinitely on its say
so, without the evidence being reviewed by a neutral third party, creates an
increased danger of mistaken identification based on innocent coincidences.
While it seems unlikely Mr. Padilla was browsing the Web for a research paper on
radiology, as long as the evidence remains secret, it is impossible to judge.

"Because of the desire to find guilty people after Sept. 11, the government may
be stretching the inferences," said Stephen A. Saltzburg, a professor at George
Washington University Law School. "Circumstantial evidence can be the most
powerful evidence we know, but the protection against flimsy evidence is usually
a trial, and many of these people will never get that."

[Page 2 of 2]

In the case against Mr. Moussaoui, the law permits the jury to infer that he
associated with the Sept. 11 conspirators. Prosecutors allege that Mr. Moussaoui
was part of the plot. Their case is built on circumstantial evidence: Mr.
Moussaoui received a $14,000 wire transfer from one of Mr. Atta's former
roommates, operated an Al Quaeda guest house and committed many other acts that
paralleled those of the hijackers. But he was in prison on Sept. 11, 2001 and
prosecutors have not been able to prove he had direct contact with any of the 19
hijackers. Mr. Moussaoui has confessed in court that he was a member of Al
Quaeda, but insists he had "no participation" in the attacks.

Circumstantial evidence can, in fact, be the most dependable. "In many cases,
circumstantial evidence is more reliable than eyewitness testimony," said Beth
Wilkinson, who successfully prosecuted Timothy J. McVeigh for the Oklahoma City
bombing. She said the jury was most swayed by circumstantial evidence, by a card
where McVeigh had scrawled, "TNT $5 more after May 1."

American law has long recognized the reliability of circumstantial evidence --
in fact, treason is the only crime that the Constitution requires be proved by
direct evidence alone. The difficulty of finding two reliable eyewitnesses may
be one reason the Bush administration decided not to file treason charges
against John Walker Lindh, who was sentenced Oct. 4, after pleading guilty to
carrying illegal arms for the Taliban.

The government had first charged Mr. Lindh with conspiracy to murder a C.I.A.
agent, but the circumstantial evidence was too weak. "In the context of
post-9/11," said James J. Brosnahan, a lawyer for Mr. Lindh, "the danger of
conspiracy counts based on circumstantial evidence is that you don't necessarily
have criminal activity as much as you have guilt by association."

"Circumstantial evidence works well in ordinary criminal cases," said Neal
Katyal of Georgetown University Law Center, whose article on the conspiracy
doctrine is scheduled to appear in the Yale Law Journal, "but it's more
dangerous when people are arrested on the basis of isolated pieces of
circumstantial evidence that can't be examined in court." The greatest danger
occurs when the government conducts dragnets by arresting hundreds of people
whose behavior parallels that of the terrorists and refuses to share the
evidence.

Almost all of the more than 1,200 noncitizens arrested based on circumstantial
evidence after Sept. 11 turned out not to be terrorists. For example, Hady
Hassan Omar was arrested on Sept. 12 and detained 73 days after he bought a one-
way airline ticket on the same Kinko's computer used by one hijacker. An
Egyptian student named Abdallah Higazy, who had been staying in a hotel near the
World Trade Center on Sept. 11, was put in solitary confinement after F.B.I.
agents accused him of using a ground-to-air radio to transmit information to the
terrorists. Only after another guest showed up to claim the radio were the
charges dropped.

LIKE profiling, circumstantial evidence needs adversarial testing because it
might be based on innocent coincidences," said William J. Stuntz, a professor at
Harvard Law School. Juries, it turns out, are good at separating convincing from
unconvincing circumstantial evidence. But in many cases after Sept. 11, they
will never get the chance.

Jeffrey Rosen teaches law at George Washington University and is the legal
affairs editor of The New Republic.

* * *

September 16, 2002

GUANTANAMO BAY FACES SENTENCE OF LIFE AS PERMANENT U.S. PRISON

By Katharine Q. Seelye

GUANTANAMO BAY NAVAL BASE, Cuba, Sept. 13 --  A year ago, this century-old
military outpost, the oldest United States base overseas and the only one in a
Communist country, was being mothballed by the Navy, having outlived its
usefulness as a refueling station and a temporary stop for fleeing refugees.

But in the last nine months, with Defense Secretary Donald H. Rumsfeld's
pronouncement that it was "the least worst place" to hold prisoners from the
Afghanistan war, Guantanamo has rumbled to life --  or as much to life as is
possible under a relentless Caribbean sun in a parched scrubland pockmarked by
cactus trees and populated by iguanas and land crabs.

Now, it shows every sign of becoming a permanent penal colony for the human
detritus of the campaign against terrorism. The first 20 prisoners arrived here
on Jan. 11. Today there are 598 from 43 countries. Construction is under way on
204 more cells, which is expected to bring the total to 816 in October, almost
half way to the planned 2,000.

There were 1,500 military personnel here in January; now there are 4,000. Those
overseeing the prison operation have started their own weekly newspaper. In
perhaps the strongest sign of permanence, the guards' huts are being outfitted
with indoor plumbing.

"We're talking years rather than months," said Capt. Robert A. Buehn Jr. of the
Navy, the base commander. He said that he had budgeted for the prison through
2005 but that he expected to include the prison in his 20- year plan as well. "I
would do it just to be conservative," he said. "You'd better plan for it."

But for all the planning, no one seems to know quite what to do with the
prisoners.

"They are the forgotten captives of the war," Scott L. Silliman, executive
director of the Center on Law, Ethics and National Security at Duke University
Law School, said in a telephone interview.

Once Congress was assured that the prisoners were being treated humanely, he
said, they lost what visibility they had. "They are outside our borders and not
in our court system," Mr. Silliman said.

Their significance today, he said, "stems not from who they are, how they are
being treated or how horrendous their conduct probably was, but what they
represent to international law."

The Bush administration has denied them the status of prisoners of war, instead
calling them enemy combatants, and is convinced that the law permits the
detention of such combatants until the end of hostilities to prevent their
return to the battlefield. The end of hostilities in this case could be defined
as the end of the campaign against terrorism, which could mean detention,
without charge and without access to lawyers, for years. This has appalled human
rights groups and even drew public criticism from the International Committee of
the Red Cross, which normally makes its complaints in private.

In a new report, the Lawyers Committee for Human Rights said the administration
had "been using the term 'unlawful combatant' --  a term not found in
international law --  as a kind of magic wand, waving it to avoid well-
established standards of U.S. and international law."

Critics say the United States is picking and choosing which elements of the
Geneva Convention to apply and which to ignore --  and that it is ignoring a big
one in not holding individual hearings to determine the status of each prisoner.
This, they say, is part of a larger pattern of the United States thumbing its
nose at the international community, as the Bush administration has done in
asserting a right to strike at Iraq unilaterally, in insisting that Americans
not be held accountable before the new International Criminal Court at The
Hague, and by spurning an international global-climate treaty.

This pattern could come into still sharper relief as the United States subjects
the prisoners here to military tribunals over the objections of several allies
that oppose the death penalty. The possibility of tribunals had seemed derailed
by both controversy and other priorities, but officials now say that planning
for them is back on track.

The officials said that the administration's legal experts, after a busy year of
distractions with the novel terrorist-related cases of John Walker Lindh,
Zacarias Moussaoui and Yasser Hamdi, were refocusing on tribunals for the
Guantanamo prisoners and that the trials would almost certainly be held here,
outside the jurisdiction of United States courts. (The Bush administration has
successfully argued in court that federal courts have no jurisdiction in
Guantanamo because it is under Cuban sovereignty; the United States leases the
Navy base from Cuba for $4,000 a year, although Fidel Castro refuses to cash the
checks because he disputes the legitimacy of the arrangement.)

Legal experts said the process of preparing for the tribunals would be so
painstaking that it might be several months before any began.

Ruth Wedgwood, who is an expert in international law at Yale Law School and
close to the Bush administration, said much time would probably be consumed with
finding the right people --  both to prosecute the government's cause and to be
prosecuted.

"You'd have to pick good people for prosecutor and judge, think through the
logistics of putting on trials, do the very, very difficult task of scrubbing
what evidence you have, deciding which are most compelling as criminal cases,
and think through what evidence you could make public, since you don't want to
have to close the proceedings and have an all-secret trial," she said.

Mr. Silliman said, however, that as more time goes by, he was skeptical that
such evidence could be produced, especially against the many prisoners here who
are believed to be foot soldiers for the terrorists and ignorant of any useful
intelligence. He predicted that international pressure would build on the United
States to release some of them to their native countries --  pressure that could
intensify as the United States tries to maintain its coalition in the campaign
against terrorism.

GUANTANAMO BAY FACES SENTENCE OF LIFE AS PERMANENT U.S. PRISON (PAGE 2 OF 2)

Delegations from many of those countries have visited Guantanamo, seeking to
establish that their citizens are being treated humanely and to negotiate for
their release. Officials here said some delegations also took part in the
interrogations of their citizens, a process that the House Permanent Select
Committee on Intelligence believes is not going so well. In its budget request
for next year, the panel said interrogation efforts in Guantanamo "have been
hampered by a lack of appropriate training, a dearth of language-skilled
personnel, and a lack of depth and breadth of analytic expertise."

Khalid al-Odah, the father of a prisoner from Kuwait, said in a telephone
interview that American officials told Kuwaiti officials who visited the base
that there was no evidence linking his son and a dozen other Kuwaiti prisoners
with crimes and that they would be at the top of the list of those to be
released. Mr. Odah's statements could not be confirmed with American officials
here. Families of other prisoners from other countries have made similar
assertions of innocence about their sons, but there has been no corroboration
from Americans.

Only two prisoners who have been brought to Guantanamo have left. One is Mr.
Hamdi, who was discovered to have been born in the United States; he is now in
the Navy brig in Norfolk, Va. The other was an Afghan prisoner who received a
diagnosis of schizophrenia and returned to Afghanistan, where he is reportedly
in a state mental hospital.

Mr. Odah and others said they had been given no timetable for any possible
release of the Kuwaitis or others, and as more time passes, they grow
increasingly concerned about the prisoners' legal limbo and its effect on their
psychological state.

Officials here say that the legal limbo is Topic A among the prisoners and that
it underlies the mounting mental health problems in the camp. Four prisoners
made serious efforts at killing themselves this summer, stringing up their
bedsheets in their cells and trying to hang themselves. At least 30 others made
less serious attempts, some using plastic utensils, others banging their heads
against the walls. Many are taking anti-depressants, and 80 prisoners are now in
solitary confinement. Only two prisoners are hospitalized now, both with
orthopedic problems, indicating that the more pressing issues are behavioral and
psychological.

That holds true for the guards as well, and their commanders are keenly aware
that duty here is stressful in itself. The base newspaper reminded readers this
week in a banner headline that "September is suicide prevention month," and
noted that suicide is the second-leading cause of death in the military after
accidents.

Capt. Albert J. Shimkus Jr. of the Navy, who runs the hospital here, said 57
prisoners were being treated for mental illnesses, including post-traumatic
stress disorder. He added that several prisoners have tried to hurt themselves
as a way of attracting attention. Some scratch themselves, he said, and one
"threatened to swallow their tongue, which is impossible, and yet he attracted
attention."

"We are beginning to understand our environment better," he said, noting that
the language barriers were still significant but that the mental health team,
which also attends to the guards, was becoming "more robust in anticipation of
interceding with their mental health needs." Captain Shimkus said that, with the
uncertainty over the prisoners' fates, mental health problems could be expected
to increase.

Even Mr. Rumsfeld has allowed for the possibility that some of these prisoners
might have been victims of circumstance, caught in the wrong place at the wrong
time. But without individual hearings to determine the prisoners' status,
without charges and trials, critics see Guantanamo as a synonym for human rights
violations. While there is no indication of physical torture, and the prisoners
are allowed to observe their religion, grow back their beards and have their
meals prepared according to their customs, they still lack the basic legal
rights that many countries, including the United States, have agreed are
fundamental even to warriors.

Captain Buehn rejected that characterization, saying he was proud of the
community that had evolved here. "I don't want the U.S. Naval Base, Guantanamo
Bay, to be viewed in a sense as anything unfair, brutal, human rights
violations," he said. "Certainly, that's not what's going on here."

Gen. Rick Baccus of the Army, who commands the detention center, took the
opportunity of a Sept. 11 memorial service to try to rebut the criticism. "While
the public debates the technicalities of how these people should be classified,"
he said, "we will continue to follow the traditions of humane treatment." He
added: "In other countries, these detainees would not be heard from again."

* * *


September 6, 2002

FATE OF CUBA DETAINEES UNCLEAR

By THE ASSOCIATED PRESS

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- When the men accused of links to
terrorism arrived in Cuba, some were forced to kneel, their hands and feet in
shackles and their eyes covered with blackened goggles.

Photographs of their arrival prompted U.S. allies to demand explanations -- and
British newspapers to speak of torture. A year after the Sept. 11 attacks,
criticism of the detainees' treatment has lessened, but questions are
increasingly being asked about what will happen to them.

In a report released Thursday, Amnesty International complained the prisoners
are in "legal limbo" and are routinely denied the right to see lawyers, both
serious breaches of their human rights.

At least four have attempted suicide at the prison camp in eastern Cuba. The
U.S. military says one tried to slash his wrists with a plastic razor and three
tried to hang themselves.

Others among the 598 prisoners mark time chatting through diamond-shaped holes
in their cell walls, praying in unison and sometimes joking with their American
guards.

They have no calendars or clocks to keep track of time. The United States has
not announced plans for trials of the detainees and is building more cells,
making room for more captives as it considers waging war in Iraq.

"This is a new kind of war," said Lt. Col. Dennis Fink, spokesman for a task
force in charge of interrogations. He said investigations of the detainees --
which are shrouded in secrecy -- will be conducted "for as long as it takes."

The U.S. military refuses to identify the captives, saying only that they come
from 38 countries and are linked to the al-Qaida terrorist network or the fallen
Taliban regime that ruled Afghanistan.

The men haven't been charged and aren't allowed lawyers. The families of some
have mounted legal challenges, but to no avail.

The detainees' letters to and from home -- censored by the military and
delivered by the International Committee of the Red Cross -- are their only link
to the outside world.

"He writes that he is comfortable, but he feels he has been wronged," said
Khaled al-Oda in Kuwait, describing letters from his son, 24-year-old Fawzi al-
Oda.

The Americans' silence is aggravating, he said. "They don't say how much longer
they will be detained -- two months, three, a year."

The U.S. government says the men could be tried by tribunals, returned home for
trial, released or remain in detention.

Most American politicians back the indefinite detention. But U.S. Representative
Alcee Hastings, a Florida Democrat, is critical.

"It's too Kafkaesque to have people living in limbo," said Hastings, who in
February toured Camp X-ray where the detainees were initially held. "Nobody has
any sympathy for terrorists. But all of us have a responsibility to exercise
ourselves in a way that gives America the high moral ground."

The prisoners have been moved from Camp X-ray's chain-link cells to a permanent
prison, Camp Delta, where solid walls obscure journalists' view. Weeds are
rising in the deserted camp, which some human rights activists said resembled
rows of animal cages.

After the military flew one detainee, Yaser Esam Hamdi, to a Virginia jail in
April upon confirming he was a U.S. citizen born in Louisiana, some critics
complained the United States had a double- standard -- to the disadvantage of
the foreign-born detainees.

Soldiers who guard detainees say desperation and loneliness are common. Thirty-
seven prisoners are being treated or monitored for psychiatric problems. Some
are on antidepressants or anti- psychotic drugs.

Kuwaiti detainee Abdulaziz Sayer Owain al-Shammari said in a letter in March
that he was refusing food and water to demand freedom, a court hearing, or "to
die as I cannot stand life in this place."

Each man is led to an enclosure twice a week for 15 minutes of exercise. Some
run in circles. The military says inmates have gained 14 pounds on average.

The Muslim call to prayer wafts from loudspeakers five times a day. Meanwhile,
five Muslim inmates have converted to Christianity.

"They just happened to need someone to talk to and saw me walking by," said Maj.
Mike Merrill, a Protestant chaplain.

Sometimes the men yell at guards and spit or throw water at them. Other times,
they crack jokes.

Sgt. Ylaine Harris, 25, of Clinton, Mississippi, recalled one man who grinned as
he told her that he would like a Pepsi and a pizza.

"I just laughed," she said.

Sgt. 1st Class Wes Griffith, 32, of Kansas City, Mo., said the inmates seem to
like American music and sometimes sing to the guards.

"I've heard Eminem,"he said. "Britney Spears comes out a lot. I've heard some
Led Zeppelin, Van Halen."

The 204 additional cells being built exceed the 50 or so detainees held by U.S.
forces in Afghanistan.

Lt. Col. Fink, a former investigator for the New York Fire Department who knew
victims of the World Trade Center attack, said memories of the attacks remind
investigators of their aim in the time- consuming interrogations.

"It's a long process, but it is producing results," he said. "We're trying to
prevent another 9-11."

* * *


August 21, 2002

JUDGE OKs U.S. APPEAL OVER PRISONER

By The Associated Press

NORFOLK, Va. (AP) -- A judge decided Wednesday that the government may appeal
his demand for more evidence to explain why it is holding a U.S.-born detainee
captured in Afghanistan without charging him or giving him access to a lawyer.

The issue of whether the government has already provided enough information in
the case of Yaser Esam Hamdi involves a "controlling question of law" with
substantial room for a difference of opinion, U.S. District Judge Robert Doumar
wrote in his order.

The government contends it can indefinitely hold Hamdi, who was born in
Louisiana and later moved to Saudi Arabia with his Saudi parents, because he is
an enemy combatant. Federal public defender Frank Dunham Jr. has been trying to
meet with Hamdi and win his release from the brig at the Norfolk Naval Station.

The judge had ordered the government by Monday to turn over more evidence for
him to review in private, including statements Hamdi made to his military
interrogators after his captured him late last year.

Doumar postponed that deadline Wednesday. He said it had become obvious the
government is prepared to defy his order and "thereby create a confrontation
between the executive and judicial branches of our government." He said he hoped
an affirmation by the appeals court would give the government pause.

The only evidence the government has provided so far is a two- page declaration
by a Pentagon official, who wrote that Hamdi told interrogators he went to
Afghanistan to train with and, if necessary, fight for the Taliban regime.

Government lawyers have said the documents Doumar wants include sensitive
national security information.

* * *


August 20, 2002

U.S. SEEKS APPEAL IN DETAINEE CASE

By The Associated Press

NORFOLK, Va. (AP) -- A federal judge on Tuesday gave the government more time to
comply with his demand for more evidence to explain why it is holding a U.S.-
born man captured in Afghanistan.

The government contends it can hold Yaser Esam Hamdi indefinitely without
charging him or letting him see a lawyer because he is an enemy combatant.
Federal public defender Frank Dunham Jr. has been seeking to meet with Hamdi and
win his release.

U.S. District Judge Robert G. Doumar extended Wednesday's deadline for more
evidence until noon Monday as he considers the government's request to appeal
his order.

Hamdi, 21, was born in Louisiana and later moved to Saudi Arabia with his Saudi
parents. He has been held in the Norfolk Naval Station brig since April 5.

On Friday, Doumar ordered the government to give him evidence to review in
private, including all statements Hamdi made to his military interrogators, the
names of his interrogators and any notes they took during interviews with him,
and statements made by the forces that captured him late last year.

Government lawyers have fought the order, saying it "presents a controlling
question of law" over the military detention of enemy combatants. They also say
the documents Doumar wants include sensitive national security information.

If the judge says the government can appeal his demand for more evidence, the
case will go before the 4th U.S. Circuit Court of Appeals.

The appeals court previously held that if Hamdi is an enemy combatant, his
detention is lawful. The court had ordered Doumar to consider whether the
evidence the government already gave him was sufficient, saying that courts owe
great deference to military designations of enemy combatants in war time.

That evidence was a two-page declaration by a Pentagon official who wrote that
Hamdi told U.S. military interrogators he went to Afghanistan last summer to
train with and, if necessary, fight for the Taliban and that he laid down an
assault rifle when he surrendered.

* * *


August 17, 2002

GOVERNMENT IS TOLD TO JUSTIFY JAILING OF CAPTURED AMERICAN

By The New York Times

NORFOLK, Va., Aug. 16 -- A federal judge ordered United States attorneys today
to turn over documents supporting their argument that an American-born man
caught on an Afghan battlefield should remain jailed without charges and access
to a lawyer.

In a rebuke to prosecutors, the judge, Robert G. Doumar of Federal District
Court, told the government to submit all statements by the prisoner, Yaser Esam
Hamdi, 21, who was born in Louisiana and reared in Saudi Arabia. The government
has designated Mr. Hamdi an "unlawful enemy combatant" who can be denied legal
rights and representation.

The judge also demanded statements by Mr. Hamdi's captors, a detailed chronology
of his capture and detention beginning with his surrender to the Northern
Alliance in Afghanistan late last year, the criteria used to determine that he
was an unlawful enemy combatant, and the names and addresses of the people who
made the determination.

Judge Doumar said he would seal the documents and review them privately.

"This case appears to be the first in American jurisprudence where an American
citizen has been held incommunicado and subjected to an indefinite detention in
the continental United States without charges, without any findings by a
military tribunal, and without access to a lawyer," Judge Doumar wrote.

The ruling was issued three days after a hearing in which the judge repeatedly
accused the government's lawyer of dodging his direct questions, and questioned
the fairness and legality of the government's argument.

Judge Doumar also ordered the government last month to turn over many of those
documents, but the government refused, citing national security. Government
lawyers instead produced a two-page statement from Michael H. Mobbs, identified
as "special adviser" to the undersecretary of defense for policy. The statement
said Mr. Hamdi had a rifle when he surrendered to the Northern Alliance last
year.

But Judge Doumar wrote in his ruling today that the statement was inadequate and
raised more questions than it answered.

* * *

August 13, 2002

JUDGE QUESTIONS DETENTION OF AMERICAN IN WAR CASE

By Katharine Q. Seelye

NORFOLK, Va., Aug. 13 -- The government's decision to hold war captives
indefinitely without charges, without bail and without access to lawyers was on
trial here today in a squat concrete courthouse.

The case is that of Yaser Esam Hamdi, 21, born in Baton Rouge, La.; raised in
Saudi Arabia; and seized on the Afghan battlefield before being sent to
Guantanamo Bay, Cuba. He was transferred to the Navy brig here on April 5, after
officials had confirmed that he is an American.

The government has argued, and it argued again here today, that in this
unconventional war on terrorism Mr. Hamdi is an enemy combatant. As such, the
government says, even though he is a citizen, he has no right to a lawyer. In
fact, enemy combatants, as the government defines them, have none of the rights
afforded ordinary criminal defendants or even foreigners who might face military
tribunals.

The judge, Robert G. Doumar of Federal District Court, had little patience with
the government's position. In a display of judicial authority over the lawyers
in his courtroom, he verbally cuffed the government lawyers, rarely giving them
a break.

Judge Doumar bombarded an assistant to the solicitor general, Gregory G. Garre,
with questions and, quickly finding that Mr. Garre would not be forthcoming,
barely waited for a reply.

"So, the Constitution doesn't apply to Mr. Hamdi?" the judge snapped.

Mr. Garre studiously avoided answering yes or no, which frustrated the judge and
prompted him to pound the lawyer with more questions. So exasperated with Mr.
Garre's lack of responses, the judge blurted out, "Why am I here?"

To that question, Mr. Garre tried an answer. He said that the courts "have a
role" in determining what to do with captives, but that it was limited, a role
that belongs more fully to the president.

The case appears to be the first in modern American jurisprudence in which an
American citizen has been indefinitely detained without charges and without
access to a lawyer.

As such, it is rapidly becoming the test case for whether the courts and,
eventually, the Supreme Court will sanction such detentions. The answer could
well determine whether the United States continues to detain additional people
in that way and could guide how the country goes about conducting the war on
terrorism.

Michael Greenberger, a counterterrorism expert in the Justice Department under
President Bill Clinton who is director of the Center for Health and Homeland
Security at the University of Maryland, said the government had been embarrassed
by the open court cases of John Walker Lindh and Zacarias Moussaoui and was
looking for a precedent-setting case under which it could hold captives without
lawyers' interference.

In a report critical of the government's posture in Mr. Hamdi's case, the
American Bar Association warned that it could lead to the indefinite detentions
of other Americans, leaving detainees with "fewer rights and protections than
those who have been charged with serious criminal offenses."

"This is the new way to fight terrorism," said Frank Dunham Jr., the public
defender appointed to represent Mr. Hamdi, although he has never met or talked
with him. "There is no other case where a person has been denied access to his
counsel. This could set a precedent for anyone being held on executive say-so."

The Hamdi case has bounced around in the Fourth Judicial Circuit for several
months. Although the appeals court has sided with the government, Judge Doumar
retains some hold over the case and has been highly critical of the government,
as he was today.

The technical reason for the two hours of oral arguments was to determine the
value of a two-page statement from Michael H. Mobbs, identified as a special
adviser to the under secretary of defense for policy. The statement, "the Mobbs
declaration," was the basis for determining that Mr. Hamdi was an enemy
combatant. Judge Doumar, who is to decide whether the statement provided a
sufficient explanation, said he would announce his decision in a few days.

But from the bench he made very clear that he found the statement lacking in
nearly every respect. It had little detail specifying what exactly Mr. Hamdi had
done. It said that Mr. Hamdi was captured during hostilities but did not say
what he was doing. It said Mr. Hamdi "was determined by the U.S. military
screening team to meet the criteria for enemy combatants," but did not say what
the criteria were, who was on the team and why it reached that conclusion.

The judge also complained that the statement never explained why Mr. Hamdi had
been moved here.

"I'm challenging everything in the Mobbs declaration," he said. "If you think I
don't understand the utilization of words, you are sadly mistaken."

Judge Doumar said Mr. Hamdi was in solitary confinement in a windowless room.
Mr. Garre disputed that but said Mr. Hamdi was the sole captive in the brig. Mr.
Garre also said Mr. Hamdi met regularly with the brig commander and a chaplain.

"He just can't meet with a lawyer," the judge shot back.

Mr. Garre said the president had determined that the prisoners were enemy
combatants because they did not qualify for prisoner-of-war status under the
Geneva Convention. The judge said that military regulations required that a
competent tribunal screen prisoners to determine their status and that Mr. Hamdi
had no such screening.

"I have no desire to have an enemy combatant get out," the judge said. "But due
process requires something other than a declaration by someone named Mobbs that
he should be held incommunicado. Isn't that what we're fighting for?"

* * *


August 8, 2002

JUDGE SUSPENDS PROCEEDINGS IN STANDOFF ON WAR PRISONER

By Katharine Q. Seelye

WASHINGTON, Aug. 7 -- In a standoff over the constitutional rights of prisoners
captured during the war in Afghanistan, a federal judge in Virginia took the
rare action today of suspending all proceedings in a case in which the
government has classified a prisoner as an "enemy combatant" with almost no
legal protections.

The judge, Robert G. Doumar, of Federal District Court in Norfolk, Va., canceled
a hearing scheduled for Thursday in which the government was to explain why it
had classified Yasser Esam Hamdi, a prisoner who was born in Louisiana and
raised in Saudi Arabia, as an enemy combatant. The government says the
classification denies a person the rights afforded to either a prisoner of war
or someone indicted in a crime.

The judge's action came after the Justice Department refused to hand over by
noon on Tuesday documents justifying the government's labeling of Mr. Hamdi as
an enemy combatant.

The Justice Department told the judge that his order was premature and
conflicted with a stay of further proceedings in the case that the appeals court
had imposed in June.

The Justice Department has also raised questions about Judge Doumar's
jurisdiction in the case, and some legal analysts said today that the judge
appeared to be allowing that matter to be resolved by the appeals court before
pressing ahead for a hearing on the merits.

Judge Doumar has suggested for months that Mr. Hamdi had certain legal rights as
an American citizen. But government prosecutors have consistently rejected this
notion, arguing that Mr. Hamdi was an enemy combatant and as such had no right
to a lawyer and did not need to be charged with any specific crime while he was
held in the brig at the Norfolk Naval Station.

Moreover, the government has argued that the executive branch has the sole
authority to make such determinations in a time of war and that under the
separation of powers clause of the Constitution the judiciary has little room to
overrule decisions by the commander in chief.

The Justice Department had challenged Judge Doumar's order for the documents,
saying it was inappropriate and that the material he requested was highly
sensitive. With the stage set for a confrontation between the parties on
Thursday in Norfolk, the judge did not respond to that challenge.

But in a terse order today, the judge canceled that hearing. He cited a dispute
between Mr. Hamdi and the government over whether the case could proceed in
light of a government-requested stay that had been issued earlier by the United
States Court of Appeals for the Fourth Circuit, in Richmond, Va.

Justice Department officials would not comment on today's action.

Frank W. Dunham Jr., the public defender appointed to represent Mr. Hamdi, said
he thought the judge's order made sense because the issue of whether the stay
remained in effect had not been resolved.

"Once he realized that both sides thought the stay was in effect, he needed to
pull back," Mr. Dunham said. "It's a confusing procedural situation."

Outside legal experts following the case were mystified by the judge's action.

Elisa Massimino, director of the Washington office of the Lawyers Committee for
Human Rights, speculated that he might be trying to force the appeals court,
which has ruled twice in favor of the government, to resolve the issue of a stay
in order to clear the decks for arguments over the merits of the case.

The judge had asked for copies of all statements made by Mr. Hamdi, including
statements in interviews conducted solely for intelligence purposes, the names
and addresses of anyone who had interrogated him, copies of any statements made
by the Northern Alliance forces about him, a chronology of his whereabouts while
under military control. The government said the request was intrusive and
unnecessary.

Mr. Dunham said that in withholding this information, the government "did what
any litigant would do who is in a posture like that and doesn't want to produce
documents." But, he said, "I would like at some point to get to the merits of
the case instead of this procedural haggling."

* * *


August 8, 2002

Editorial

UNLIMITED PRESIDENTIAL POWERS

The Justice Department all but told a federal judge this week to take his
legitimate concerns about civil liberties and stuff them in the garbage pail.
The Bush administration seems to believe, on no good legal authority, that if it
calls citizens combatants in the war on terrorism, it can imprison them
indefinitely and deprive them of lawyers. It took this misguided position to a
ludicrous extreme on Tuesday, insisting that the federal courts could not review
its determinations.

This defiance of the courts repudiates two centuries of constitutional law and
undermines the very freedoms that President Bush says he is defending in the
struggle against terrorism. The courts must firmly reject the White House's
assertion of unchecked powers.

The administration's autocratic approach is unfolding in the case of Yasser Esam
Hamdi. Mr. Hamdi, who was born in Baton Rouge, La., to Saudi parents, was
captured by the Northern Alliance while fighting with the Taliban in
Afghanistan. Mr. Hamdi is being held in a Navy brig in Norfolk, Va., without
having been charged with any crime and has been denied permission to see a
lawyer. Judge Robert Doumar of the federal district court in Norfolk asked
prosecutors to submit documents, including interview notes, so he could assess
the claim that Mr. Hamdi is an enemy combatant. On Tuesday the Justice
Department refused to hand over the documents, saying the courts had no
jurisdiction in the matter.

The Bush administration has framed the dispute as being over the separation of
powers and the right of the executive branch to oversee the waging of war. The
courts have, in fact, given the political branches considerable leeway where
wars are concerned. But declaring American citizens to be enemy combatants, and
therefore not entitled to basic constitutional protections, is a clear matter of
domestic civil liberties. The courts have an obligation to play an active role
in reviewing these determinations.

In the case of Mr. Hamdi, the evidence submitted by prosecutors is thin. The
government is relying on a two-page affidavit from a Defense Department adviser
that simply gives a brief outline of Mr. Hamdi's alleged actions and declares
him a combatant. Given the importance of the rights at stake, Judge Doumar was
correct to ask prosecutors to hand over supporting materials so he can satisfy
himself that the right decision was made.

Judge Doumar acted at the behest of the Fourth Circuit Court of Appeals in
Richmond, Va., which advised him that he needed to adduce more facts and hear
more arguments before he could order the government to let Mr. Hamdi consult
with a lawyer. Though the three-judge panel that issued the ruling was
deferential to the administration, Chief Judge J. Harvie Wilkinson 3rd, a
conservative stalwart, warned that in the absence of judicial review, "any
American citizen alleged to be an enemy combatant could be detained indefinitely
without charges or counsel."

The Bush administration seems to be using the Hamdi case to establish the
principle that it has the exclusive power to decide who is an enemy combatant.
If the administration's position prevails, we can expect to see many more cases
like it. The government will be free to seize anyone it wants simply by saying
the magic words "enemy combatant," and the courts will be powerless to release
such people from prison, or even provide them with lawyers.

This was not what the founders had in mind. They established a system of checks
and balances so no one branch of government would have unrestrained power. And
the Supreme Court has made clear, in case after case, that the courts have just
the sort of judicial review power that Judge Doumar has invoked. The parties in
the Hamdi case will soon return to court. If the government has not changed its
mind, Judge Doumar should insist that it comply with his well-reasoned order.

* * *


August 4, 2002

AFTER SEPT. 11, A LEGAL BATTLE OVER LIMITS OF CIVIL LIBERTY

By The New York Times

(This article was reported and written by Adam Liptak, Neil A. Lewis and
Benjamin Weiser.)

In the fearful aftermath of Sept. 11, Attorney General John Ashcroft vowed to
use the full might of the federal government and "every available statute" to
hunt down and punish "the terrorists among us."

The roundup that followed the attacks, conducted with wartime urgency and
uncommon secrecy, led to the detentions of more than 1,200 people suspected of
violating immigration laws, being material witnesses to terrorism or fighting
for the enemy.

The government's effort has produced few if any law enforcement coups. Most of
the detainees have since been released or deported, with fewer than 200 still
being held.

But it has provoked a sprawling legal battle, now being waged in federal
courthouses around the country, that experts say has begun to redefine the
delicate balance between individual liberties and national security.

The main combatants are the attorney general and federal prosecutors on one side
and a network of public defenders, immigration and criminal defense lawyers,
civil libertarians and some constitutional scholars on the other, with federal
judges in between.

The government's record has so far been decidedly mixed. As it has pushed civil
liberties protections to their limits, the courts, particularly at the trial
level, have pushed back, stopping well short of endorsing Mr. Ashcroft's tactics
or the rationales he has offered to justify them. Federal judges have, however,
allowed the government to hold two American citizens without charges in military
brigs, indefinitely, incommunicado and without a road map for how they might
even challenge their detentions.

In the nation's history, the greatest battles over the reach of government power
have occurred against the backdrop of wartime. Some scholars say the current
restrictions on civil liberties are relatively minor by historical standards and
in light of the risks the nation faces.

The current struggle centers on three sets of issues. People held simply for
immigration violations have objected to new rules requiring that their cases be
heard in secret, and they have leveraged those challenges into an attack on what
they call unconstitutional preventive detentions.

People brought in and jailed as material witnesses, those thought to have
information about terrorist plots, have argued that they should not be held to
give testimony in grand jury investigations.

Finally, Yasser Esam Hamdi and Jose Padilla, the two Americans labeled "enemy
combatants" for what the government contends is more direct involvement with
terrorist groups, are seeking rights once thought to be fundamental to American
citizens, like a lawyer's representation and a chance to challenge their
detentions before a civilian judge.

So far, federal judges in Newark and Detroit have ordered secret deportation
proceedings opened to public scrutiny, and on Friday a federal district judge in
Washington ordered that the identities of most of the detainees be made public
under the Freedom of Information Act.

"Secret arrests," Judge Gladys Kessler wrote in the decision on Friday, "are a
concept odious to a democratic society."

A senior Justice Department official said the detentions had been lawful and
effective. He said it was hard to "prove a negative" and cite specific terrorist
acts that had been disrupted. But he said that department officials believed
that the detentions had "incapacitated and disrupted some ongoing terrorist
plans."

Two federal judges in New York have differed sharply on whether the government
may jail material witnesses while they wait to testify in grand jury
investigations. In Virginia, a federal judge ordered the government to allow Mr.
Hamdi to consult a lawyer.

"I look at the federal district court judges and just cheer them on, because
they are doing exactly what an independent judiciary should be doing," said Jane
E. Kirtley, a professor at the University of Minnesota and former executive
director for the Reporters Committee for Freedom of the Press. "It's not hostile
or adversarial; it's simply skeptical."

These lower-court decisions have for the most part not yet been tested on
appeal, and there is reason to think that appeals courts and the Supreme Court
will prove more sympathetic to the government's tactics and arguments.

The federal appeals court in Richmond, Va., for instance, reversed the decision
to allow Mr. Hamdi to talk to a lawyer and ordered the lower court judge to
consider additional evidence and arguments.

But even the appeals court seemed torn, and it rejected the government's
sweeping argument that the courts have no role in reviewing the government's
designation of an American citizen as an enemy combatant.

The detention issues also carry an emotional punch. Many of the Arabs and
Muslims caught in the government dragnet were cabdrivers, construction workers
or other types of laborers, and some spent up to seven months in jail before
being cleared of terrorism ties and deported or released.

Last month, at a conference held by a federal appeals court, Warren Christopher,
the secretary of state in the Clinton administration, snapped at Viet Dinh, an
assistant attorney general under President Bush, saying that the
administration's refusal to identify the people it had detained reminded him of
the "disappeareds" in Argentina.

"I'll never forget going to Argentina and seeing the mothers marching in the
streets asking for the names of those being held by the government," Mr.
Christopher said. "We must be very careful in this country about taking people
into custody without revealing their names."

Mr. Dinh, who came to the United States as a refugee from Vietnam, recalled his
family's anguish when his father was taken away in 1975 for "re-education." In
contrast, he said, those detained by the United States were not being secretly
held but were allowed to go to the press and seek lawyers.

"These are not incognito detentions," he said. "The only thing we will not do is
provide a road map for the investigations."

AFTER SEPT. 11, A LEGAL BATTLE OVER LIMITS OF CIVIL LIBERTY

(PAGE 2 OF 3)

According to the Justice Department, 752 of the more than 1,200 people detained
since Sept. 11 were held on immigration charges. Officials said recently that 81
remained in detention. Court papers indicate there were about two dozen material
witnesses, while most of the other detainees were held on various state and
federal criminal charges.

President Bush also has announced plans to try suspected foreign terrorists
before military tribunals, though no such charges have been brought yet.

Last month, William G. Young, the federal judge presiding in Boston over the
criminal case against Richard C. Reid, a British citizen accused of trying to
detonate a bomb in his shoe on a trans-Atlantic flight, noted that the very
establishment of those tribunals "has the effect of diminishing the American
jury, once the central feature of American justice."

Judge Young, who was appointed by President Ronald Reagan, added: "This is the
most profound shift in our legal institutions in my lifetime and -- most
remarkable of all -- it has taken place without engaging any broad public
interest whatsoever."

Jack Goldsmith and Cass R. Sunstein, professors at the University of Chicago Law
School, have written that the Bush administration's policies are a minimal
challenge to civil liberties especially compared with changes during the times
of Abraham Lincoln and Franklin D. Roosevelt. What has changed, they say, is a
greater sensitivity to civil liberties and a vast increase in mistrust of
government.

The Secrecy

U.S. Says Hearings Are Not Trials

Ten days after last September's attacks, Michael J. Creppy, the nation's chief
immigration judge, quietly issued sweeping instructions to hundreds of judges
for what would turn out to be more than 600 "special interest" immigration
cases.

"Each of these cases is to be heard separately from all other cases on the
docket," Judge Creppy wrote. "The courtroom must be closed for these cases -- no
visitors, no family, and no press."

"This restriction," he continued, "includes confirming or denying whether such a
case is on the docket."

The government has never formally explained how it decided which visa violators
would be singled out for this extraordinary process, and it has insisted that
the designations could not be reviewed by the courts.

But as it turns out, most of these cases involved Arab and Muslim men who were
detained in fairly haphazard ways, for example at traffic stops or through tips
from suspicious neighbors. Law enforcement officials have acknowledged that only
a few of these detainees had any significant information about possible
terrorists.

As the ruling on Friday in Washington suggests, a series of legal challenges to
this secrecy has resulted in striking legal setbacks for the administration.
Several courts have ordered the proceedings opened and have voiced considerable
skepticism about the government's justifications for its detention policies
generally.

Lee Gelernt, a lawyer at the American Civil Liberties Union, said the secrecy of
the proceedings exacerbated the hardships faced by people who disappeared from
sight on violations that in the past would not have resulted in incarceration.

"Preventive detention," he said, "is such a radical departure from
constitutional traditions that we certainly shouldn't be undertaking it solely
on the Justice Department's say-so."

Malek Zeidan's detention would have been unexceptional had it not given rise to
one of the legal challenges that threatens to end the secret proceedings.

Mr. Zeidan, 42, is a Syrian citizen who overstayed his visa 14 years ago and has
lived in Paterson, N.J., for more than a decade. Over the years, he has
delivered pizzas, driven an ice cream truck and pumped gas. When the Immigration
and Naturalization Service came around last Jan. 31 to ask him about a former
roommate suspected of marriage fraud, Mr. Zeidan was working at Dunkin' Donuts,
and his expired visa soon cost him 40 days in custody.

When a hearing was finally held three weeks after his detention, the judge
closed the courtroom, excluding Mr. Zeidan's cousin and reporters.

The closing of proceedings prompted lawsuits in federal court, from both Mr.
Zeidan and two New Jersey newspapers. In March, the government dropped the
"special interest" designation, Mr. Zeiden was released after posting a bond,
and the case he filed was dismissed. The immigration charges against him will be
considered in the fall.

"You're one of the lucky ones," his lawyer, Regis Fernandez, recalls telling Mr.
Zeidan, given that other visa violators were held as long as six or seven months
before being deported or released.

Mr. Zeidan's lawyers believe that their legal strategy, which focused on
openness, forced the government's hand.

"The government was somehow linking secrecy to guilt," Mr. Fernandez said. "We
figured if the public had access to these hearings they would see that nothing
went on except multiple adjournments and delay."

Through a spokeswoman, Judge Creppy declined to comment. An I.N.S. official, who
spoke on the condition that he not be named, said the agency had acted properly
in Mr. Zeidan's case and in similar cases.

He said the immigration service had always detained people without bond who were
linked to criminal investigations. He added that the agency had no choice now
but to detain a visa violator until the Federal Bureau of Investigation was sure
the person was not involved in terrorism.

"Consider the flip side -- that you held him for two days and then deported him,
and 30 days later you found out he was a terrorist," the official said.

The newspapers' lawsuit has continued. It has already once reached the Supreme
Court, and the government's papers contain one of the fullest accounts of its
position on secrecy and executive power.

Its main argument is that the courts have no role because immigration hearings
are not really trials, but are merely administrative hearings that can be closed
at will.

Bennet Zurofsky, who also represented Mr. Zeidan, said he was flabbergasted by
this suggestion.

"A trial is a trial," he said. "A person's liberty is at stake. A person is
being held in jail. A person is being told where to live."

AFTER SEPT. 11, A LEGAL BATTLE OVER LIMITS OF CIVIL LIBERTY

(PAGE 3 OF 3)

But in a sworn statement submitted in several court cases, Dale L. Watson, the
executive assistant director for counterterrorism and counterintelligence at the
F.B.I., outlined the reasoning behind the government demand for total secrecy.

"Bits and pieces of information that may appear innocuous in isolation can be
fit into a bigger picture by terrorist groups," he said.

This rationale for withholding information, sometimes called the mosaic theory,
is controversial.

"It's impossible to refute," Professor Kirtley said, "because who can say with
certainty that it's not true?"

In May, John W. Bissell, the chief judge of the federal district court in
Newark, appointed by President Reagan, ruled for the newspapers and ordered all
deportation hearings nationwide to be opened, unless the government is able to
show a need for a closed hearing on a case-by-case basis. His ruling followed a
similar one in Detroit the month before, though that case involved only a single
detainee.

The government appealed to the Court of Appeals for the Third Circuit, in
Philadelphia, and asked it to block Judge Bissell's order until the appeal was
decided. The court, which will hear arguments in September, declined to do that.
A number of news organizations, including The New York Times, filed a brief as a
friend of the court in support of the newspapers.

The government then asked the United States Supreme Court to stay Judge
Bissell's order. The court, in a relatively unusual move given that the case was
not before it for any other purpose, blocked Judge Bissell's order, suggesting
that it might have more sympathy for the government's arguments.

The Witnesses

Rights Violated, Lawyers Contend

Late on Sept. 12, federal agents pulled two nervous Indian men, Mohammed Jaweed
Azmath and Syed Gul Mohammed Shah, off an Amtrak train near Fort Worth. They
were carrying box cutters, black hair dye and about $5,000 in cash and had also
shaved their body hair.

The agents' suspicions were obvious. The hijackers had used box cutters and
knives to take control of the aircraft and had received letters instructing them
to "shave excess hair from the body." An F.B.I. affidavit dated Sept. 15 said
there was probable cause to believe that both of the Indian men were involved
in, or "were associated" with, those responsible for the Sept. 11 attacks.

But even though government officials told reporters that the men had been
detained as material witnesses, their lawyers now say that they were held last
fall only on immigration violations.

The distinction is important because a material witness warrant brings the
automatic appointment of a government-paid lawyer, while the government does not
have to supply a visa violator with counsel.

As a result, the authorities were able to question each of the men repeatedly
about terrorism without a lawyer present, their current lawyers say.

Like some of the people who were picked up as material witnesses, the Indian men
were held in isolation in jails in New York for extended periods. It was 91 days
before Mr. Azmath received a lawyer and 57 days before Mr. Shah did, their
lawyers say.

"It's wrong to keep a man in jail for 57 days and never bring him before a
magistrate to advise him of his rights," Mr. Shah's lawyer, Lawrence K. Feitell,
said in an interview. "It's wrong not to provide him with an attorney at the
threshold. It's wrong to depict this as an I.N.S. investigation, when in truth
and in fact, it's the main inquiry into the World Trade Center debacle."

Anthony L. Ricco, the lawyer for Mr. Azmath, said his client was interrogated
"often times for several hours a day, with multiple interviewers, getting rapid-
fire questions from three or four different people."

Eventually, the F.B.I. and the prosecutors cleared the men of any involvement in
terrorism, and both pleaded guilty in June in a credit- card fraud scheme and
are awaiting sentencing.

Federal prosecutors said in court papers that both men consented to questioning.
Each "was read and waived his Miranda rights before each interview," prosecutors
wrote, adding that each man confessed to the credit card offenses.

The United States attorney in Manhattan, James B. Comey, would not comment on
the specific cases, but said generally of the government's tactics: "I don't see
any violation of any rule, regulation, or law.

"I can understand defense lawyers not being happy," he said. "But I know our
position after 9/11 was to use every available tool, to stay within the rules
but play the whole field and recognize the boundaries, but cover the whole
field.

"We need to do whatever we can that's legal to investigate and disrupt," he
added.

Today, it is believed that only a handful of the two dozen material witnesses,
perhaps as few as two, are still being detained.

But the process of detaining the witnesses has stirred intense criticism.

Last April, Judge Shira A. Scheindlin of Federal District Court in Manhattan
ruled that the use of the law "to detain people who are presumed innocent under
our Constitution in order to prevent potential crimes is an illegitimate use of
the statute."

Judge Scheindlin said the material witness law applied when witnesses were held
to give testimony at trials, not for grand jury investigations. "Since 1789,"
Judge Scheindlin said, "no Congress has granted the government the authority to
imprison an innocent person in order to guarantee that he will testify before a
grand jury conducting a criminal investigation."

Then last month, Chief Judge Michael B. Mukasey, also of Federal District Court
in Manhattan, upheld the government's use of the material witness statute in
grand jury investigations, criticizing Judge Scheindlin's reasoning.

Judge Mukasey, citing the assertion in 1807 by Chief Justice John Marshall that
"the public has a right to every man's evidence," held that detentions of
material witnesses during investigations are proper.

The War Captives

No Lawyers Allowed Under U.S. Label

Yasser Esam Hamdi, a Saudi national who was captured in Afghanistan, is probably
an American citizen by virtue of having been born in Louisiana. His case
represents the core issue of what kind of role the nation's courts should have,
if any, in reviewing the government's imprisonment of someone charged with
something akin to a war crime.

Prosecutors will be back in Federal District Court in Norfolk, Va., next
Thursday to confront one of the federal judges who has shown resistance to the
government's approach that once someone is declared an "enemy combatant" by the
president, all judicial review ceases.

Judge Robert G. Doumar, an appointee of President Reagan, has twice ruled that
Mr. Hamdi is entitled to a lawyer and ordered the government to allow Frank
Dunham, the federal public defender, to be allowed to visit him without
government officials or listening devices. Judge Doumar said that "fair play and
fundamental justice" require it. He said the government "could not cite one case
where a prisoner of any variety within the jurisdiction of a United States
District Court, who was held incommunicado and indefinitely."

But the three-judge panel of the appeals court stayed Judge Doumar's order,
saying he had not fully considered the government's needs to keep Mr. Hamdi
incommunicado and, more important, the executive branch's primacy in areas of
foreign and military affairs.

"The authority to capture those who take up arms against America belongs to the
commander in chief," Chief Judge J. Harvie Wilkinson 3rd wrote for the appeals
panel.

But even Judge Wilkinson seemed to evince some surprise at the breadth of what
the government was asserting when he asked the Justice Department's lawyer, "You
are saying that the judiciary has no right to inquire at all into someone's
stature as an enemy combatant?"

The government has relented slightly, agreeing to provide the court with a
sealed declaration of the criteria by which they have judged Mr. Hamdi to be an
enemy combatant. But the government has argued that judges cannot argue with the
standards.

Judge Doumar has indicated that he will question the government closely on those
standards.

The case of Jose Padilla, which has not progressed as far as that of Mr. Hamdi,
may present an even greater challenge to normal judicial procedures.

Mr. Padilla, also known as Abdullah al-Muhajir, is, like Mr. Hamdi, an American
citizen, imprisoned in a naval brig after having been declared an enemy
combatant. But unlike Mr. Hamdi, Mr. Padilla was not arrested on the battlefield
by the military but on United States soil by civil law enforcement authorities,
on May 8 in Chicago.

After his detention as a material witness based on suspicions that he was
seeking to obtain material and information to build a radioactive bomb, he was
transferred to military custody.

"This is the model we all fear or should fear," said Mr. Dunham, the public
defender. "The executive branch can arrest an American citizen here and then
declare him an enemy combatant and put him outside the reach of the courts. They
can keep him indefinitely without charging him or giving him access to a lawyer
or presenting any evidence."

* * *


August 4, 2002

BUSH'S SHAME

By Thomas L. Friedman

COLOMBO, Sri Lanka
Watching the pathetic, mealy-mouthed response of President Bush and his State
Department to Egypt's decision to sentence the leading Egyptian democracy
advocate to seven years in prison leaves one wondering whether the whole Bush
foreign policy team isn't just a big bunch of phonies. Shame on all of them.

Since Sept. 11 all we've heard out of this Bush team is how illegitimate
violence is as a tool of diplomacy or politics, and how critical it is to oust
Saddam Hussein in order to bring democracy to the Arab world. Yet last week,
when a kangaroo court in Egypt, apparently acting on orders from President Hosni
Mubarak, sentenced an ill, 63-year-old Saad Eddin Ibrahim to seven years at
"hard labor" for promoting democracy -- for promoting the peaceful alternative
to fundamentalist violence -- the Bush-Cheney team sat on its hands.

The State Department, in a real profile in courage, said it was "deeply
disappointed" by the conviction of Mr. Ibrahim, who holds a U.S. passport.
"Disappointed"? I'm disappointed when the Baltimore Orioles lose. When an
Egyptian president we give $2 billion a year to jails a pro-American democracy
advocate, I'm "outraged" and expect America to do something about it.

I'm also frightened, because if there is no space in Egypt for democratic voices
for change, then Egyptians will only be left with the mosque. If there is no
room in Egypt for Saad Ibrahims, then we will only get more Mohamed Attas --
coming again to a theater near you.

Mr. Ibrahim's "crime" was that his institute at the American University in Cairo
was helping to teach Egyptians how to register to vote, how to fill out a ballot
and how to monitor elections. The Egyptian court accused him of embezzling funds
from the European Union, which supported his efforts. The outraged E.U. said no
such thing ever happened.

This monkey trial was really about an insecure, isolated Mr. Mubarak quashing
any dissenters, and it is much more important than it looks -- because so many
more people are watching than we think. The other day, I interviewed a leading
Sri Lankan human rights activist, Radhika Coomaraswamy, director of the
International Center for Ethnic Studies. We started out talking about Sri Lanka
but ended up talking about Mr. Ibrahim, whom she knew, and America.

"What is the nonviolent alternative for expressing discontent [and promoting
change]?" she asked me. "It's democracy. When you remove any democratic
alternative, the only route left in many countries for expressing discontent is
religious fundamentalism. Saad is the alternative democratic voice, and if we
don't protect it we're just inviting more violence."

This ties in with a larger concern that human rights activists share toward
America today -- a concern that post-9/11 America is not interested anymore in
law and order, just order, and it's not interested in peace and quiet, but just
quiet. I am struck by how many Sri Lankans, who are as pro-American as they
come, have made some version of this observation to me: America as an idea, as a
source of optimism and as a beacon of liberty is critical to the world -- but
you Americans seem to have forgotten that since 9/11. You've stopped talking
about who you are, and are only talking now about who you're going to invade,
oust or sanction.

These days, said Mrs. Coomaraswamy, "none of us in the human rights community
would think of appealing to the U.S. for support for upholding a human rights
case -- maybe to Canada, to Norway or to Sweden -- but not to the U.S. Before
there were always three faces of America out in the world -- the face of the
Peace Corps, the America that helps others, the face of multinationals and the
face of American military power.

"My sense is that the balance has gone wrong lately and that the only face of
America we see now is the one of military power, and it really frightens the
world. . . . I understand that there is always a tension between security
concerns and holding governments accountable for human rights. But if you focus
on security alone and allow basic human rights violations in the name of
security, then, well, as someone who grew up in America and went to law school
there, I find that heartbreaking."

So do I. How about before we go trying to liberate a whole country -- Iraq -- we
first liberate just one man, one good man, who is now sitting in an Egyptian
jail for pursuing the very democratic ideals that we profess to stand for.

* * *


July 31, 2002

JUDGE ASKS FOR COPIES OF INTERROGATION

By The Associated Press

Filed at 8:20 p.m. ET

NORFOLK, Va. (AP) -- As he weighs a request for the man's release, a judge
Wednesday ordered the government to tell him what interrogators have learned
from an American-born prisoner captured in Afghanistan.

U.S. District Judge Robert G. Doumar said he wants copies of Yaser Esam Hamdi's
statements to interrogators and any notes from interviews that relate to why
Hamdi went to Afghanistan and what he did there.

Doumar also wants to know who in the federal government decided to classify
Hamdi as an enemy combatant, which prosecutors have argued means he can be held
indefinitely without charges and without seeing a lawyer.

Doumar asked for the documents by Aug. 6 and said he will hear arguments Aug. 8.

Hamdi's attorney, Frank W. Dunham Jr., has been trying to win his client's
release, arguing Hamdi is not a terrorist and is being denied his constitutional
right to due process.

Hamdi, 21, was captured by U.S. forces late last year after a prison uprising by
Taliban and al-Qaida members in Afghanistan. He was held at Guantanamo Bay,
Cuba, until it was discovered he was born in Louisiana to Saudi Arabian parents
who moved to Saudi Arabia when he was a child. He was transferred to the jail at
the Norfolk Naval Station in April.

The judge's order said government lawyers may withhold "any intelligence matters
not within the scope of this inquiry into Hamdi's legal status."

* * *


July 26, 2002

PROSECUTORS DETAIL 'ENEMY COMBATANT' CASE

By The New York Times

NORFOLK, Va., July 25 -- An American-born man being held without charges or
access to a lawyer is an "enemy combatant" because he was armed with an assault
rifle when captured late last year in Afghanistan, according to a federal court
filing made public today.

The brief description of how the man, Yaser Esam Hamdi, 21, was caught by
Northern Alliance forces is crucial to the government's contention that he is
not entitled to a lawyer and can be held without charges for as long as the
country's military actively battles terrorism. It is also the first time the
government has revealed any substantial information about how Mr. Hamdi, born in
Louisiana and raised in Saudi Arabia, became a captive.

The papers filed today in Federal District Court here by Lawrence R. Leonard, an
assistant United States attorney, seek to end Mr. Hamdi's representation by a
public defender, Frank W. Dunham Jr. Mr. Hamdi has been held in the Norfolk
Naval Station brig since April.

The government filing contends that Mr. Hamdi told American military authorities
that he went to Afghanistan "to train with and, if necessary, fight for the
Taliban."

His family has said he went to Afghanistan for humanitarian reasons and got
caught up in the conflict.

* * *


July 23, 2002

FEDS OPPOSE PUBLIC DEFENDER FOR HAMDI

By The Associated Press

Filed at 8:29 p.m. ET

NORFOLK, Va. (AP) -- Government lawyers argued Tuesday that an American-born
prisoner captured in Afghanistan is not entitled to a public defender because
his father can afford to hire an attorney.

The government asked a federal judge to terminate his appointment of a federal
public defender for Yaser Esam Hamdi, or require the public defender or Hamdi's
father to demonstrate financial eligibility for court-appointed counsel.

"The taxpayers should not be required to pay for that representation" without
such proof, federal attorneys said in court papers.

Frank Dunham Jr., Virginia's federal public defender, did not immediately return
a telephone call seeking comment. His office has until Wednesday to file a
response to the government's motion.

U.S. District Judge Robert Doumar appointed the public defender after Esam Fouad
Hamdi said his son had no assets to retain a lawyer and the father said he would
be "unable" to pay, the government noted.

The government argued that because Yaser Hamdi did not seek an attorney, his
assets are irrelevant. Instead, the father sought legal help for his son, the
government said, and he can afford an attorney.

The government also cited a letter the elder Hamdi wrote last month to the
American ambassador in Saudi Arabia, saying he works for an oil company and
asking what steps he could take to help protect his son's rights.

Hamdi, 21, was captured in November after a prison uprising by Taliban and al-
Qaida members. He was held at Guantanamo Bay, Cuba, until it was discovered he
was born in Louisiana to Saudi Arabian parents. He was transferred to the jail
at the Norfolk Naval Base in April.

The public defender's office has been trying since mid-May to provide Hamdi with
legal representation and arrange his release. The government has argued Hamdi
was an enemy combatant who can be held indefinitely without being charged or
allowed to see a lawyer.

Doumar has ordered the government to justify Hamdi's continued detention in
writing by Thursday. The judge's earlier order mandating that a public defender
be allowed to meet with Hamdi was overturned by a federal appeals court.

* * *


July 21, 2002

FLAWS IN U.S. AIR WAR LEFT HUNDREDS OF CIVILIANS DEAD

By Dexter Filkins

KABUL, Afghanistan -- The American air campaign in Afghanistan, based on a high-
tech, out-of-harm's-way strategy, has produced a pattern of mistakes that have
killed hundreds of Afghan civilians.

On-site reviews of 11 locations where airstrikes killed as many as 400 civilians
suggest that American commanders have sometimes relied on mistaken information
from local Afghans. Also, the Americans' preference for airstrikes instead of
riskier ground operations has cut off a way of checking the accuracy of the
intelligence.

The reviews, over a six-month period, found that the Pentagon's use of
overwhelming force meant that even when truly military targets were located,
civilians were sometimes killed. The 11 sites visited accounted for many of the
principal places where Afghans and human rights groups claim that civilians have
been killed.

Pentagon officials say their strategy has evolved in recent months away from
airstrikes to the use of ground forces to hunt down remaining fighters for the
Taliban and Al Qaeda. Since then, air power has been deployed in mostly a
supporting role; still, the effects have often been disastrous.

The American attack this month on villages in Oruzgan Province, where airstrikes
killed at least 54 civilians, has crystallized a sense of anger here is
undermining the good will the United States gained by helping to dislodge the
Taliban. That anger is threatening to frustrate America's ability to hunt down
Taliban and Qaeda forces that still survive.

For the first time, Afghan leaders are demanding a say in how air raids are
conducted. They are even hinting that if the mistakes continue, they may limit
America's future military activities.

"We have to be given a larger role," said Dr. Abdullah, the Afghan foreign
minister, in an interview. "If things do not improve, well, I will certainly
pray for the Americans and wish them success, but I will no longer be able to
take part in this."

The Pentagon often relies on information from warlords and other Afghans whose
loyalties are unclear in a country riven by decades of war and tribal rivalries.
That information may be incomplete or inaccurate, and sometimes even
deliberately misleading. As a result, the Pentagon's critics say, the military
has too often struck without a full understanding of what it was attacking.

American military commanders insist they take pains to ensure that civilians are
spared, often verifying their targets with several sources of information. In
many of the cases cited here, they insisted that they struck valid military
targets. Often, despite evidence on the ground, they denied that civilians were
killed.

Indeed, the American commanders reject the notion that they may be placing too
much reliance on Afghan warlords for information, or too much reliance on air
power to carry out their strategy.

"We painstakingly assess the potential for injuring civilians or damaging
civilian facilities, and positively identify targets before striking," said Col.
Ray Shepherd, the spokesman for the United States Central Command in Tampa, Fla.

Nonetheless, American officials acknowledged that the botched strike in Oruzgan
has strained relationships with Afghanistan. They said that since the raid, they
have changed procedures. "We want to ensure that coordination with Afghan
leaders is complete prior to an action," Colonel Shepherd said.

The war in Afghanistan is not the first time that differences have risen between
what pilots thought they hit and what was found on the ground later. Nor is it
the first time that questions have risen about civilian casualties from American
airstrikes.

After 78 days of airstrikes over Serbia in 1999, American military officials
conceded that damage to the Yugoslav Army was far less extensive than originally
thought. In those raids, Human Rights Watch, an American organization, said at
least 500 civilians had been killed.

American commanders say they have not kept track of civilian deaths in
Afghanistan, but they say their strategy has succeeded. Earlier this year, Gen.
Tommy R. Franks, the head of Central Command, called the Afghan campaign "the
most accurate war ever fought in this nation's history." The military also takes
solace in relatively low American casualties, including 37 soldiers killed.

Indeed, the extraordinary accuracy of American airstrikes since they began in
October has produced few of the types of disasters that plagued past wars, when
bombs aimed at one target hit something else instead. In one of those cases here
last November, an American bomb aimed at a building that was thought to harbor a
senior Taliban military commander, Jalaluddin Haqqani, hit a mosque.

A reporter visiting the mosque after the strike found evidence to substantiate
Afghans' claim that at least 65 civilians died. American military officials
acknowledged that the mosque had been struck in error, but a senior American
military official was not able to give the precise number of dead.

Those kinds of incidents have been rare. Instead, the evidence suggests that
many civilians have been killed by airstrikes hitting precisely the target they
were aimed at. The civilians died, the evidence suggests, because they were were
made targets by mistake, or because in eagerness to kill Qaeda and Taliban
fighters, Americans did not carefully differentiate between civilians and
military targets.

Field workers with Global Exchange, an American organization that has sent
survey teams into Afghan villages, say they have compiled a list of 812 Afghan
civilians who were killed by American airstrikes. They say they expect that
number to grow as their survey teams reach more remote villages.

Marla Ruzicka, a Global Exchange field worker in Afghanistan, said the most
common factor in the civilian deaths had been an American reliance on incomplete
information to decide on targets.

"Smart bombs are only as smart as people on the ground," Ms. Ruzicka said.
"Before you bomb, you should be 100 percent certain of who you are bombing."

The most recent errant strike, around the village of Kakrak in Oruzgan Province,
appears to have resulted from a reliance on faulty intelligence and the use of
sudden and excessive force in trying to kill people who the American pilots
thought were enemy fighters.

On July 1, during an operation to hunt Taliban leaders, an American AC-130
gunship attacked four villages around the hamlet of Kakrak. American soldiers
later found villagers gathering up the limbs of their neighbors. Local officials
counted 54 dead, most of them women and children, and at least 120 wounded.

American pilots fired on Kakrak after Special Operations forces on the ground
reported seeing antiaircraft guns firing, military officials said. According to
the villagers, there were two engagement parties that night, and some of the men
were firing their guns in celebration, an Afghan tradition. The Americans said
their planes had been fired on, but the villagers denied aiming at anything.

American officials have acknowledged that the raid killed innocents, and they
have sent a team to the village to investigate.

But the larger issue for Afghans is what the Americans were doing there in the
first place, and why they attacked the villages with such ferocity. As in past
cases, they say the Americans relied on bad information, from an Afghan
intelligence official from another tribe, and that they fired their guns before
they were sure whom they were shooting at.

"The Americans are not from here and they don't know our traditions or our
enemies and who has enemies," said Jan Muhammad, the governor of Oruzgan
Province, who spent three years in jail under the Taliban. "So they should
contact us first and check first."

The American military says that Special Operations forces operated in the area
for some weeks, taking heavy fire from parts of the province including the area
near Kakrak, and that that is what led them to Kakrak.

The raid on July 1 was the sixth since January that the United States had
carried out to hunt Taliban leaders in southern Afghanistan. So far, Americans
have not detained even a single important Taliban leader but have killed more
than 80 people.

In Kakrak, five men were arrested. Among the homes hit there was that of Abdul
Malik, who fought with Hamid Karzai, now Afghanistan's president, last fall when
he launched a local campaign to oust the Taliban. Mr. Malik lost 25 family
members.

"Every time they say that they will coordinate more," Mr. Muhammad said,
referring to American commanders. "They killed my people in Oruzgan, and they
said they would not make a mistake again and that they would contact us first.
Then they did it again."

What angered Afghans like Mr. Muhammad, and Westerners working in the area, is
what they described as a trigger-happy American approach. No Americans entered
the village before the planes opened fire. Once called in, the American AC-130
gunship, which employs machine guns and heavy cannons, strafed four villages.

"Two questions remain: why they attacked with such force, and what precautionary
moves do they take to differentiate between civilians and Al Qaeda and Taliban,"
said a Western aid official working in southern Afghanistan. "They attacked
quite a big area, four villages, and you cannot just assume that everyone there
is the enemy."

The pattern of striking with maximum force on questionable targets began months
before, when American planes attacked an ammunition dump in the village of Niazi
Qala, 50 miles south of Kabul, and wiped out the entire village. A United
Nations spokeswoman said 52 people died there.

Local Afghans said Taliban leaders had moved a large store of ammunition to
Niazi Qala, fearing that the American planes would find it if they left it
stored in a fort in Gardez, the provincial capital.

The American planes found it anyway, striking Niazi Qala on the night of Dec.
29.

A reporter visiting the village a month after the attack found no sign, apart
from remnants of the ammunition depot, of Al Qaeda or the Taliban.

Seven months later, with summer in full bloom, the town stood lifeless. Six
survivors from Niazi Qala live in a nearby village, among them, Ahmed Gul, a 13-
year-old boy with an ill-fitting plastic eye, and his 12-year-old cousin, Lal
Muhammad, his torso crisscrossed with scars.

"All the Americans had to do was come here, and they could have seen for
themselves that there were no Taliban among us," said Janat Gul, one of the
survivors.

An American military official interviewed about Niazi Qala did not deny that
civilians were killed there, but he insisted that the village had been a base
for Taliban and Qaeda fighters. "This compound was in use by Taliban and Al
Qaeda senior leadership," he said. The official did not name who those senior
officials might have been.

Hajji Saifullah, the leader of the Gardez ruling council, said the Americans had
relied on faulty intelligence provided by a local warlord, Padsha Khan Zadran.

Mr. Zadran, who was then vying to become governor of the area, told the
Americans to strike the town in order to eliminate a village that had refused to
support him, Mr. Saifullah said.

"The Americans got it completely wrong," Mr. Saifullah said in an interview.
"Those people were not Al Qaeda. The Americans are listening to the wrong
people."

One of the most deadly of the questionable American raids came when Mr. Zadran
apparently used his influence with the Americans to call in a strike on his
political foes.

On Dec. 20, according to rival Afghan commanders in Gardez, Mr. Zadran ordered
fighters at a checkpoint south of the city to halt a convoy of tribal elders
from Khost who were heading to Kabul for the inauguration of the new interim
government. They demanded that the elders pressure Mr. Karzai to appoint Mr.
Zadran the governor of Paktia, Paktika and Khost Provinces. The elders, Afghans
in Gardez say, refused.

A few hours later, the convoy of elders was hit by a succession of American
attacks, which killed most of the occupants. The survivors scrambled up a hill,
toward the villages of Asmani and Pokharai, and the American planes, circling
back, struck both villages, destroying about 20 homes.

Rival warlords in Gardez say Mr. Zadran used his satellite phone to tell the
Americans that the convoy was filled with Qaeda fighters.

The Afghans insist, however, that the elders in the convoy supported Mr.
Karzai's government.

A few weeks after the strike, two men from a nearby village who were found
sifting through the rubble of Asmani for their relatives' belongings said they
had buried 42 villagers after the strike.

The men were adamant that there had never been any Qaeda or Taliban fugitives
there.

"I swear it, I collected all the bodies, and every one was a villager, somebody
I knew," said Hajji Khial Khan, one of the men.

A senior American military commander said that both the convoy and the villages
were valid military targets filled with enemy forces, and that several senior
Taliban leaders were killed or wounded.

At Asmani, Akal Khan Kharakhel, one of the men rummaging through the ruins, was
asked what lesson the Americans might draw from what happened. He did not
hesitate.

"The Americans' big mistake," he said, "was to give satellite telephones to a
man who has only one interest, and not the same one as the Americans."

John F. Burns and Carlotta Gall contributed to this article from Afghanistan.

* * *


July 16, 2002

A PLEA SUITED TO BOTH SIDES

By David Johnston

WASHINGTON, July 15 -- When John Walker Lindh was charged in January with
conspiring with the Taliban to kill Americans, Attorney General John Ashcroft
pronounced it a critical case in the nation's fight against terrorism. He
asserted that Mr. Lindh chose to become a fanatical follower of the Taliban and
never wavered in his allegiance to terrorism.

But today, as Mr. Lindh sat in a federal court in Virginia to accept a plea
bargain, the case of the thin and clean- shaven Californian had long since lost
its symbolic standing as the government's most high-profile effort to bring the
Taliban to justice in American court.

While federal prosecutors had publicly continued to advance Mr. Ashcroft's
argument that Mr. Lindh represented a serious menace, privately, within legal
circles, there was a strong feeling of relief that the Justice Department
reached a deal with Mr. Lindh. For all the buildup, in the end law enforcement
officials said the Lindh case was too insignificant to be worth a protracted
courtroom battle.

Officials at the Pentagon and the F.B.I. complained privately that Mr. Ashcroft
had overstated the threat posed by Mr. Lindh in remarks like those on Jan. 15
when he said, "He chose to embrace fanatics, and his allegiance to those
terrorists never faltered."

But a courtroom battle could also have been embarrassing for the government. Mr.
Lindh's lawyers planned to present evidence of how after his capture Mr. Lindh
was not given adequate medical care and was denied access to a lawyer when he
made admissions about his activities with the Taliban. One person involved in
the negotiations that led to the plea bargain said that the government wanted a
quick resolution before evidence surfaced of Mr. Lindh's treatment.

Even if they feared having the case go to trial, law enforcement officials said
they believed there was little doubt that the evidence against Mr. Lindh was
strong enough to easily win a guilty verdict, particularly in a Northern
Virginia court where jurors are regarded as sympathetic to the government. But
these officials had grown skeptical that Mr. Lindh played any meaningful role in
Islamic terrorism. The plea bargain offered the government a quick way out.

As they swept the Lindh case off the docket, Justice Department officials
defended the plea bargain and the 20-year prison term that Mr. Lindh will serve.

But the government did make some important concessions. It dropped counts
accusing Mr. Lindh of terrorism and conspiring to kill Americans, including
accusations that linked Mr. Lindh to the death of Johnny Micheal Spann, a
Central Intelligence Agency officer who was killed in Afghanistan.

Even though a guilty verdict could have led to a far longer sentence, Justice
Department officials framed the plea bargain as a victory that reflected the
criminality of Mr. Lindh's actions in Afghanistan.

"He isn't going to spend 20 years in prison for a misspent youth," said one
government official referring to the two 10-year terms that Mr. Lindh will serve
under the terms of the agreement. "He's going to prison for what he did in
Afghanistan."

For his part, Paul J. McNulty, United States attorney for Eastern Virginia, said
after today's court hearing that prosecutors accepted the deal because it would
force Mr. Lindh to serve a lengthy sentence, allow prosecutors to avoid a long
and expensive trial and save resources and staff for other cases.

Still, on a case of such international interest, prosecutors are not often
motivated by mere concerns about resources. It was evident that both sides were
looking for a way to end the case without a trial. Last week, government lawyers
began preparing for a possible plea, obtaining White House approval to go ahead
with talks, government officials said.

Mr. Lindh's defense team had its own motives for settling the case. After a
hearing on Friday, Judge T. S. Ellis III of Federal District Court signaled that
he was prepared to rule against Mr. Lindh and allow all of the defendant's
incriminating statements to be introduced as evidence in the trial.

Last Wednesday, senior Justice Department officials met with Alberto R.
Gonzales, the White House counsel, to discuss the possibility of a deal. Mr.
Gonzales met with President Bush on Thursday at a meeting in which the president
authorized the Justice Department to seek out a tough deal. Mr. Bush was
informed of the terms of the deal Sunday.

The two sides differ on who first broached a concrete proposal, but the first
serious step came on Friday afternoon after prosecutors outlined a deal that
would force Mr. Lindh to spend a long period in prison, but would spare him a
life sentence.

For Mr. Lindh, any conviction by a jury could have meant a lengthy sentence of
30 years or more since he was accused of carrying an automatic weapon -- an
offense that carries an automatic enhancement under the federal sentencing
guidelines.

James J. Brosnahan, one of the Mr. Lindh's lawyers, said that he met over the
weekend with Michael Chertoff, head of the Justice Department's criminal
division, Randy I. Bellows, the lead prosecutor in the case, and Mr. McNulty.

Lawyers inside and outside the government said the deal may damage the
government's credibility, but will have little impact on other terrorism cases.
So far, only two other people have been charged with terror-related crimes,
Zacarias Moussaoui, who has been accused of being the 20th hijacker in the Sept.
11 attacks, and Richard C. Reid, who was charged with trying to detonate a shoe
bomb last December aboard a Paris-to-Miami flight.

In addition, the government is holding Yasser Esam Hamdi, who was captured in
Afghanistan and was discovered to be an American citizen.

Under the deal, Mr. Lindh must serve almost all of the sentence, largely because
there is no parole in the federal sentencing system. He pleaded guilty to one
charge of providing services to the Taliban and another of carrying explosives
while committing that felony.

He must cooperate with authorities, cannot profit from books or films about his
experiences and will testify before civilian courts or military tribunals if,
for example, detainees are prosecuted in such a forum.

But by reaching the deal he has avoided a trial and the possibility of a life
sentence in prison. The government agreed to drop all terrorism charges against
him -- accusations that could have led to a life sentence if he had been found
guilty.

* * *

July 16, 2002

ACCORD SUGGESTS U.S. PREFERS TO AVOID COURTS

By Adam Liptak

he plea agreement entered into by John Walker Lindh includes an unusual
provision that may reflect the government's evolving thinking about how to
handle people accused of terrorism and those allied with them.

The agreement says that for the rest of his life the government may immediately
and unilaterally capture and detain Mr. Lindh as an "enemy combatant" should it
determine that he has engaged in any of a score of crimes of terrorism. The
government has said that such detentions, which are military rather than
criminal, are beyond the power of the courts to second-guess.

Legal experts said the reference to enemy combatant status in the plea
agreement, along with the government's recent decisions to detain Yasser Esam
Hamdi and Jose Padilla as combatants without filing charges against them,
suggests that the government now prefers detentions to trials. Officials accuse
Mr. Padilla of planning to explode a radioactive device, while Mr. Hamdi was
captured on the battlefield in Afghanistan. Both men claim American citizenship.

Some experts read the outcome in the Lindh case differently, saying it provides
proof that the courts remain well suited to hear terrorism cases. After all, the
government obtained a substantial sentence apparently without having to disclose
sensitive information or otherwise compromise its fight against on terrorism.

Douglas Cassel, the director of the Center for International Human Rights in
Chicago, said the 20-year sentence Mr. Lindh accepted, which is subject to the
judge's approval, sends a strong message.

"Even if you are a very young man and even if you don't directly engage in acts
of violence against Americans, you can get a very significant sentence,"
Professor Cassel said.

By comparison, Ronald Allen, who teaches criminal law at Northwestern
University, said only the gravest crimes warranted a sentence that long against
a first offender. "You would probably have to kill more than one person,"
Professor Allen said.

Professor Cassel said the severity of the sentence meant that the government
should not hesitate to file criminal charges against Mr. Hamdi and Mr. Padilla.

"The first and most basic thing is they ought to very carefully review those
cases," he said.

But Eric M. Freedman, a law professor at Hofstra University, said that he
thought the government did less well in the Lindh negotiations and that he was
worried that it would try to avoid the courts from now on.

"The United States government has suffered a setback in this, which is good for
Lindh but bad for civil liberties, especially if the lesson the government
learned is that it's easier to do these things without due process than with due
process," Professor Freedman said.

Yale Kamisar, a law professor at the University of Michigan, said the procedure
and outcome in the Lindh case should be considered satisfactory to the American
notion of justice, especially in contrast to the alternative of indefinite
detention.

"At least in this case he got his day in court," Professor Kamisar said of Mr.
Lindh.

"It may be that if this case arose today they wouldn't do it this way," he said,
referring to the government's choice of federal court for its forum. "They've
toughened up."

Legal scholars found it hard to identify a rationale that would call for an
ordinary criminal prosecution of Mr. Lindh but military detention of Mr. Padilla
and Mr. Hamdi. The search for a unifying principle becomes even more difficult
if Zacarias Moussaoui and Richard C. Reid are added to the mix. Mr. Moussaoui is
charged in connection with the Sept. 11 attacks, and Mr. Reid is accused of
trying to detonate an explosive device in his shoe on an airplane. Cases against
both men are proceeding in federal court.

Efforts to distinguish the treatment of these prisoners on consistent grounds
tend to fail. The distinguishing factor is not citizenship: Mr. Moussaoui is
French, and Mr. Reid is British; the others claim American citizenship. Nor is
it the place of arrest: Mr. Lindh and Mr. Hamdi were captured in Afghanistan,
the others in the United States. Nor is it the nature of the central criminal
charge: Mr. Moussaoui, Mr. Reid and Mr. Padilla are accused of attempting or
conspiring to commit terrorist acts, the others of fighting on the wrong side
abroad.

"You do worry about equal treatment and having a consistent theory about who
ends up where," said Ruth Wedgwood, a law professor at Yale.

The only factor that seems to explain the disparity in how the men were treated
is time. The later detentions were military, suggesting that the government may
now view ordinary trials as more trouble than they are worth.

"Some people may be feeling a little regret that Moussaoui is using the
courtroom as a platform," Professor Wedgwood said. Mr. Moussaoui is representing
himself at trial, and his freewheeling, conspiracy-minded litigation style has
presented the court with difficult choices.

"I'm not sure we'd handle Moussaoui in the same way now," she said.

Mr. Padilla and Mr. Hamdi could yet be tried in federal court or before a
military tribunal, though the latter would require redrafting the recently
issued regulations, which exclude Americans from the tribunals' jurisdiction.

"The administration has repeatedly said it will not put American citizens before
military tribunals," Professor Freedman said, "and it is not going to be able to
hold people locked up indefinitely with no process at all."

Professor Wedgwood said the government's seeming preference for military
detention over criminal trials in more recent cases demonstrated how its
thinking was changing.

"You do have to see it as part of an evolving national time of reflection about
how to handle these cases," she said.

* * *


July 13, 2002

JUDGES KEEP DETAINEE AND HIS LAWYER APART

By PHILIP SHENON

WASHINGTON, July 12 -- A federal appeals court ruled today that an American
accused of fighting for the Taliban could be held, at least for now, without
access to a lawyer and without being charged.

The decision was in one of the most closely watched cases pitting civil
liberties against national security in the aftermath of Sept. 11. A three-judge
panel of the United States Court of Appeals for the Fourth Circuit, in Richmond,
Va., unanimously reversed a lower court ruling that would have allowed Yasser
Esam Hamdi, a 21-year- old who was born in Louisiana and reared in Saudi Arabia,
to see a lawyer.

The ruling returns the case to the lower-court judge for review. It was at least
a temporary victory for the government, which has alleged that Mr. Hamdi is an
"enemy combatant" and thus not entitled to the constitutional rights of a
citizen.

Mr. Hamdi was captured on the battlefield in Afghanistan last fall. He is being
held in the naval brig in Norfolk, Va. His father and a public defender had
sought access to him, arguing that Mr. Hamdi had a constitutional right to legal
representation.

But today, the appeals court in Richmond, which is generally considered the most
conservative in the country, said the lower court had acted "without adequately
considering the implications of its actions" when it ruled that Mr. Hamdi could
see a lawyer.

The ruling, written by Chief Judge J. Harvie Wilkinson III and joined in by
Judges William W. Wilkins Jr. and William B. Traxler Jr., said the decision last
month, by the Federal District Court in Norfolk, "does not consider what effect
petitioner's unmonitored access to counsel might have on the government's
ongoing gathering of intelligence."

Civil liberties groups have said they are alarmed by the government's view,
since it suggests that an American could be imprisoned indefinitely during a
terrorism fight that is expected to last years.

In the earlier decision, Judge Roger G. Doumar sided with the civil liberties
groups and appointed a public defender for Mr. Hamdi.

In reversing Judge Doumar's opinion, the appeals court acknowledged it was
uncomfortable with the government's "sweeping proposition -- namely that, with
no meaningful judicial review, any American citizen alleged to be an enemy
combatant could be detained indefinitely without charges or counsel on the
government's say-so."

Rather than dismissing the Hamdi family's request for legal representation, the
appeals court returned the case to Judge Doumar for review, saying that "any
judicial inquiry into Hamdi's status as an alleged enemy combatant in
Afghanistan must reflect a recognition that government has no more profound
responsibility than the protection of Americans, both military and civilian,
against additional unprovoked attack."

* * *


Bomb Suspect Attacks Tactics of Government

By BENJAMIN WEISER

Lawyers for Jose Padilla, the former Chicago gang member accused of plotting to
explode a radioactive bomb in the United States, said yesterday that prosecutors
were engaged in improper legal tactics to move his case from New York to South
Carolina, where courts are thought to be more favorable to the government. They
noted that the government was also bringing cases against Zacarias Moussaoui,
who was arrested in Minnesota, and John Walker Lindh, who was caught in
Afghanistan, in federal court in Virginia, part of the same federal appellate
circuit as South Carolina.

"The government has engaged in impermissible forum shopping," Mr. Padilla's
lawyers said in a filing in Federal District Court in Manhattan.

The lawyers, saying Mr. Padilla's rights have been violated, are asking that a
federal judge in Manhattan review the legality of his detention so he can be
released.

Mr. Padilla, who has not been charged, was initially detained in Chicago in May,
and was then brought to New York where, on June 9, he was transferred to
military custody. He was moved to a Navy brig in Charleston, S.C., where he is
being held as an enemy combatant.

Federal prosecutors have asked that Judge Michael B. Mukasey dismiss the
petition for a writ of habeas corpus filed on behalf of Mr. Padilla, saying he
lacks jurisdiction.

They say that Mr. Padilla, who is also known as Abdullah al-Muhajir, is being
held "consistent with the laws and customs of war."

But Mr. Padilla's lawyers, Donna R. Newman and Andrew G. Patel, emphasized the
broad power of the writ of habeas corpus and "its ability to cut through
barriers of form and procedural mazes," as they quoted one former Supreme Court
justice.

They disputed the government's contention that the petition must be brought, if
at all, in South Carolina, saying the choice of that location was "orchestrated
by the government."

"To deny this court jurisdiction," they told the New York judge, "would
encourage the government to continue in their machinations."

A spokesman for James B. Comey, the United States attorney in Manhattan, had no
comment.

Mr. Padilla's lawyers also contended that their petition was properly filed
against President Bush, in his role as commander in chief of the armed forces,
among others.

* * *


June 27, 2002

FEDS: COURTS OFF - LIMITS TO DETAINEES

By The Associated Press

Filed at 4:22 a.m. ET

WASHINGTON (AP) -- U.S. courts have no say over detainees in the war on
terrorism because they are being held abroad, a lawyer for the federal
government argued.

"The notion that they have no access to courts does not mean they are without
rights," Justice Department lawyer Paul Clement told a judge Wednesday. "The
scope of those rights are for the political and military branches to determine."

Clement spoke at a hearing to determine whether a federal court can hear two
lawsuits involving 14 of the more than 500 alleged al- Qaida fighters being held
at the U.S. Navy base in Guantanamo Bay, Cuba.

Lawyers for the detainees argued that U.S. courts should be allowed to intervene
to prevent torture, summary executions and other abuses.

"We are seeking basic rights while they are in confinement," said lawyer Thomas
Wilner, who represents 11 Kuwaiti detainees.

The Kuwaitis and a group of two Britons and an Australian are suing the federal
government in Washington over their detention at Guantanamo Bay. U.S. District
Judge Colleen Kollar-Kotelly heard arguments Wednesday on whether she has the
power to take the case. Kollar-Kotelly did not say when she would rule on the
issue.

Clement said the detainees could raise human rights concerns through diplomatic
channels or under international law, not in the U.S. justice system.

Most of the men being held at Guantanamo were captured in or near Afghanistan,
though the detainees also include several alleged al- Qaida members apprehended
in Bosnia. Military officials say the detainees are being interrogated to gather
information that could prevent future terrorist attacks.

The Bush administration has argued from the beginning that the detainees are
"enemy combatants" who have limited rights under international laws of war.

Kollar-Kotelly said she was troubled by the notion that the U.S. military could
hold the detainees indefinitely.

"Is it your contention that this detention doesn't have an end?" she asked
Clement.

"There will be an end point to the detention, but it's the government's
contention that that decision is for the executive branch to make," Clement
replied.

The judge also seemed skeptical of arguments by the detainees' lawyers that U.S.
courts do have some control over the detainees.

"I agree that if they were sitting in the United States, they would have certain
rights," Kollar-Kotelly told Joseph Margulies, a Minneapolis lawyer representing
the two Britons and the Australian. The judge added she did not know of any
court rulings saying such detainees have constitutional rights.

Wilner argued that because Guantanamo Bay is totally under U.S. control,
American courts can rule on what happens there. Clement argued that the U.S.
lease on the base says Cuba has sovereignty over the base.

The Britons and the Australian seek a court order to be released, while the
Kuwaitis seek access to their lawyers.

In another case Wednesday, a federal appeals court rejected a public defender's
initial request to represent a suspected American- born Taliban fighter being
held at a Navy jail in Norfolk, Va., saying the attorney had no official
relationship with the man.

Even so, the defense attorney in question, Frank Dunham, will stay on as the
lawyer for Yaser Esam Hamdi, because the ruling did not affect a second petition
asking for legal representation, filed on Hamdi's behalf by his father. That
petition resulted in Dunham being appointed as Hamdi's lawyer.

The ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va., does not
address the larger question of whether Hamdi has the right to an attorney or
whether he can be detained indefinitely by the U.S. military.

In yet another development, the Bush administration told the Supreme Court
Wednesday that irreversible damage to national security would result if the
press or public is allowed into immigration hearings for foreign terrorism
suspects.

The high court could rule as soon as Thursday on whether to block a federal
judge's ruling against the government on the issue.

* * *


June 27, 2002

LAWYER BARRED FROM U.S. MAN BUT NOT FROM THE MAN'S FATHER

By Katharine Q. Seelye

WASHINGTON, June 26 -- A federal court ruled today in the case of an American
citizen in a Naval brig in Virginia that a public defender could not represent
him because they did not know each other.

The decision covered one narrow aspect of a case that poses numerous
constitutional questions about the reach of the president's authority over the
rights of an American citizen in a time of war. The court, the United States
Court of Appeals for the Fourth Circuit, in Richmond, Va., is expected to
address those broader questions, which were argued Tuesday, in a later ruling.

Those questions include whether an American citizen who is accused by the
president of being an enemy combatant has a right to a lawyer and whether the
United States may detain that person indefinitely without charging him with a
crime.

Today's ruling has little practical effect on the case in which it was brought.
The Fourth Circuit, in an unanimous opinion written by Chief Judge J. Harvie
Wilkinson III, said Frank W. Dunham, the public defender appointed by a lower
court to represent the defendant, Yaser Esam Hamdi, did not have proper standing
to represent him because they had no significant relationship.

However, it said Mr. Hamdi's father had proper standing as "next friend" to seek
representation on his son's behalf. The lower court had already appointed Mr.
Dunham to act on behalf of the father in the case. As a result, Mr. Dunham said
today, he will stay on the case at the father's behest as next friend, acting
for the son and signing papers for him because he is inaccessible.

Today's ruling, after arguments on June 4, has a potentially far- reaching
effect on lawyers in the Fourth Circuit because the court had not defined before
who had standing as "next friend" in cases in which a prisoner, like Mr. Hamdi,
who is confined and has no access to a lawyer, could not name his own lawyer.

The court said it would give standing only to someone with a relationship to the
prisoner because otherwise it would open the floodgates to "someone who seeks
simply to gain attention by injecting himself into a high-profile case."

Mr. Dunham said he sought out Mr. Hamdi's case because he believed it was going
to be similar to that of John Walker Lindh, an American accused of supporting
the Taliban and conspiring to kill Americans. Mr. Hamdi was captured while Mr.
Lindh was in Afghanistan.

* * *


June 26, 2002

LAWYERS ARGUE OVER RIGHTS OF CITIZEN CAPTURED IN WAR

By Katharine Q. Seelye

RICHMOND, Va., June 25 -- An appellate judge hearing one of the most closely
watched cases pitting civil liberties against national security seemed favorable
today toward the government argument that an American citizen can be held
indefinitely without being charged with anything or represented by a lawyer.

The case involves Yaser Esam Hamdi, 21, who was born in Louisiana, reared in
Saudi Arabia and captured on the battlefield in Afghanistan. Mr. Hamdi was sent
to Guantanamo Bay, Cuba, until officials discovered he had been born in the
United States, and then moved him to the naval brig in Norfolk, Va. He has been
held there since April 5, not charged with any crime or allowed to see a lawyer,
although a district court has appointed a public defender to represent him.

In oral arguments here before the United States Court of Appeals for the Fourth
Circuit, J. Harvie Wilkinson III, the chief judge, appeared incredulous today at
Mr. Hamdi's lawyer's assertion that his client -- captured during battle and
designated an enemy combatant -- had any constitutional rights.

"What is unconstitutional about the government detaining that person and getting
from that individual all the intelligence that might later save American lives?"
Judge Wilkinson asked Geremy Kamens, an assistant federal public defender
helping to represent Mr. Hamdi.

Mr. Kamens said the Constitution prohibited the indefinite detention of an
American citizen, and Judge Wilkinson was quick to interrupt.

Was he suggesting that the government could not detain a citizen "who has taken
up arms against America?" Judge Wilkinson asked in a voice that suggested he
could not believe his ears.

Mr. Kamens argued that there was no evidence that Mr. Hamdi was actually an
enemy combatant, but the judge came back at him.

Suppose an inquiry established that Mr. Hamdi was an enemy combatant and fought
on the side of the Taliban and Al Qaeda against American forces, Judge Wilkinson
said. "What is unconstitutional about the detention of that individual and
trying to get intelligence from that individual over a period of time, during
the course of hostilities, that would save American lives?"

The judge added that he knew of no previous cases that said it was wrong to
interrogate an enemy combatant who had been captured on the battlefield.

"This has been done in every war that I know of," he said.

The sharp exchange seemed a preview of an argument likely to reach the Supreme
Court in an escalating battle between the rights of American citizens and the
power of the president to detain and interrogate enemy combatants while
hostilities are continuing.

Judge Wilkinson and two colleagues were hearing an appeal by the government of a
lower court ruling that ordered the Navy to give Mr. Hamdi unfettered access to
the public defender. The hearing was conducted by teleconference, because the
judges were dispersed. It was piped through speakers into the federal courthouse
here, where reporters listened in.

The Fourth Circuit, one of the most conservative appellate courts in the
country, could issue its opinion any time.

The government argued in papers filed last week that the lower court judge,
Robert G. Doumar of Federal District Court, was trying to usurp the president's
authority in a time of war and had acted improperly in providing Mr. Hamdi a
lawyer before allowing the government to make its case.

The government's case was argued today by Paul Clement, deputy solicitor
general, who said the courts should not second-guess the president's decision to
hold Mr. Hamdi as an enemy combatant. The judiciary "can answer legal
questions," Mr. Clement said, but further interference would not be "terribly
helpful."

Judge Wilkinson, who asked to see the president's determination of Mr. Hamdi's
status, which has not been made public, said the case posed serious separation-
of-powers issues. But he was far more emphatic in his questioning of and
declarations to the public defender.

Today's vigorous argument "underscores one of my basic problems with this case,"
Judge Wilkinson said. which is that it poses a number of difficult questions and
the lower court appears not to have given them proper attention.

"How in the world could the district court have proceeded to decide all these
questions and potentially pre-empt them by appointing counsel without even
giving the government a chance to be heard?" he asked. "That's what I don't
understand."

Mr. Kamens said the district court's appointment of a lawyer had nothing to do
with the legality of Mr. Hamdi's detention, but Judge Wilkinson replied that the
appointment of counsel was significant.

"If counsel is appointed," he said, "we are deciding, for starters, that someone
who may well be an enemy combatant has a right to counsel, No. 1. That's a major
issue.

"I don't know, for example, how counsel can be separated from access or indeed
from the other rights in the criminal justice system. I don't know how you can
appoint counsel without throwing into jeopardy the government's intelligence-
gathering operation."

The government said, and Judge Wilkinson agreed, that intelligence-gathering
could be disrupted because the introduction of a third party could break the
atmosphere of trust that the government was trying to establish with the
prisoner, particularly if the lawyer urged the prisoner to assert his rights
against compelled self-incrimination.

Judge Wilkinson said the district judge's appointment of counsel had already
"decided four or five mega issues without even giving the other side the chance
to present its case."

* * *


FOREIGN OFFICIALS QUESTION GUANTANAMO PRISONERS

By Elizabeth Becker

WASHINGTON, June 24 -- In an expansion of international cooperation in the war
on terrorism, intelligence agents from several nations have interrogated fellow
countrymen detained by the United States at Guantanamo Bay, Cuba, and shared the
information with the Pentagon.

Without saying which countries have conducted the interviews, the Pentagon said
today that "foreign government delegations have had access to Guantanamo for law
enforcement and intelligence purposes since January."

Officials have attributed new information about terrorist threats to information
gleaned in interrogations at Guantanamo.

Britain, Morocco, Spain and Sweden are among the countries that have sent
officials to Guantanamo to interview their imprisoned citizens, foreign
officials familiar with the intelligence gathering said.

One official said it was often better to have had an intelligence official who
was a native speaker familiar with the prisoner's homeland, from its culture to
the shape of its terrorist networks, questioning detainees rather than an
American official working through interpreters.

By knowing what follow-up questions to pose and what hunches to rely on, these
foreign agents are said to have provided critical help to American
interrogators.

"These interviews are done in close conjunction with American officials, not in
private meetings," said a foreign official, who spoke on condition of anonymity.

Legal experts see this new cooperation as an ad hoc military version of Interpol
but without the legal oversight provided for those arrested on criminal charges.

"We hadn't heard of foreign agents questioning the prisoners before," said
Vienna Colucci of Amnesty International, "but if the goal is to get better
information, then they should be guaranteed their rights and informed of the
charges against them."

Instead, human rights officials said, they had believed that foreign officials
were visiting their citizens held at Guantanamo to ensure that they were not
being mistreated.

The Bush administration has said that although it will not give the detainees
prisoner-of-war status, it will guarantee them protection under the Geneva
Conventions.

At the same time, the-more-than-500 prisoners from at least 33 countries being
held at Guantanamo could have information about the next attack planned by Al
Qaeda. The legal problem is how to solicit that information without compromising
prisoners' rights to a fair trial.

"One minute they're described as suspects, the next minute they're considered
intelligence assets," said Michael Noon, a professor of law at Catholic
University of America. "It's one thing to interrogate for intelligence purposes
and another with a view to prosecuting someone before a military tribunal."

The United States and its allies cooperated on interrogations in World War II
and the Korean and Vietnam Wars, officials said.

By monitoring the interrogations at Guantanamo, American officials should be
able to guarantee that no foreign agent treated a detainee improperly, some
legal experts said.

"I'm 100 percent certain that the standards that the U.S. has imposed as terms
and conditions of detention will be honored in all interrogations," said Eugene
R. Fidell, president of the National Institute of Military Justice.

* * *


WAR ON TERROR MAKES FOR ODD TWISTS IN JUSTICE SYSTEM

By Katharine Q. Seelye

WASHINGTON, June 22 -- In one of the strange turns in the war on terrorism, two
Americans are being held in military brigs without access to lawyers, while two
foreigners accused of terrorist activities are being tried in federal court with
the full range of protections usually accorded to Americans.

This patchwork approach has revealed a flexibility in the justice system but
also what critics call an overly broad assertion of presidential authority.

The government contends it can detain people until the hostilities are over --
whenever that is -- without charging them or giving them access to lawyers. The
dispute is likely to end up before the Supreme Court.

The Americans in prison are Yasser Esam Hamdi, born in Louisiana and raised in
Saudi Arabia, and Jose Padilla, born in Brooklyn and raised in Chicago. A third
American, John Walker Lindh, born in the District of Columbia and raised in
California, is facing a trial.

Mr. Lindh has a high-powered legal team defending him in federal court in
Alexandria, Va., against 10 counts, including conspiring to kill Americans and
supporting terrorist organizations.

Mr. Hamdi, picked up on the battlefield in Afghanistan in November, was sent to
Guantanamo Bay in Cuba then moved to a brig in Norfolk, Va., on April 22 when
the authorities confirmed he had been born in America. He has not been charged.

The government moved Mr. Hamdi from Cuba to the mainland because he was
American, meaning that he had more rights than other Guantanamo detainees. But
now it argues that his citizenship is irrelevant, that he is an enemy combatant
and does not deserve the legal protections most Americans enjoy. The government
is also blocking him from speaking with his court-appointed lawyer.

Government officials said Mr. Hamdi has not been charged because he is being
held for the protection of the country, not for prosecution.

Mr. Padilla was arrested on May 8 and has been in a brig near Charleston, S.C.,
since June 10. He was taken into custody in connection with what officials said
was a plot to build and detonate a "dirty bomb." Mr. Padilla has also not been
charged and has not had access to a lawyer.

The two foreigners jailed on terrorism charges are Zacarias Moussaoui, a French
citizen, and Richard C. Reid, a Briton. Mr. Moussaoui, accused as the "20th
hijacker," has had hearings in federal court in Alexandria, Va., where he is
representing himself. Mr. Reid's case is pending in federal court in Boston.

Some legal experts say the variety of approaches underscores the judicial
system's elasticity. "There is a learning process," said Eugene R. Fidell,
president of the National Institute of Military Justice. "The fact is, there
seems to be an unusual range of options available."

David Cole, a Georgetown University law professor, said that the evidence, or
lack of it, might explain the inconsistencies in treatment. "Where they feel
they can win a criminal case, they'll go the criminal route," Professor Cole
said. "Where they feel they can't, where they don't have the evidence,"
officials put the prisoner in a military brig, he said.

He also suggested that the Lindh case was demonstrating to the government that
public trials for some of these suspects can be tricky. For example, the
government has suggested that Mr. Hamdi, as well as some prisoners in
Guantanamo, may have information that clears Mr. Lindh. The judge in Mr. Lindh's
case, T. S. Ellis III, has told the defense lawyers that they can talk to Mr.
Hamdi if Mr. Hamdi's lawyer agrees, but the government is not agreeing that Mr.
Hamdi even has a lawyer.

Judge Ellis said denying Mr. Lindh access to a witness who could clear him would
violate his rights. He also told government prosecutors that at some point, they
would have to decide whether to go ahead and prosecute Mr. Lindh, which would
mean giving him access to Mr. Hamdi, or whether the need to keep Mr. Hamdi
isolated was so overwhelming that they would drop their case against Mr. Lindh.

Others say the multiple approaches have exposed an overreaching of presidential
authority. Michael Posner, executive director of the Lawyers Committee for Human
Rights, said that the government's stance in the Hamdi case showed "that
Americans now have less protection under the law than several of the noncitizens
accused of taking action against the U.S."

Administration officials said their treatment of the Americans in captivity was
proper. "We've been very careful about each one of these guys under the
circumstances and feel very comfortable about the legality of what we're doing,"
one senior official said.

He emphasized that the purpose of detaining Mr. Hamdi and Mr. Padilla was not to
prosecute them but to keep them from rejoining any anti-American forces.

"This is not a punitive action, it's self-protection," he said.

In papers filed on Wednesday in the Hamdi case in the United States Court of
Appeals for the Fourth Circuit in Richmond, Va., the government argued that
anyone detained in connection with the war on terrorism was an enemy combatant
and had no right to a lawyer.

Mr. Hamdi's lawyer, Frank W. Dunham Jr., argued that the government presented no
evidence that Mr. Hamdi was an enemy combatant.

The executive branch, Mr. Dunham said, "does not have the authority to detain an
American citizen incommunicado and to unilaterally withdraw from the courts the
power to inquire into the propriety of his detention."

The government's arguments in the Hamdi case startled legal experts and stirred
critics who had quieted down after a confrontation about military tribunals.

"The route they have created in this ad hoc way is devoid of any constraint on
the president's power," Mr. Cole said. "The notion that he can pick people up
off the street, label them and lock them up for the rest of their lives without
a hearing is a remarkable one."

It also prompted some, like Douglas W. Kmiec, dean of the law school at Catholic
University and a professor of constitutional law, to suggest that perhaps
President Bush should amend the Nov. 13 order that set up the military
tribunals.

President Bush issued the order before the government knew it would find
Americans suspected of involvement with foreign terrorists; the order
specifically exempted Americans from a tribunal's jurisdiction.

That exemption was a concession to make the tribunals politically palatable to
critics in Congress.

But Mr. Kmiec said that including Americans in the tribunal system would give
the prisoners a legal forum and would deflect criticism that the United States
was undermining a basic tenet of its judicial system.

"Everyone is legitimately concerned when a U.S. citizen can be detained without
charge and without access to counsel," Mr. Kmiec said. "It perplexes federal
judges."

Mr. Kmiec, who led the office of legal counsel in the Reagan administration and
the first Bush administration, said he had broached the idea with current
administration officials.

"They know there is an anomaly in the process about how different people are
being treated, and they are worried there will be more," he said.

Senior administration officials, however, said no amendment of the order was
being considered.

No tribunals have been held, and do not seem imminent, in part, officials said,
because the government is trying to get information from the prisoners, not
punish them.

"We're not in the criminal justice business, we're in the national defense
business," said a top administration official. "First things first."

Mr. Dunham, Mr. Hamdi's lawyer, remains concerned about what he calls the
"uneven" treatment. He said that Mr. Lindh seemed to be better off than his
client because at least Mr. Lindh was accused of something and could defend
himself.

"Our client hasn't been charged with any crime, and the government says that
since they haven't charged him with a crime, they can hold him forever," he
said. "It seems to be a little strange. A guy is worse off if he's not charged
with a crime."

* * *

June 21, 2002

LAWYER CHALLENGES ISOLATION OF AMERICAN-BORN PRISONER

By Katharine Q. Seelye

WASHINGTON, June 20 -- A court-appointed lawyer for an American-born detainee
today challenged the government's claim that it could hold him without giving
him access to a lawyer or charging him with anything.

In a broad assertion of presidential authority that could ultimately be tested
in the Supreme Court, the government said in court papers on Wednesday that
anyone it designated an "enemy combatant" did not have to be provided the legal
protections accorded most American citizens. Further it said, the courts have no
authority to interfere with such decisions.

The case involves Yaser Esam Hamdi, who was born in Louisiana and raised in
Saudi Arabia. He was taken into custody on the Afghanistan battlefield, sent to
Guantanamo Bay, Cuba, and from there moved in April to the naval brig in
Norfolk, Va. He has been in isolation ever since, with no charges against him
and no access to a lawyer. A federal district judge has ruled that he should be
allowed that access, but the government has appealed to the United States Court
of Appeals for the Fourth Circuit, in Richmond, Va.

In a brief filed with the appeals court today, his court-appointed public
defender, Frank W. Dunham Jr., urged that the government's designation of Mr.
Hamdi as an enemy combatant be overturned. The brief asked that Mr. Dunham and
Robert J. Wagner, assistant federal public defender, be allowed to meet with Mr.
Hamdi immediately.

The executive branch, Mr. Dunham said, "does not have the authority to detain an
American citizen incommunicado and to unilaterally withdraw from the courts the
power to inquire into the propriety of his detention."

The brief said the Justice Department had submitted no evidence that Mr. Hamdi
had ties to any terrorist organization, and no finding that he was in fact an
enemy combatant.

It also asked that the court hear oral arguments, given the importance of the
case. The government's appeal, the public defenders said, "raises significant
constitutional questions relating to the power of the executive branch of the
United States government to detain American citizens indefinitely without
permitting access to counsel or to the federal courts."

* * *

U.S. DEFENDS LIMITS ON AMERICAN IN CUSTODY

By Katharine Q. Seelye

WASHINGTON, June 19 -- The government argued today that it was perfectly legal
to hold an American citizen in custody without filing charges against him and
without giving him access to a lawyer.

Paul J. McNulty, the United States attorney for the Eastern District of
Virginia, made the argument in connection with Yaser Esam Hamdi, who was born in
Louisiana, raised in Saudi Arabia and captured on the battlefield in
Afghanistan. Mr. Hamdi was held in Guantanamo Bay, Cuba, and transferred to the
naval brig in Norfolk, Va., in April after the authorities confirmed that he had
been born in the United States.

A lower court ruled that Mr. Hamdi could have unfettered access to a court-
appointed public defender, but the United States Court of Appeals for the Fourth
Circuit has twice prevented that.

In papers filed today, Mr. McNulty challenged the lower court ruling, saying
that "it is well-settled that the military has the authority to capture and
detain individuals whom it has determined are enemy combatants" and that such
combatants "have no right of access to counsel to challenge their detention."

Such people, he said, can be detained for the duration of the conflict, and
their American citizenship is not relevant. Mr. McNulty quoted a 1956 appellate
decision that said a petitioner's American citizenship does not "confer upon him
any constitutional rights not accorded any other belligerent under the laws of
war."

Mr. McNulty said the courts had no business interfering with the decision of the
military and the president regarding enemy combatants.

In addition, he said, the lower court's order to allow Mr. Hamdi unfettered
access to a lawyer "jeopardizes compelling national security interests" in two
ways. First, he said, it is "likely to interfere with if not irreparably harm
the military's ongoing efforts to gather intelligence" that may "help protect
the homefront from further attacks."

Second, he said, terrorists have trained their adherents "to pass concealed
messages through unwitting intermediaries."

The court-appointed public defender, Frank W. Dunham Jr., is to respond to these
arguments on Thursday. Mr. Dunham has argued before that Mr. Hamdi is entitled
to representation and should be charged if he is to be detained. So far, Judge
Robert G. Doumar of Federal District Court in Norfolk has sided with him.

In another development, a federal grand jury in Virginia made slight alterations
today in the indictment of Zacarias Moussaoui, the only person charged in the
Sept. 11 terrorist attacks, by dropping charges dealing with crop-dusting
equipment and by expanding the number of countries in which he is said to have
worked.

The so-called superseding indictment issued today by the grand jury in
Alexandria, Va., left in place the six major terrorism charges against Mr.
Moussaoui, who is acting as his own trial lawyer.

The indictment was made public this evening, and federal prosecutors did not
return phone calls to explain why the grand jury had sought the new indictment,
which replaces an indictment issued last December.

Defense lawyers who have been assigned to assist Mr. Moussaoui said the only
significant change in the indictment might be the addition of Malaysia,
Singapore and Indonesia to the list of countries cited where Al Qaeda operated.

* * *

June 16, 2002

Opinion Column

CITIZENS, COMBATANTS AND THE CONSTITUTION

By Laurence H. Tribe

CAMBRIDGE, Mass.
The Bush administration's legal treatment of American citizens said to be active
members of Al Qaeda has been anything but consistent. Two such Americans have
been arrested in Afghanistan; one, John Walker Lindh, is being tried in federal
court for assisting in the murder of American soldiers, while the other, Yasser
Esam Hamdi, is being held by the military and has yet to be charged with a
crime. Meanwhile, Jose Padilla, who is the first of these "Qaeda Americans" to
be apprehended in the United States, was initially detained by the Justice
Department, then transferred to a military jail.

The debate over the treatment of these suspects has centered on whether they
must be tried promptly or can be detained indefinitely on the president's mere
say-so. This is a false choice. While the Bush administration certainly has the
right to argue that these citizens are enemy combatants and thus may be
imprisoned for the duration of the war, it also has the obligation to defend its
position in federal court.

The case of Mr. Padilla, who is a suspect in a plan to detonate a radioactive
bomb in the United States, rightly concerns many civil libertarians. All
citizens have the right to know the reasons they are being held, and if no
adequate reasons are forthcoming, to be promptly released. If they are charged
with a crime, they have the constitutional right to a speedy trial. But
demanding a trial in these circumstances, where someone like Mr. Padilla would
almost surely be found guilty, carries a high cost for civil liberties: it would
stretch the meaning of already elastic concepts like criminal conspiracy to the
point of creating what would amount to thought crimes.

However the decision to detain Mr. Padilla is rationalized, it seems clear that
releasing captured soldiers who belong to an enemy force committed to the murder
of American civilians -- whether that force is the army of a nation-state or of
a transnational organization like Al Qaeda -- is suicidal. But the Bush
administration is wrong when it claims that anyone, alien or citizen, may be
detained indefinitely as an enemy combatant based on the president's unilateral
judgment that the detainee was a participant in the enemy force that attacked
the country Sept. 11.

To be sure, Congress has authorized the president to use "all necessary and
appropriate force . . . to prevent future acts of international terrorism
against the United States" by those responsible for the attacks of Sept. 11. But
this authorization does not imply unchecked presidential power; to accept such
an interpretation would be to abandon the Constitution's system of checks and
balances for nothing more than the promise of presidential wisdom and self-
restraint.

The gap between the poles in this debate can be narrowed by recognizing that
detention by military authorities may indeed be constitutional -- but only if
review by a federal court confirms the executive's assertions that the people it
detains are in fact enemy combatants. And the courts must take care to define
"enemy combatant" with precision.

In habeas corpus hearings in these cases, the need for confidentiality may
prevent parts of the proceedings from being open to the press and public. And
even in closed hearings, judges will sometimes have to make do with imperfect
information. Still, the task seems manageable if we remember that the issue is
neither the detainee's guilt nor the degree of danger the detainee poses. It is
simply whether the detainee's status as an active member of an enemy force is
supportable.

The Geneva Conventions and our Constitution make clear that any member of an
enemy force with which we are engaged in armed combat may, upon capture, be held
in military confinement for as long as hostilities persist. But the rationale
for such imprisonment is narrow: it must be strictly to prevent a prisoner from
returning to the war against our nation and its people. (Secretary of Defense
Donald Rumsfeld's assertion that the United States is holding Mr. Padilla
because it is "interested in finding out what he knows" is not legally
persuasive.)

The administration cites court decisions from 1942 and 1946 in support of
military detention of enemy combatants who are United States citizens. But
there's an obvious point worth noting: these decisions arose only because the
federal courts were considering the constitutional claims of the detainees in
the first place. In both cases the courts upheld military jurisdiction, and in a
justly infamous 1944 decision the Supreme Court upheld the evacuation of
Americans of Japanese ancestry from their communities. But the court, in a
little-remembered decision issued the same day, also held that the continued
detention of Japanese Americans -- absent any proof of disloyalty -- was
illegal.

In recent weeks, the Bush administration has appealed a federal court ruling
that the government may not hold someone indefinitely as a material witness and
it has appealed another decision that no detainee may be denied access to an
attorney. If, in the same spirit, it were to challenge the jurisdiction of the
courts to test the legality of its military detentions -- or were to accept that
jurisdiction but render it meaningless by continuing to prevent attorneys from
meeting privately with these clients -- the administration would be short-
sighted indeed.

For our government to retain its legitimacy, its conduct must always be subject
to challenge in a court of law. Nor can this judicial review be an empty
gesture; lawyers must be allowed ample access to those the government would
detain. It is the threat -- and the promise -- of judicial intervention that
keeps executive power from veering into tyranny.

* * *


June 13, 2002

FATHER ASKS COURT FOR SON'S RELEASE

By The Associated Press

Filed at 12:02 a.m. ET

NORFOLK, Va. (AP) -- The father of an American-born prisoner held without charge
since his capture in Afghanistan has petitioned a court to order the federal
government to release his son.

In his petition, Esam Fouad Hamdi also asked the court to appoint an attorney
for his son, saying neither has the money to pay for one.

Hamdi said he has had no contact with Yaser Esam Hamdi, 21, since his son's
capture in Afghanistan following a November prison uprising. The petition was
dated Saturday and ordered filed by a federal judge on Tuesday.

U.S. District Judge Robert Doumar on Tuesday added to the case a petition for
Yaser Esam Hamdi's release previously filed by Virginia's federal public
defender. It argues that Hamdi is an American citizen being held in violation of
his constitutional rights.

Doumar also again ordered the federal government to allow Hamdi to meet
privately with attorneys. He gave the government until 5 p.m. Friday to appeal
to a higher court.

A federal appeals court previously issued an emergency stay to stop Hamdi from
meeting his lawyer by June 1 as Doumar initially had ordered. The 4th U.S.
Circuit Court of Appeals in Richmond heard arguments in the case on June 4 but
has not ruled.

Doumar also extended his deadline to noon Monday for the government to explain
in writing why Hamdi should not be released.

"The real issue is whether this man can have counsel in a proceeding designed to
determine why he is being held," said Frank Dunham Jr., chief federal public
defender, who was appointed to represent Hamdi.

The government has maintained that as a captured enemy combatant, Hamdi can be
held indefinitely but is not entitled to a lawyer, since he has not been
charged.

A spokeswoman for the U.S. attorney's office said no one was available to
comment Wednesday.

Hamdi has been held incommunicado in the Norfolk Naval Station jail since early
April.

He was taken with the others to the Navy base at Guantanamo Bay, then
transferred to the United States when it was discovered that he was born in
Louisiana. His parents are from Saudi Arabia, and Hamdi moved with them to Saudi
Arabia as a child.

* * *


June 12, 2002

NY Times Editorial

DIRTY BOMBS AND CIVIL RIGHTS

The word from Washington yesterday was that Abdullah al-Muhajir, the American
citizen accused of plotting a "dirty bomb" attack on the United States, may
never be given a trial, or at least not anytime soon. "We are not interested in
trying and punishing him at the moment," Secretary of Defense Donald Rumsfeld
declared yesterday. "We are interested in finding out what he knows." What the
Bush administration must realize is that its job, even during these challenging
times, is to do both: to investigate terrorism while also protecting the
constitutional rights of those caught in the dragnet.

Mr. Muhajir is an American of Puerto Rican descent who was born Jose Padilla in
Brooklyn, grew up in Chicago and changed his name as part of his conversion to
Islam. Federal law enforcement officials contend that he became part of Al
Qaeda's terrorist network, and that he talked with network leaders in Pakistan
and Afghanistan about a plot to build and detonate a radioactive bomb. Mr.
Muhajir was taken into custody on May 8 at O'Hare International Airport in
Chicago, upon returning from Pakistan.

It is difficult, at least at this point, to gauge the strength of the case
against Mr. Muhajir. He was picked up on a material witness warrant and has not
been charged with any crime. Law enforcement officials concede that whatever he
might have been plotting never got beyond the discussion stage. So far, the
government has produced no evidence that a dirty-bomb plot existed, or of Mr.
Muhajir's role in one. We do, however, have President Bush's assurance, given
when he was meeting with members of Congress at the White House yesterday, that
"This guy Padilla is a bad guy."

If Mr. Muhajir's case had proceeded along the normal criminal-law path, it would
have triggered procedures designed to protect his rights. He was scheduled for a
hearing yesterday at which prosecutors might have had to decide whether to
charge him with a crime. And he would have been able to challenge his detention;
a federal judge in New York ruled recently that material witnesses cannot be
held indefinitely. Instead the government chose to label Mr. Muhajir, who is now
in a high-security jail in South Carolina, an "enemy combatant." The
administration contends that merely by labeling him in this way, it can hold him
indefinitely.

The government's position is unacceptable. Our Constitution guarantees that
those suspected of crimes must be informed of the charges against them, be able
to confront their accusers, consult with a lawyer and have a speedy and open
trial. But that means very little if the government can revoke all those rights
merely by labeling someone a combatant. And as Mr. Mujahir's case shows, the
government is prepared to strip away the rights of American citizens as readily
as those of foreigners.

The real problem with the government's approach is one that has been evident
since Sept. 11: The Bush administration has too little faith in the criminal
justice system. The government must be vigilant about fighting terrorism, but
this war can be waged without suspending the Constitution

* * *


June 11, 2002

LEGAL QUESTIONS ON U.S. ACTION IN BOMB CASE

By Adam Liptak

For a nation still finding its way in the fight against terrorism, the case of
Jose Padilla, also known as Abdullah al-Muhajir, poses a host of legal questions
and contradictions.

Mr. Padilla, who is accused of planning to explode a radioactive device, is an
American citizen. He has been in custody since May 8 but has not been charged
with a crime. He is, instead, being held as an "enemy combatant."

While the government cites a 1942 Supreme Court precedent on military tribunals
to justify his detention, the military tribunals currently authorized explicitly
exclude Americans. All this leads some legal experts to fear that Mr. Padilla's
detention by the military is a pretext to keep him isolated indefinitely.

The Supreme Court case involved Nazi saboteurs who arrived by submarine in New
York and Florida in June 1942, carrying bombs, incendiary devices, maps and
cash. One of them, Herbert Hans Haupt, claimed American citizenship.

The Supreme Court, which heard a challenge to the military tribunal convened to
try the men, said that made no difference.

"Citizens who associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this country bent on
hostile acts, are enemy belligerents," the justices wrote in a unanimous
decision.

All eight men were convicted. Mr. Haupt and five others were executed only two
months after they were captured.

The case suggests that the government is free to try Mr. Padilla before a
military tribunal, said Ruth Wedgwood, a law professor at Yale.

"If you go to war against your country, you do not have rights to a jury trial,"
Professor Wedgwood said. "And the answer to the practical question is that we
are at war."

But the regulations governing military tribunals issued in November do not apply
to citizens.

Eugene R. Fidell, the president of the National Institute of Military Justice,
said this reflected both a failure of imagination by the drafters of the
regulations and an assessment of what the nation would find politically
palatable.

"What everyone thought was extremely improbable turns out not to be improbable,"
Mr. Fidell said, referring to the possibility that Americans would be allied
with Al Qaeda. Moreover, he said, "reviving a kind of tribunal that hadn't been
used in half a century was quite a lot to bite off in the first place."

Experts say there is little question that the government has the authority to
revise the regulations and try Mr. Padilla before military tribunals under the
1942 decision. In the meantime, though, the decision to allow the military to
hold him is controversial.

"The decision to detain him indefinitely under this new category of enemy
combatant is intriguing," said Laurence H. Tribe, a law professor at Harvard.
"It is a source of concern, but the constitutional question it presents is
deeply perplexing, given that the Constitution is not a suicide pact."

Professor's Tribe's reference to a suicide pact was an echo of a similar
sentiment in a 1949 dissent by Justice Robert Jackson of the Supreme Court. Both
men meant that the protection of liberty cannot be at the expense of the
nation's security.

Still, some lawyers were wary of the government's actions.

Harold Hongju Koh, a law professor at Yale, said, "If calling people enemy
combatants is another way of holding American citizens indefinitely, it's
extremely troubling. If they can charge him with a crime, they should try him."

Until Sunday, when the Justice Department transferred Mr. Padilla to Defense
Department custody, he was held as a material witness in New York. He was
transferred to a Navy jail in Charleston, S.C.

The move may have been related to a recent decision by a federal judge in New
York in a separate case. The judge, Shira A. Scheindlin, held that the material
witness law cannot be used to hold people indefinitely in criminal
investigations.

"Relying on the material witness statute to detain people who are presumed
innocent under our Constitution in order to prevent potential crimes is an
illegitimate use of the statute," Judge Scheindlin wrote.

People charged with crimes may be held for trial, of course, but the government
may not be prepared to charge Mr. Padilla and may be uncomfortable with the
disclosures it would have to make to him and at a trial if it charged him with a
crime. It also may be uncomfortable permitting him to communicate with a defense
team.

In its case against John Walker Lindh, an American citizen who has been charged
with conspiring to kill Americans, the government has been willing to take those
risks. Mr. Lindh is to be tried in federal court in Virginia.

Professor Koh said, "Lack of hard evidence or unwillingness to recognize that
Padilla has the legal rights afforded to other American criminal defendants
accused of plotting mass killings do not strike me as compelling reasons to
label him an enemy combatant."

Peter J. Spiro, a law professor at Hofstra University, said the government might
have an ulterior motive. "I think they are trying to buy incommunicado detention
with the enemy combatant designation, that is, away from lawyers and media,"
Professor Spiro said.

A second man claiming American citizenship, Yasser Esam Hamdi, is also being
held by the military as an enemy combatant. The government is appealing a
decision by a federal judge that would give Mr. Hamdi access to a lawyer.

Military detentions raise hard questions, Professor Wedgwood said.

"What is the standard of information, evidence or proof to determine who is a
combatant?" Professor Wedgwood asked. "How do you certify someone into the
system?"

* * *


June 10, 2002

NY Times Editorial

JUSTICE DETAINED

The Bush administration's post-Sept. 11 assault on civil liberties reached a new
low recently when the Justice Department argued in court that an American-born
detainee, who may be a United States citizen, should not be allowed to talk to a
lawyer. This is the same Justice Department that has refused to release the
names and locations of the estimated 1,200 people detained after Sept. 11, and
that has insisted on conducting detainees' legal hearings in secret. These
policies are blatantly unconstitutional, and in recent rulings, courts have
begun saying just that.

The administration likes to present its harsh detainee policies as aimed
exclusively at foreigners. But the case of Yasser Esam Hamdi shows that American
citizens may be no less vulnerable to having their rights erased. Mr. Hamdi, a
prisoner from the Afghanistan war, was born in the United States, and although
his family later took him back to Saudi Arabia, he may never have given up the
American citizenship he was born with. Mr. Hamdi was held in Guantanamo Bay
until the citizenship issue was raised, and then he was transferred to a
domestic prison. It appears that Mr. Hamdi has a Sixth Amendment right to be
represented by counsel. But the Justice Department has blocked attempts by the
Virginia federal public defender's office to meet with him. That is
indefensible. A Federal District Court in Norfolk ruled the public defender
should be allowed to see Mr. Hamdi, but the Justice Department has appealed. The
Court of Appeals for the Fourth Circuit should quickly affirm the court's
decision.

The Justice Department has also received a well-deserved judicial rebuke for its
policy of refusing to release the names of detainees. Secret imprisonment
conjures up Kafka novels, and nonfiction stories of life in a police state. The
government argues that the information could help Al Qaeda, by letting it know
which operatives are in custody. But it is more plausible that the terrorist
network would realize that operatives it has been unable to contact are likely
in jail. In March, a New Jersey state court held that the public must have
access to records of detainees being held in New Jersey. That decision is headed
for appeal, and should be affirmed. In Washington, Judge Gladys Kessler of
Federal District Court heard arguments last week in a similar lawsuit. She
should use the case to order release of the names and locations of detainees
nationwide.

Another right infringed by the Justice Department's policy toward detainees is
the nation's proud tradition of open trials. The government has barred, on
national security grounds, the press and members of the public from immigration
hearings for immigrants detained after Sept. 11. In sensitive cases, the
government can seek to protect particular pieces of evidence. But there is no
basis for the sweeping approach the government has adopted. In recent weeks,
federal courts in New Jersey and Michigan have ruled against the federal
government's across-the-board policy of closed hearings. Other courts around the
country should follow those sensible precedents.

The number of post-Sept. 11 detainees has fallen to about 100, as detainees have
been deported or, in some cases, freed. But as the war on terrorism continues,
it seems inevitable that their ranks will increase again. Making public the
names of detainees, holding open immigration proceedings and providing access to
counsel are not legal niceties -- they are fundamental parts of our system of
justice. The Bush administration should rethink its policies toward the
detainees. If it does not, the courts will have to continue educating the
administration on the law, and will have to keep striking those policies down.

* * *

June 1, 2002

U.S. ARGUES WAR DETAINEE SHOULDN'T SEE A LAWYER

By Katharine Q. Seelye

ALEXANDRIA, Va., May 31 - The government argued today that Yasser Esam Hamdi, a
prisoner from the Afghan war who was born in Baton Rouge, La., and is in custody
in Norfolk, should not be allowed to see a lawyer for national security reasons.

Mr. Hamdi, 22, reared in Saudi Arabia, was in United States custody in
Guantanamo Bay, Cuba, before being transferred on April 6 to Norfolk, after
officials learned that he might hold dual American and Saudi citizenship. He has
not been charged with any crime and has not been allowed to see a lawyer on the
grounds that he is an enemy combatant.

A lower court ruled that Mr. Hamdi could see a public defender, Frank W. Dunham
Jr., on Saturday. But the United States attorney here, Paul J. McNulty, sought
today to block that meeting in an appeal to the United States Court of Appeals
for the Fourth Circuit. It is not clear when the court might rule.

On behalf of Defense Secretary Donald H. Rumsfeld, Mr. McNulty said any meeting
between an enemy combatant and a lawyer could let vital information be
transmitted, albeit unwittingly, to terrorists.

"It is well known that an Al Qaeda training manual provides instructions for
passing concealed messages to fellow terrorists from behind bars after capture -
even through unwitting intermediaries - and that Al Qaeda members and their
supporters deploy techniques of stealth and secrecy, including codes and 'hidden
messages' to further their efforts," the government wrote in papers filed this
afternoon.

Moreover, the papers said, contact with an outsider could disrupt the
interrogation by interfering with the government's effort to build up trust with
those being interrogated.

Mr. Hamdi's case was raised at a pretrial hearing for John Walker Lindh, a
Californian also taken into custody in November after the fall of Mazar-i-
Sharif. Mr. Lindh's lawyers are seeking access to Mr. Hamdi because they say he
has information that might help clear Mr. Lindh of charges that he conspired to
kill Americans or provided help to the Taliban and Al Qaeda.

Judge T. S. Ellis 3rd of Federal District Court, presiding in Mr. Lindh's case,
told his lawyers that if they wanted access to Mr. Hamdi they should ask Mr.
Dunham for it.

Mr. Dunham said this afternoon that he did not know whether a visit with Mr.
Lindh's lawyers would be in Mr. Hamdi's interest. "Until I meet the gentleman,"
Mr. Dunham said, "I haven't got the foggiest idea."

He also raised the possibility that Mr. McNulty's effort to block access to his
client "is an attempt to block Lindh's access" to Mr. Hamdi. Mr. McNulty is also
prosecuting Mr. Lindh for the government.

At the lengthy hearing, Mr. Lindh's lawyers suggested that a reporter who
interviewed Mr. Lindh for CNN in Afghanistan was acting on behalf of the United
States government and that the interview should not be used against him in his
trial.

In the interview, Mr. Lindh said that he had "become attached to" the Taliban
movement and "wanted to help them one way or another."

The reporter, Robert Young Pelton, who was freelancing for CNN, said today from
his home in California that he was in no way acting on behalf of the government.
He said a member of the Green Berets accompanied him because he wanted to ensure
that Mr. Lindh had medical treatment.

* * *

May 1, 2002

MORE DETAINEES ARRIVE IN GUANTANAMO

By The Associated Press
Filed at 4:27 p.m. ET

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- Shackled and wearing orange jumpsuits
and goggles, 32 detainees arrived on this bleak outpost Wednesday -- the first
large group of arrivals in more than two months.

The detainees were led off the C-17 military plane as a battalion of guards and
soldiers in riot gear backed by armed Humvees stood by on alert.

The detainees waddled off the plane in groups of four led by guards, who checked
for contraband in their shoes, mouths and jumpsuits. Two fell to their knees as
guards kicked their legs apart. It was unclear whether the men struggled first
with the guards.

Journalists were allowed to watch the arrivals from about 100 yards away but
were not allowed to film the event.

The arrivals bring the total number of detainees to 332 from more than 30
countries at Camp Delta, the permanent prison where they will be held until
authorities decide whether to send them back to their homelands or try them for
unspecified crimes in military tribunals.

"It appears we had a very smooth and efficient operation," said Maj. James Bell,
a spokesman for the detention mission.

The new arrivals come as the U.S. government intensifies its interrogation
process, hoping to further its search for renegade Taliban and al-Qaida members
and the elusive Osama bin Laden, the Saudi exile the United States blames for
the Sept. 11 terror attacks.

"From an interrogation seat, all the appropriate steps and measures are being
taken to turn the interrogations up a notch," Capt. Riccoh Player, a Pentagon
spokesman, said in an interview Tuesday.

White buses shuttled the detainees to a ferry that carried them to the seaside
Camp Delta.

Until last weekend, detainees had been staying at Camp X-ray, a makeshift
facility of chain-link cells where the men could see and communicate with each
other. They could also shout complaints at visiting journalists who were driven
around the camp perimeter.

At Camp Delta, the men have less contact with each other. Except for a window in
each cell, the camp is cloaked by netting. Journalists no longer can see the
inmates.

Officials think the isolation may make them talk, Player said.

Since the first prisoners arrived in January, the population has grown to
represent at least 33 nationalities. Detainees speak several languages and
dialects and represent at least two religions, Islam and Christianity.

It was unclear whether more nationalities were represented with Wednesday's
arrivals.

The last detainee to arrive at the outpost on Cuba's eastern tip was a lone
detainee the Zambian government had handed over.

Few details were available on the captive, who arrived April 20, other than he
was in good medical condition. He was the only prisoner to be flown to
Guantanamo Bay alone. The others came in groups of about 30 in a series of
flights in January and February.

On April 5, Yasser Esam Hamdi, the only known American-born prisoner brought to
Guantanamo, was flown back to the United States.

Hamdi, 22, was captured with fighters of the former ruling Taliban militia and
the al-Qaida terrorist network. He was removed from Guantanamo after records
showed he was born in the United States.

* * *


April 27, 2002

MEDIA ACCESS DENIED IN GUANTANAMO

By The Associated Press
Filed at 6:29 p.m. ET

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- Hundreds of detainees in the war on
terrorism may soon be moved from their makeshift prison to a new $16.4 million
facility, but the U.S. military, citing security concerns, does not want the
outside world to see.

Military spokesman Maj. James Bell confirmed Saturday that construction has
finished on the new 408-cell seaside detention center, Camp Delta, but the
military has denied media requests to view the transfer of 300 suspected al-
Qaida and Taliban fighters over a distance of a few miles to the new camp.

"The policy is that we will not comment on the movement of detainees -- period
-- until any movement has taken place," Maj. Lee Reynolds said Friday without
elaborating.

Another base spokesman, Navy Lt. William Breyfogle said the policy is "based on
guidance from higher command," but he did not elaborate.

The new camp will give detainees metal beds with mats, flush toilets, wash
basins and exercise areas. In Camp X-ray, detainees have foam pads on a concrete
floor and must be led out of their cells to use portable toilets or showers.

The opening of the new camp on Cuba's southeast coast, originally set for April
12, has been delayed because of last-minute changes. The new facility could
eventually be expanded to have more than 2,000 cells.

Breyfogle said he had "no information of any detainee movement."

Red Cross workers who visited detainees in Camp X-ray Friday night said there
were no signs indicating a move was about to happen.

Camera crews under military escort were allowed to film the outside of Camp
Delta as late as Thursday. Construction workers and soldiers, but no detainees,
were inside.

Journalists also were allowed to view and photograph detainees Thursday at the
temporary facility, Camp X-ray, from several yards away.

Earlier this month, the military withdrew media access to a field hospital where
detainees receive medical care. Previously, journalists were allowed to
routinely tour the compound.

* * *

April 27, 2002

GUANTANAMO MENTAL DISORDERS DOUBLE
By The Associated Press
Filed at 2:50 a.m. ET

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- They pace like caged animals and stay
awake all night under the glare of spotlights. They scream at the world -- when
they're not staring into space.

Months of confinement in crude, chain-link cells at Camp X-ray have left its 300
detainees from the war on terrorism at best a little stir crazy, at worst,
suicidal.

"A couple have had those thoughts, but none have acted on it," said Navy Lt. Pam
Herbig, a psychiatric nurse at this remote U.S. outpost on Cuba's eastern tip.

So far, 13 suspected Taliban and al-Qaida fighters have been put on medication
for mental disorders ranging from post-traumatic stress disorder to the early
stages of schizophrenia, Herbig said. The total has nearly doubled in recent
weeks.

The patients "have had trouble sleeping," she said. "They're anxious. They have
a lot of ruminations. There's sadness."

Muslim chaplain Abuhena M. Saiful-Islam -- who had frequent contact with the
detainees before leaving the base last week -- described growing dismay over
what detainees consider cruel and inhumane conditions.

U.S. military commanders say detainees flown here since Jan. 11 are well-fed,
free to practice their religion and get good medical care.

"The standard of care is the same for detainees as we have for our own people,"
said Navy Capt. Samuel Alford, head of a field hospital for detainees.

But Lt. Col. Bill Kline, commander of Camp X-ray, conceded some "may be
depressed. They've been asking, 'When am I going to trial? When am I going to
get out of here?"'

Herbig suggested some of the 13 detainee's problems stemmed not from battle
trauma or Caribbean confinement but from troubled backgrounds.

"We're talking about long-standing, childhood-type issues that makes them more
susceptible to depression," she said, without giving details.

Alford has said the psychiatric team is not trained to understand the
complexities of cultural differences that may accompany some disorders.

As a result, he said, some detainees are prescribed anti- depressant or anti-
psychotic drugs rather than counseled.

Military police are under strict orders not to strike up conversations with the
detainees but have monthly briefings on spotting signs of mental illness.

"We've been trained on what to look for -- what would be normal under these
conditions and what would be extreme," said Army Capt. John Wales.

Not sleeping or eating for no obvious reason raises concerns that detainees may
need psychiatric treatment. Wild mood swings, hostility and hunger strikes
protesting conditions don't, officials said.

"One minute, they'll be sitting there quietly. The next, they'll be yelling for
no reason," Wales said. "They're just releasing anxiety."

Some guards have reported that a few detainees have threatened to kill them if
they get the chance, or have thrown things at them. In those instances, the
soldiers "just walk away," Kline said.

Dozens of detainees went on a hunger strike at the end of February to protest
their indefinite detention. The numbers dwindled to two detainees who were
forcefully fed about two weeks ago. The two have not eaten for 11 days but are
drinking water.

"If you're a human being, you can't help but feel sorry for them on some level,"
Wales said.

Saiful-Islam said many captives feel better about an upcoming move to Camp
Delta, the permanent detention facility where cells are smaller than at Camp X-
ray but have ventilation, metal beds with foam pads and flushing toilets.

Still the chaplain said, "My expectation is that as the time goes on you'll see
more depression."

* * *

April 25, 2002

EU BODY: U.S. MUST FOLLOW LAW
By The Associated Press
Filed at 12:25 p.m. ET

BRUSSELS, Belgium (AP) -- The European Union Parliament urged the United
States on Thursday to adhere to international laws in its treatment of
Taliban and al-Qaida suspects detained at the U.S. naval base of Guantanamo
Bay in Cuba.

The European Parliament voted 439 to 10, with 59 abstentions to pass its
annual world human rights report, which highlighted the threats to
individual rights in the war against terrorism.

While condemning all forms of terrorism, the EU assembly said in a
statement "terrorism must not in itself lead to breaches of human rights."

"The fight against terrorism can in turn lead to human rights violations,
be used as a pretext for governments to violate human rights, silence
critics or eliminate opposition," the parliament said.

It criticized a decision by President Bush to set up military-run courts
behind closed doors to try the prisoners at Guantanamo Bay, who now number
300. The legislature said such a move was "in contravention of provisions
for a fair trial as guaranteed by the International Covenant on Civil and
Political Rights, to which the U.S. is a party."

The parliament also demanded U.S. officials seek to give the prisoners at
Guantanamo Bay prisoner-of-war status, and provide international
reassurances that those charged will be given a fair trial.

The EU report said "waving the anti-terrorism banner" was being used to
justify repression in the ongoing conflict between Israelis and
Palestinians, and also cited Russia's ongoing military campaign in
Chechnya, China's actions against Xinjiang Muslim separatists and media
repression in Zimbabwe.

"In the name of a military victory, Western countries tend to abandon
their values by turning a blind eye to human rights abuses perpetrated by
some of their new allies in the fight against terrorism," the report said.

The assembly also called on EU governments to put human rights
considerations into all their relations with other countries. It
specifically called for the EU to draft a list of countries that violate
international child labor laws and called on them to introduce a joint
position on fighting child prostitution.

* * *

April 23, 2002
NY Times Editorial

WINGING IT AT GUANTANAMO

The Bush administration's misguided effort to sidestep America's existing civil
and military courts to prosecute Al Qaeda and Taliban suspects in military
tribunals has lurched from one problem to another. Now the Pentagon is straining
to come up with a legal theory that will let it bring some 300 detainees before
the tribunals in the absence of specific evidence that they themselves have
committed war crimes. This is a distressing exercise. In the United States we do
not arrest people and then devise laws to prosecute and convict them. Public
confidence in the outcome of these trials demands a return to established
American legal principles, including independent court review.

The idea of special military tribunals dates back to the weeks immediately
following Sept. 11. It had obvious appeal to a president seeking to convey a
sense of wartime danger, a Pentagon eager to interrogate suspects for
information bearing on future attacks and a Justice Department impatient with
the procedural safeguards and inevitable delays of normal trials. A similar
logic led the administration to shortchange the legal requirements of the Geneva
Convention on Prisoners of War in its handling of Taliban and Al Qaeda
detainees, weakening an international treaty that also safeguards the rights of
American soldiers captured in battle.

Inventing a parallel legal system may be found to be constitutional under the
president's powers as commander in chief. But there is no compelling
justification for doing so and many good reasons not to, as a series of
embarrassing legal stumbles has illustrated. America's regular judicial system
has established an impressive record of convicting and punishing international
terrorists. Last year's embassy bombing trials provided a wealth of information
about Al Qaeda.

The latest problem involves the Pentagon's inability so far to tie many of the
detainees being held at the Guantanamo naval base to specific violations of the
laws of war. Few of the suspects have provided information to their
interrogators and none have confessed to atrocities or war crimes. To get around
this obstacle, administration officials are now considering charging these
people with being senior Qaeda members or officers of units that committed such
offenses. That would resemble the charge of conspiracy familiar in civilian
courts, but would depart from the practice of the Nuremberg war crimes tribunal,
where, for example, no one was convicted simply for membership in the SS.

Many of the crimes committed in relation to Sept. 11 and Al Qaeda operations in
Afghanistan are distinctive and may call for innovative prosecutorial
strategies, but not ones that depart from fundamental American principles of
justice. That is all the more reason to insist on independent judicial review of
these cases. Trying them in regular civilian or military courts is the best way
to assure this.

* * *


April 17, 2002

DETAINEES GAVE INFORMATION ON LINDH, PROSECUTORS SUGGEST

By Katharine Q. Seelye

WASHINGTON, April 16 - Lawyers prosecuting John Walker Lindh, the Californian
accused of fighting with the Taliban in Afghanistan, suggested in court papers
today that prisoners held in Cuba had supplied information about Mr. Lindh.

They made the suggestion in court papers saying they would allow Mr. Lindh's
defense lawyers to see the interviews, but they said they wanted the material
kept secret from potential witnesses and the public because it included
information related to continuing investigations.

The prosecutors offered no clue to what the material might say, but they said
they would give the defense summaries of 13 interviews with people held at
Guantanamo Bay, Cuba, suspected of belonging to Al Qaeda and the Taliban. They
referred to the information as "Brady material," a reference to a case in which
prosecution material was favorable to the defendant.

The government noted that the defense had not agreed to its request for secrecy
and wanted a hearing on the issue. The defense has not yet responded to today's
filing.

Court orders to keep such material secret have been granted in other cases,
including those involving suspects in the bombings of embassies in East Africa
and in the case of Zacarias Moussaoui, the French citizen accused of being the
"20th hijacker" in the Sept. 11 attacks.

Mr. Lindh is in jail in Alexandria, Va., during these pretrial proceedings. Jury
selection for his trial is scheduled to begin on Aug. 26.

He was indicted on Feb. 5 on 10 counts, including conspiracy to murder
Americans, which could carry life sentences. He was also charged with
contributing services to the Qaeda network.

The chief prosecutor, United States Attorney Paul J. McNulty, wrote in the court
papers that his investigation had involved and would involve "both classified
and unclassified material that relates to the ongoing federal law enforcement
investigation into Al Qaeda, including interviews of detainees captured in
Afghanistan and elsewhere and housed primarily at Guantanamo Bay, Cuba."

It was not clear whether the interviews or the summaries were provided to the
prosecution by other American interrogators or whether prosecutors went to
Guantanamo and interviewed prisoners themselves.

That information has been put under seal and parts are blacked out.

In preparing the material for disclosure to the defense team, the government
said it had blacked out the names of the interviewing agents, the file numbers
assigned, references to fellow detainees and the names of other people
identified by the detainees.

The government said it had not blacked out the detainees' real names or
"information about the defendant," suggesting that the detainees had discussed
Mr. Lindh.

Mr. McNulty, the chief prosecutor, said that "the intelligence gathered during
the interviews may be of critical importance to the national security because
detainees may reveal information leading to the identification and apprehension
of other terrorist suspects and the prevention of terrorist acts."

The prosecution said that so far, it had disclosed 1,400 pages of material,
including videotape, photographs and documents.

Of the 13 interviews, Mr. McNulty wrote: "The government recognizes that these
reports are not classified. Nevertheless, as the court will note in its review
of the documents in question, they do concern very sensitive matters, they do
concern ongoing investigations of compelling significance."

* * *


NYT April 16, 2002

RUMSFELD SUPPORTS DETAINING INMATE WITH U.S. CITIZENSHIP

By Katharine Q. Seelye

WASHINGTON, April 15 - Secretary of Defense Donald H. Rumsfeld contended today
that the United States government's continued detention of an American-born
prisoner who was captured in Afghanistan was justified, even though he had not
been charged or given access to a lawyer.

Mr. Rumsfeld dismissed questions about the status of the prisoner, Yasser Esam
Hamdi, as a "distraction," while civil liberties lawyers said Mr. Hamdi's
detention was extremely unusual in the United States.

Mr. Hamdi, who apparently has dual citizenship with the United States and Saudi
Arabia, was transferred from Afghanistan to the prison camp at Guantanamo Bay,
Cuba, on Feb. 11. Two months later, the government determined that he probably
had been born in the United States and flew him to a military base in Norfolk,
Va., where he has been held in a brig while his case remains in legal limbo.

Mr. Rumsfeld said that government lawyers were still discussing what to do with
Mr. Hamdi and that the case had not yet reached his desk. But he dismissed the
idea that Mr. Hamdi had been held too long.

The United States "has every right" to hold Mr. Hamdi so that he would not "go
right back out and engage in battle on behalf of the Al Qaeda or the Taliban, as
the case may be in this instance," Mr. Rumsfeld said.

"The idea that he's being held indefinitely - as though he's now in his fifth
year - of course is just silliness," Mr. Rumsfeld added. "We've had him a
relatively short period of time."

Justice Department officials said they were still determining Mr. Hamdi's
status. They are not sure whether he ever renounced his American citizenship,
officially or unofficially, or what legal consequences an unofficial
renunciation of citizenship would have.

Officials also said it was not clear if Mr. Hamdi was asserting any legal rights
as an American. "They're dealing with what it means to be a citizen," one
official said.

Mr. Rumsfeld suggested that Mr. Hamdi was among those prisoners taken in
Afghanistan who might know about future attacks.

"We're deeply concerned about getting intelligence from these folks," he said.
"They were captured on the battlefield. We want to try to prevent further
attacks. And it makes all the sense in the world to be doing exactly as we are
doing."

Human rights lawyers and civil libertarians say that holding an American in the
United States without charging him could be illegal.

"I don't know any law, international or domestic, that allows you to hold people
without charges, without bringing them before some kind of court, without any
access to lawyers, said Michael Ratner, president of the Center for
Constitutional Rights, based in New York. "You cannot have the executive branch
jail people arbitrarily."

Mr. Ratner said that the Pentagon had not made clear under what authority it was
holding Mr. Hamdi.

Mr. Ratner said his group was seeking access to Mr. Hamdi to offer him
representation. He said that if Mr. Hamdi was denied access, he would probably
take legal action to try to force the government to explain why it was holding
him.

* * *


NYT April 15, 2002

U.S. TREATMENT OF WAR CAPTIVES IS CRITICIZED

By Katharine Q. Seelye

WASHINGTON, April 14 -- In a harsh evaluation of American policy, Amnesty
International says the United States has violated several international laws in
its treatment of those captured during the war in Afghanistan and has failed to
live up to its statements that it is complying with the Geneva Convention.

"Despite repeated statements that it is committed to international law and
standards, the U.S. government is failing to meet its obligation to apply such
law and standards to those it has in its custody in Afghanistan and Guantanamo
Bay," the human rights organization says in a report to be released on Monday.
"In so doing, it has not only violated the rights of those individuals but
threatens to undermine the rule of law everywhere."

These rights, the report says, include the right to be informed of the reason
for detention, the right to prompt and confidential access to counsel of one's
choice and the presumption of innocence.

The report says the presumption of innocence has been undermined by "a pattern
of public commentary on the presumed guilt of the people" in American custody in
Guantanamo Bay.

The United States is holding 299 prisoners from more than 30 countries at the
United States Naval Air Station at Guantanamo Bay, Cuba, and about 240 prisoners
in Afghanistan. The government says it is treating the prisoners humanely, even
though it has denied them prisoner of war status, which would entitle them to
certain privileges.

Moreover, as the government has asserted in court papers, it is holding the
prisoners "under the president's authority as commander in chief and under the
laws and usages of war," and the detainees, as aliens with no connection to the
United States, are being held outside sovereign United States territory.

The Amnesty International report says the government was concerned about the
authority under which it was holding the prisoners and demonstrated this when it
discovered that one of them was an American and quickly transferred him out of
Guantanamo Bay.

The report said this quick transfer reflected "official concern" that the
American, who would have access to federal courts, "could have become a test
case for challenging the detention of all prisoners there."

The government has not yet scheduled any tribunals and has not charged any of
the prisoners at Guantanamo Bay with specific crimes. Nor have any of the
prisoners had access to lawyers. The military says that it is still
interrogating the prisoners and that its priority is to extract information that
could prevent attacks.

Secretary of Defense Donald H. Rumsfeld has said that because the prisoners are
terrorists, and may be connected with the Sept. 11 attacks, they may not be
released even if acquitted in military tribunals.

The Amnesty report says the military is keeping details of the capture and
detention of the prisoners too secret for the public to be able to evaluate what
it is doing. It cites news reports that the United States had transferred dozens
of prisoners from Afghanistan to Egypt, where, it says, they could be subject to
torture during interrogation.

Mr. Rumsfeld said such reports were irresponsible and wrong, but Amnesty says it
is concerned that he has not issued a categorical denial that prisoners under
American control could still be interrogated in other countries.

* * *


NYT April 6, 2002

BELIEVED TO BE A U.S. CITIZEN, DETAINEE IS JAILED IN VIRGINIA

By Katharine Q. Seelye

WASHINGTON, April 5 -- A prisoner from the war in Afghanistan who is believed to
be an American citizen was flown today to Norfolk, Va., from Guantanamo Bay,
Cuba, and locked up in a jail there.

The military considers the man, Yasser Esam Hamdi, an enemy combatant, but
officials said they did not yet know what to do with him. The Defense Department
has retained custody of him, although officials said he could be turned over to
the Justice Department.

But in order to move him to a civilian detention center, officials would have to
charge him with a crime; it is not clear at this point what charges he might
face. American investigators have not suggested that they have any statements
from Mr. Hamdi or any evidence that may implicate him in particular activities,
although he was first captured in November, along with John Walker Lindh of
California, after a prison uprising near Mazar-i-Sharif. He was taken to
Guantanamo on Feb. 11.

Officials said today that Mr. Hamdi's American citizenship was almost certain,
complicating his case for the United States. The officials were still unsure
whether he holds dual American-Saudi citizenship.

The military could keep Mr. Hamdi in custody and in theory could subject him to
a court-martial, because the Uniform Code of Military Justice allows anyone,
including American civilians, to be court- martialed if charged with war crimes.

Legal experts said his American citizenship would require the military to take
him before a military magistrate within 48 hours of his imprisonment on American
soil, although that could be done in secret.

This morning, the Pentagon dispatched a C-130 plane to the United States Naval
Air Station at Guantanamo Bay, where he was being held, and flew him first to
Dulles International Airport outside Washington and then to Norfolk. He was put
in the brig at the Norfolk Naval Air Station around 3 p.m.

He could be transferred to the custody of the Justice Department. Officials said
they were considering possible charges with the help of the guidelines they had
prepared before they charged Mr. Lindh.

The charges in the Lindh case are conspiracy to kill Americans, providing
support to terrorists and using destructive devices during crimes of violence.

The charges that fit within the guidelines, which the Justice Department said
would apply to any American found fighting with the Taliban, include treason,
which carries the death penalty; murder of American government employees, which
carries a life term; providing material support or resources to terrorists,
which carries a maximum of 15 years; and various conspiracy charges, which can
also carry life terms.

General Tommy R. Franks, the commander of the military operations in
Afghanistan, discussed Mr. Hamdi's situation briefly with reporters today but
shed little light on it. "I am not on the inside of the thinking about what the
next step should be with this man," he said.

Asked why it took five months to figure out he was an American citizen, General
Franks said, "I think from the very beginning there was possibility in
everyone's mind that he might be an American, because he spoke English."

* * *
* * *
* * *